8 - Constitutional Identity in Germany

Summary

The concept of constitutional identity (Verfassungsidentität) has been unfolded by the German Federal Constitutional Court (GFCC) to frame and control the process of European integration. Jurisprudence ranging from the renowned Solange to the famous Lissabon judgments has never been undisputed. Although not found in the wording of the German Basic Law, constitutional identity is nowadays mainly associated with the Basic Law’s Art. 79(3). Accordingly, the notion primarily comprises the protection of human dignity, the principle of democracy, the social state objective, and the rule of law. The GFCC exercises its control by a fundamental rights review, the ultra vires review, and the constitutional identity review. All three types lately seem to have been merged under the umbrella of constitutional identity review. Meanwhile, the concept of Integrationsverantwortung‘ (responsibility for integration) requires all German constitutional bodies to respect the European integration agenda and to protect German constitutional identity. Arts. 4(2) and (3) TEU underpin the necessity of close and constructive judicial dialogue between the ECJ and the national constitutional courts.