Power to the people? The "right of democracy" as opportunity structure for legal mobilization against the bond purchasing programs of the ECB

With its seminal ruling on the Maastricht Treaty, the German Federal Constitutional Court (BVerfG) has crafted a doctrine that elevates the fundamental constitutional principles in conjunction with the right to vote to the status of a "right of democracy." Crucially, by establishing a nexus between political rights of German citizens and European integration, the BVerfG has relaxed the admissibility criteria for constitutional complaints to an extent that has led observers to draw analogies to a popular action. In this paper, we depart from the observation that nearly all proceedings that concern an alleged breach of competences by EU bodies and/or breaches of the responsibility of integration on part of German governmental bodies have reached the BVerfG via constitutional complaints. How do plaintiffs exploit the right of democracy argumentatively in their attempt to gain access to the BVerfG and to activate its self-conscious prerogative of constitutional review in the domain of EU integration? In turn, how receptive is the BVerfG to the constitutional arguments advanced by plaintiffs? By addressing these questions, our paper establishes a link between doctrinal and socio-legal research. We theorize constitutional complaints as part of the legal-political opportunity structure that lend themselves to strategic litigation in the domain of European integration. We adopt a dynamic perspective on political opportunities where both the BVerfG and plaintiffs are mutually dependent on one another and work towards expanding on existing opportunities. To substantiate this interaction, we combine doctrinal legal analysis and qualitative content analysis, drawing both on the formative BVerfG judgments on the Maastricht and Lisbon Treaties, notices of appeal by plaintiffs litigating against bond purchasing programs of the European Central Bank (OMT, PSPP, and PEPP), and the respective BVerfG decisions on these constitutional complaints.