Resistance to European Law and Constitutional Identity in Germany: Herbert Kraus and Solange in its Intellectual Context

Abstract

This article recasts our understanding of the Federal Constitutional Court's Solange decision by tracing its lineage within the domestic context and as part of a new history of EU law. The external dynamic of the decision, a moment of judicial discourse between two of Europe's highest panels, has been the focus of many studies. Much rarer are attempts to embed the decision within its internal context: the struggle within the German legal academy to accept the primacy of EU law. Central to this contextualisation is the reinvigoration of the 'structural congruence' theory of Herbert Kraus, which long shaped the German reception of EU law. This article recounts Kraus' theory, tracing the struggle for the German legal consciousness between three positions: constitutionalists, traditionalists, and the congruence advocates. While Hallstein's constitutionalism is most closely associated with Germany's early Europhilia, even he admitted by 1975 that Kraus had won the day.