The Court of Justice of the EU & the Real Doctrine of Supremacy

European Politics Fundamentals

Chapter 5 · The Court of Justice of the EU & the Real Doctrine of Supremacy

Chapter 1 introduced Van Gend en Loos and Costa v. ENEL as the foundation of the EU's own legal order. This chapter gives the Court that decided them its own full treatment, traces supremacy's real, much further-reaching development, and closes with an honest, unresolved complication: a national top court that, in 2020, told the CJEU its own ruling simply didn't apply.

The CJEU's Real Structure

Two Courts, One Institution, Based in Luxembourg

The Court of Justice of the European Union (CJEU) is actually two separate courts. The Court of Justice itself has one judge per member state (27), hearing references from national courts and infringement cases (Chapter 2). The General Court has 54 judges — two per member state — handling certain direct actions. Judges are appointed by common accord of member state governments for renewable six-year terms, and elect their own President and Vice-President for three-year terms.

Supremacy, Extended: Internationale Handelsgesellschaft (1970)

A bigger claim than Costa v. ENEL ever made Costa v. ENEL (1964) established that EU law overrides conflicting ordinary national law. Six years later, the CJEU went considerably further: it ruled that EU law's validity cannot be challenged even on the grounds that it conflicts with fundamental rights enshrined in a member state's own national constitution. No provision of national law, "of any nature whatsoever," can override EU law — a real, much larger claim than Costa's own more modest framing.

The Court's own real compromise, in the same ruling Aware of how provocative this claim was, the CJEU simultaneously committed itself to protecting fundamental rights as "general principles" of EU law, "inspired by the constitutional traditions common to the Member States." This wasn't written into any treaty — it was the Court's own self-imposed check, designed to make the expanded supremacy claim politically survivable.

Making Supremacy Practical: Simmenthal (1978)

No Waiting Required

Simmenthal established the real mechanism that makes supremacy work day to day: a national court facing a conflict between EU law and national law must set the national law aside itself, immediately, using its own authority — without needing to wait for the national legislature to repeal the law, or a national constitutional court to formally strike it down. This is what turns supremacy from an abstract principle into something an ordinary national judge can actually act on in a single case.

The Real Pushback: Germany's "Solange" Doctrine

Internationale Handelsgesellschaft's own expanded claim didn't go unanswered. Germany's Federal Constitutional Court responded with what became known as the Solange ("as long as") doctrine: it reserved the right to review EU measures against German constitutional fundamental-rights standards, specifically for as long as EU-level protection wasn't considered adequate. This wasn't a rejection of supremacy outright — it was a conditional acceptance, with Germany's own top court keeping a real, standing check in reserve.

The Real, Unprecedented Moment: 5 May 2020

A National Court Declares a CJEU Ruling "Ultra Vires" In 2018, the CJEU's own Weiss judgment had confirmed that the European Central Bank's Public Sector Purchase Programme (PSPP) — a large-scale bond-buying program — fell within the ECB's real legal mandate. On 5 May 2020, Germany's Federal Constitutional Court ruled, for the first time in EU legal history, that this CJEU judgment itself was ultra vires — beyond the EU's real competence — and therefore not binding within Germany. The German court's own stated reasoning: the CJEU hadn't properly scrutinized whether the ECB had exceeded its mandate, a procedural failure serious enough, in the German court's own view, to justify simply declining to follow it.

Why this matters more than it might first appear Simmenthal says a national court must set aside conflicting national law in favor of EU law. The 2020 German ruling did something structurally different and far more direct: a national constitutional court set aside a CJEU judgment itself, rather than a conflicting national statute. Supremacy, even after six decades of real, consistent legal development, remains genuinely unresolved at its own outer edge — this course's own recurring theme from Chapter 1 (the EU as sui generis) shows up here in its sharpest form yet.

Tracing the Doctrine's Real Development

Case	Year	Real Advance
Van Gend en Loos	1963	Established direct effect — individuals can invoke EU law directly
Costa v. ENEL	1964	Established supremacy over conflicting ordinary national law
Internationale Handelsgesellschaft	1970	Extended supremacy over national constitutional provisions, with a self-imposed fundamental-rights compromise
Simmenthal	1978	Empowered national courts to set aside conflicting law immediately, on their own authority
The German PSPP/Weiss ruling	2020	A national top court declared a CJEU ruling itself non-binding — the doctrine's own sharpest real challenge yet

Hands-On Exercises

Exercise 1 — Costa vs. Handelsgesellschaft

Explain the real, precise difference in scope between what Costa v. ENEL (1964) established and what Internationale Handelsgesellschaft (1970) added on top of it.

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Exercise 2 — Simmenthal in Practice

A national judge discovers that a national statute conflicts with a directly effective EU regulation. Using the real Simmenthal principle, explain what the judge is required to do, and what the judge does not need to wait for first.

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Exercise 3 — Why 2020 Was Different

Using the real Simmenthal principle and the real 2020 German PSPP/Weiss ruling, explain the structural difference between a national court setting aside a conflicting national law (as Simmenthal requires) and a national court setting aside a CJEU ruling itself (as the German court did in 2020).

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Quick Reference — Chapter 5

The CJEU consists of two courts (the Court of Justice, one judge per member state; the General Court, two per member state), both based in Luxembourg, with judges serving renewable six-year terms
Internationale Handelsgesellschaft (1970) extended supremacy over national constitutional provisions, while committing the CJEU itself to protecting fundamental rights as general principles of EU law
Simmenthal (1978) empowered national courts to set aside conflicting national law immediately, without waiting for legislative repeal or a constitutional court ruling
Germany's "Solange" doctrine reserved a conditional right to review EU measures against national fundamental-rights standards
On 5 May 2020, Germany's Federal Constitutional Court declared a CJEU ruling (Weiss, on the ECB's PSPP bond-buying program) itself ultra vires and non-binding in Germany — the first time a national top court has directly challenged a CJEU judgment this way

What's Next

Chapter 6: The Ordinary Legislative Procedure: How an EU Law Actually Gets Made.