Willkür und Offensichtlichkeit. Die verfassungsgerichtliche Prüfung einer Verletzung von Art. 101 Abs. 1 S.2 GG i. V. m. Art. 267 Abs. 3 AEUV

In the light of recent modifications in the case law of the German Constitutional Court concerning Article 101(1) of the Basic Law in conjunction with Art.267(3) TFEU, the article analyses the »new« legal test the Court applies in this context. To reach a better understanding of the Court's new legal approach, the article demonstrates that one must differentiate between the standard (»Prüfungsmaßstab«) and the intensity (»Prüfungsdichte«) of the judicial review. After dealing with various criticisms within the academic literature, it is argued that both components of the Court's legal test are convincing, the standard – now referring to Art.267(3) TFEU and the jurisdiction of the ECJ – as well as the to a mere »review for arbitrariness« restricted intensity of the judicial review. It is further demonstrated how this rather complex legal test can be applied in a consistent manner. Finally, the article shows on the basis of recent case law of the Constitutional Court that the Court does not fully implement its new legal test, but remains partially attached to its traditional approach.