Author: *Dr Sharifullah Dorani
Original Publication: Political Reflection
Date of Publication: 24 March 2021
Photo credit: Claudia Solano/Pexels
Key Comment
This essay examines the Federal Constitutional Court (FCC) of Germany’s recognition of the supremacy of EU law and its implications for domestic sovereignty. It traces three stages of German judicial attitudes—from unconditional acceptance to conditional oversight, via the Solange I/II and Brunner decisions—highlighting the tension between EU integration and the constitutional protection of fundamental rights. The essay demonstrates how EU law interacts with national constitutions, making it relevant to both legal studies and international relations.
Summary of the Article
1. German Court System and EU Integration – Germany is a dualist system, with five separate court systems and the FCC as the ultimate constitutional arbiter. Article 23 of the German Constitution allows limited transfer of sovereignty to the EU while protecting fundamental rights.
2. Stage One (1960–70): Unconditional Recognition – Early FCC rulings (Re Tax, Lutticke) accepted EU law supremacy and the ECJ’s authority, following the precedents of Van Gend en Loos and Costa. Directly effective EU law was recognised by German courts, and lower courts were instructed to disregard incompatible national laws.
3. Stage Two (1970–90): Conditional Acceptance via Solange I/II – Concerns over EU protection of fundamental rights led to Solange I (1970), where the FCC claimed jurisdiction to review EU law against German constitutional standards. Solange II (1987) softened the stance, accepting the supremacy of EU law as long as the protection of EU fundamental rights matched German standards. The FCC affirmed the indirect effect of directives and set a precedent for cooperation with the ECJ.
4. Stage Three (1990–2020): Further Conditions in Brunner and Beyond – The Brunner decision (1994) emphasised that the EU is a federation of sovereign states, with powers granted by member states. The FCC retained the right to review EU acts for ultra vires breaches, as in the 2020 bond-buying case. The FCC’s approach balances EU legal supremacy with constitutional safeguards, creating conditional compliance rather than unconditional acceptance.
5. Impact on Lower Courts and International Law – Lower courts accepted EU law supremacy, applying principles such as state liability (Brasserie du Pecheur, 1997) and indirect effect, while respecting FCC guidance. The German experience demonstrates the complex interplay between domestic constitutional authority, supranational EU law, and international relations.
Relevance to International Relations
This essay is highly relevant to International Relations (IR) because it illustrates how legal mechanisms mediate state sovereignty within a supranational entity. The EU represents a unique model of regional integration where states voluntarily pool sovereignty while retaining ultimate constitutional authority, as seen in Germany’s FCC.
Understanding the conditional acceptance of EU law by national courts provides insights into:
• State sovereignty vs supranational governance – How countries reconcile domestic constitutional authority with EU obligations.
• Compliance and enforcement in international law – How courts shape states’ adherence to treaties and supranational rulings.
• Interstate cooperation and conflict management – FCC rulings, such as Brunner and the 2020 ECB case, highlight negotiation between EU institutions and member states.
• Policy-making implications – Legal interpretations affect European foreign and economic policy, impacting trade, finance, and human rights protections across borders.
In short, the German case is a practical example of how international law, domestic law, and supranational authority intersect—a core concern for IR scholars and practitioners alike.
Conclusion
• The FCC has largely accepted EU law supremacy, albeit with conditional reservations to protect German constitutional rights.
• The ultra vires doctrine allows the FCC to intervene if EU institutions exceed the powers granted by Germany, but practical application remains rare.
• German courts maintain a cooperative relationship with the ECJ, recognising EU law supremacy while asserting constitutional review powers.
• The FCC’s approach ensures EU integration is balanced with domestic sovereignty, offering lessons in constitutional safeguards and international law compliance relevant to both law and international relations.
➡Link to the article: The Supremacy of EU Law over German Law: EU Law vs National Law
*Dr Sharifullah Dorani holds a PhD from Durham University on America’s Afghanistan War, a Master of Laws from University College London, and a degree in law from the University of Northampton, all in the UK. He is the author of numerous scholarly articles and two acclaimed books: The Lone Leopard, a novel set in Afghanistan, and America in Afghanistan, published by Bloomsbury Publishing. He is the founder of CEPSAF and serves as the South Asia and Middle Eastern Editor at CESRAN International. All of Dr Dorani’s work is written to the highest academic standards, is widely indexed through Google Scholar, and is available in the libraries of hundreds of institutions worldwide, including Oxford and Harvard.