Power to the people – power to the court? Constitutional complaints and the legal mobilisation of the ‘right to democracy’

Abstract Since its ruling on the Maastricht Treaty, the German Federal Constitutional Court has developed a doctrine that elevates the fundamental constitutional principles in conjunction with the right to vote to the status of a ‘right to democracy’. In this Article, we explore how plaintiffs draw on the right to democracy in an effort to activate the Court’s self-asserted prerogative of ultra vires and identity review and keep Karlsruhe in the game of adjudicating on the conditions and boundaries of European integration. We assume that the legal opportunities associated with constitutional complaints invoking the right to democracy involve a dynamic, interdependent relationship where (the same) plaintiffs build on existing case law to develop legal arguments and where the Court evaluates, refines and codifies these arguments. To substantiate this interactive process of an expansion of legal opportunities, we draw on a largely untapped data source and use the original pleadings in four cases against the Outright Monetary Transactions (OMT) and the Public Sector Purchase Programme (PSPP) of the European Central Bank, linking these complaints to the respective court decisions.