## Facts

- A German trading company sought an import license to bring preserved mushrooms from Taiwan into Germany under EEC agricultural market regulations.
- A federal administrative agency denied the license based on an EEC implementing regulation.
- German administrative courts upheld the denial; the Federal Administrative Court referred validity questions to the European Court of Justice (ECJ).
- The ECJ upheld the regulation’s validity, after which the company filed a constitutional complaint alleging violations of German fundamental rights and the Basic Law’s “lawful judge” guarantee.

## Issues

1. Whether the ECJ qualifies as a “lawful judge” under Article 101(1) sentence 2 of the Basic Law, and whether use of the preliminary-reference procedure violated that guarantee.
2. Whether the Federal Constitutional Court should continue to review EEC secondary law applied in Germany against the Basic Law’s fundamental rights standard.
3. If review were available, whether applying the EEC import-licensing regulation violated the complainant’s fundamental rights.

## Decision

- The Federal Constitutional Court rejected the constitutional complaint.
- The ECJ was held to be a “lawful judge” under Article 101(1) sentence 2 of the Basic Law; ECJ procedures were found consistent with rule-of-law requirements, including the right to be heard and defense rights.
- The court declared that it would, in general, refrain from reviewing EEC secondary law against Basic Law fundamental rights so long as EEC fundamental-rights protection remains effectively guaranteed and essentially equivalent to the Basic Law’s minimum protection, particularly protection of the rights’ essence.
- No violation was found of the complainant’s procedural guarantees (including judicial protection and the right to be heard) by the German courts’ handling of the case.

## Legal Principles

- The ECJ is a “lawful judge” within the meaning of Article 101(1) sentence 2 of the Basic Law when acting within treaty-based competences and procedures.
- So long as the European Communities, especially through ECJ case law, generally ensure effective fundamental-rights protection essentially equivalent to the Basic Law (including protection of the core content of rights), the Federal Constitutional Court will not review EEC secondary law applied by German authorities and courts under the Basic Law’s fundamental rights.
- Under this conditional restraint, requests seeking such review via Article 100(1) of the Basic Law are inadmissible.
- The reservation is conditional: the court retains authority to reengage if the general level of Community fundamental-rights protection ceases to meet the equivalence threshold.

## Conclusion

The court adopted a conditional nonreview approach: because Community-level fundamental-rights protection was deemed generally effective and essentially equivalent to Basic Law standards, German constitutional review of EEC secondary law on fundamental-rights grounds was suspended, and the complainant’s challenge to the import-licensing regulation failed.


Re Wünsche Handelsgesellschaft GmbH (Solange II), 73 BVerfGE 339 (Fed. Const. Ct. 1986)