So long, Europe? The Comparison between Occupation Law and EU Law by the German Federal Constitutional Court in Solange I

The aim of the paper is to contribute to the debate on the relation between EU Law and Member State Law by reconstructing and interpreting one of the most important court decisions related to the field of EU law, i.e., the 1974 Solange I decision by the Second Senate of the German Federal Constitutional Court (FCC). Through this decision, the fundamental principle of supremacy of EU law was called into question. With the ruling, the Court reserved for itself the right under certain conditions to review directly applicable EU law in light of the German constitution, as long as there was no protection of fundamental rights in EU law comparable to the level of protection guaranteed by the German constitution. As a result, the respective law of European legal origin could be declared inapplicable for Germany. I will focus on a subsection of the decision that has so far more or less been ignored by legal scholarship. This is the subsection in which the Second Senate justified its modification of the court proceedings that were necessary with regard to the special relationship between EU law and domestic law. The question at stake was to which extent the court proceedings had already been subject to an extension in order to make the review of an act possible that is not a German act of state. The Second Senate referred to several decisions by the First Senate of the FCC that dated back to the 1950s and in which the Court had to decide upon its jurisdiction to review laws that were enacted by the occupation authorities or by the German Bundestag. According to the Second Senate, the negative outcome of these decisions had changed after the 1955 Bonn-Paris Conventions through which Germany had regained its sovereignty and the status of the occupation troops had changed within the framework of the Foreign Forces Agreement. The FCC had gained the jurisdiction to review occupation law under certain conditions and to a certain extent. Astonishingly, the Second Senate refers to this change in the jurisprudence when claiming its jurisdiction to review directly applicable EU law. The question I will raise in my paper is therefore whether the FCC explains the effects of the EU Treaties through a comparison with Treaties that permit the exertion of military-related sovereign rights on alien territory. To answer this question, I will proceed in three steps. First, the question at stake in Solange I shall be outlined. Second, the legal effects of the 1955 Paris Treaties shall be elaborated. Third, the reasons that led the Court to draw the aforementioned comparison shall be critically evaluated.