Resistance to E uropean Law and Constitutional Identity in G ermany: H erbert K raus and S olange in its Intellectual Context

This article recasts our understanding of the F ederal C onstitutional C ourt's S olange 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 E urope'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 H erbert K raus, which long shaped the G erman reception of EU law. This article recounts K raus' theory, tracing the struggle for the G erman legal consciousness between three positions: constitutionalists, traditionalists, and the congruence advocates. While H allstein's constitutionalism is most closely associated with G ermany's early E urophilia, even he admitted by 1975 that K raus had won the day.