A positive approach to debating the supremacy of EU law

In this chapter, I show that ambiguity about the absolute and unconditional supremacy of EU Law is consistent with moderate, rather than polarizing, rulings. If one court (either ECJ or national) knows, with certainty, that they are supreme, then they have no incentive to deviate from their prevailing preferences. Horizontal precedents are only respected if they do not generate dispositional losses. Vertical precedents are respected by lower courts under a strict principle of supremacy. However, if one court anticipates that supremacy is debatable, then they must consider the preferences of all courts to avoid losing legitimacy. In equilibrium, precedents are respected if and only if all courts are reasonably satisfied with case law.