Introduction
The principle of supremacy, or primacy, of European Union (EU) law is a fundamental doctrine of the EU’s legal system. It dictates that where there is a conflict between EU law and the national law of a Member State, EU law prevails. This principle is not explicitly stated in the EU Treaties but was developed by the Court of Justice of the European Union (CJEU). This essay will critically assess the extent to which supremacy is established, arguing that while the CJEU asserts an absolute version of the doctrine, its practical establishment is conditional and subject to challenge, as demonstrated by the constitutional jurisprudence of Germany. The principle is therefore established through a continuous dialogue between courts rather than a rigid hierarchy.
The CJEU’s Declaration of Supremacy
The CJEU has been the primary architect of the supremacy principle, establishing it through a series of landmark rulings. The groundwork was laid in Van Gend en Loos (1963), where the Court stated that the EU constitutes a "new legal order of international law" for which states have limited their sovereign rights. This paved the way for the direct assertion of supremacy in Costa v ENEL (1964). In this case, the CJEU held that the law stemming from the Treaty, an independent source of law, could not be overridden by domestic legal provisions. To allow otherwise would undermine the basis of the EU legal order.
The CJEU has consistently expanded upon this foundation. In Internationale Handelsgesellschaft (1970), the Court confirmed that EU law takes precedence even over the fundamental rights provisions of a national constitution. Furthermore, in Simmenthal (1978), it was established that every national court has a duty to apply EU law in its entirety and to set aside any conflicting provision of national law, whether prior or subsequent to the EU rule. From the CJEU’s perspective, therefore, supremacy is an absolute, unconditional and essential feature of the EU legal order, necessary for its uniform and effective application.
The German Constitutional Court’s Conditional Acceptance
While the CJEU’s position is clear, the reception of supremacy by national constitutional courts has been more qualified. The German Federal Constitutional Court (FCC), or Bundesverfassungsgericht, provides a compelling example of this conditional engagement. While generally accepting the need for EU law to be effective, the FCC has always maintained that its authority, and Germany's participation in the EU, flows from the German Basic Law (Constitution).
This tension was evident in the FCC’s Solange I decision (1974). The FCC declared that, as long as the EU lacked a directly elected parliament and a codified catalogue of fundamental rights equivalent to the German Basic Law, it reserved the right to review EU legislation for compliance with German fundamental rights. This was a direct challenge to the absolute supremacy asserted in Internationale Handelsgesellschaft.
The FCC later softened this stance in Solange II (1986), stating that as long as the EU generally ensured effective protection of fundamental rights, the FCC would no longer exercise its jurisdiction to review EU law. However, this was a statement of judicial restraint, not a surrender of jurisdiction. The FCC has continued to assert its authority, notably in its Lisbon judgment (2009), where it affirmed its competence to conduct ultra vires review (to check if the EU has acted beyond its conferred powers) and to protect Germany's inviolable "constitutional identity". This shows that from the German perspective, supremacy is accepted as a rule of the game, but one that is policed by the national constitutional court, which sets the ultimate limits. The more recent Weiss (2020) judgment, which held that the CJEU had acted ultra vires in a case concerning the European Central Bank, confirms that this constitutional tension is not merely historical but an ongoing reality.
Conclusion
In conclusion, the principle of supremacy is well-established as a core doctrine from the perspective of the CJEU, which presents it as an absolute requirement of the EU legal order. It is also a principle that is, for the most part, respected in the day-to-day operation of law in the Member States. However, its establishment is not unqualified. The approach of the German Federal Constitutional Court demonstrates that powerful national courts view supremacy as a principle derived from, and limited by, their own national constitutions. They have reserved the right to review EU law in exceptional circumstances, particularly concerning fundamental rights, the scope of EU powers, and national constitutional identity. Therefore, the extent to which supremacy is "established" is a matter of perspective; it is fully established in the jurisprudence of the CJEU, but it remains a conditional and contested principle within the constitutional frameworks of Member States like Germany.
References
- Costa v ENEL (Case 6/64) [1964] ECR 585.
- Internationale Handelsgesellschaft mbH v Einfuhr- und Vorratsstelle für Getreide und Futtermittel (Case 11/70) [1970] ECR 1125.
- Lisbon Judgment, BVerfG, 2 BvE 2/08 (30 June 2009).
- Simmenthal SpA v Amministrazione delle Finanze dello Stato (Case 106/77) [1978] ECR 629.
- Solange I, BVerfGE 37, 271 (29 May 1974).
- Solange II, BVerfGE 73, 339 (22 October 1986).
- Van Gend en Loos v Nederlandse Administratie der Belastingen (Case 26/62) [1963] ECR 1.
- Weiss and Others, BVerfG, 2 BvR 859/15 (5 May 2020).
