The commentary, especially from abroad, on the Federal Constitutional Court’s judgment concerning the bond-buying programme undertaken by the European Central Bank (ECB) conveys the impression that something unimaginable has occurred. The German court has refused to follow the ruling of the Court of Justice of the European Union (CJEU), thereby setting “a bomb under the EU legal order.”1 Yet there is nothing new about the risk of conflict between the two courts. It came about when the Court of Justice of the European Union implicitly presumed, in 1963,2 and explicitly declared, in 1964,3 that European law takes precedence over domestic law, even over domestic constitutional law. This view was by no means without alternative, given that the Treaties of Rome do not address the precedence of Community law. The Member States involved in the dispute denied having agreed to any such precedence in the Treaties. Even the CJEU’s Advocate General was unable to find any basis in the Treaties for the precedence of European law.4 The CJEU derived the precedence of European law from the purpose of the European Economic Community.5 It argued that there could be no common market if each Member State applied and interpreted European law however it saw fit.

The Basic Law, whose 60th anniversary we celebrate today, is not identical with the Constitution that was enacted on 23 May 1949. In the sixty years of its existence, it has been amended fifty-four times. Further amendments are under way. Many amendments concerned more than just one article. A little more than half of the 146 articles of the original text still read as they were framed in 1949. However, twenty-six of these unchanged articles are part of the “Transitional and Concluding Provisions.” A number of them were limited to one singular act of application, such as Art. 136 I (“The Bundesrat [Federal Council] shall convene for the first time on the day the Bundestag [national parliament] first convenes.”), and lost their normative value with the completion of the given act. A little less than half of the original articles, and the Preamble, have been subject to amendments; some of them several times. The forerunner is Art. 106 (apportionment of tax revenue), with six amendments. In addition, forty-seven articles have been added to the original text, some of which were repealed later.

German Constitutional Court decision of 30 June 2009 on the compatibility of the Lisbon Treaty with the German Constitution – Overview of earlier case-law – Analysis of the judgment – Comparison with earlier case-law – The Court's reference to sovereignty – The concept of democratic legitimacy – Participation of the German Parliament – Transformation of the EU into a state – Creeping evisceration of state legislative authority – Assessment of the judgment

Constitutional adjudication is as old as democratic constitutionalism. But for a long period of time, the United States of America remained alone in subjecting democratic decision-making to judicial review. While constitutions had become widely accepted already in the 19th century, it took almost two hundred years until constitutional adjudication has gained world-wide recognition. In the 19th century, only Switzerland entrusted its Supreme Court with competencies in the field of constitutional law, yet, not including review of federal legislation. All other attempts to introduce constitutional adjudication failed. This is also true for Germany where the constitution of 1849 had provided for judicial review in an ample manner. But the constitution adopted by the revolutionary Paulskirchen Assembly did not enter into force because the monarchs refused their consent after the revolution had been put down.