Mehr Freiheiten für den nationalen Gesetzgeber! Die Rechtsprechung des EuGH und des BVerfG zur zeitlichen Beschränkung von Urteilswirkungen

Preliminary rulings under Art. 267 TFEU may refer to the validity or the interpretation of an act of European Union law. As far as the latter is concerned, the Court of Justice of the European Union (CJEU) specifies the meaning and scope of a rule of European law as it is to be, or ought to have been, understood and applied from the time of its coming into force. Interpretative judgements therefore have, in principle, retroactive effect. Due to the primacy of EU law, national legislation which proves itself incompatible with the Court's interpretation cannot even be applied to legal relationships established before the Court's judgment. This may have serious implications for the Member States, especially in the case of requests for a preliminary ruling with regard to national tax law. Member States may have to refund tax payments running into millions. Nevertheless, the CJEU limits the temporal effect of its judgments only in certain specific circumstances. Such a step is only taken where it appears that Member states have been led into practices not complying with European Union law by reason of objective, significant uncertainty regarding the implications of European Union law, to which the conduct of other Member States or institutions of the European Union may have contributed. In addition, there has to be a risk of serious economic repercussions owing in particular to the large number of legal relationships entered into in good faith on the basis of rules considered to be validly in force. Until now, there have been not many cases in which the Court considered these criteria as having been met. In contrast, the legal practice of the Federal Constitutional Court of Germany often makes exceptions to the retroactive effect of its rulings concerning the validity of national legislation. For reasons of legal certainty and to avoid serious adverse effects on public interests, it sometimes even determines the temporary continued validity of legislation. Although the competencies of the CJEU and the Federal Constitutional Court differ to some degree, the factual effects of their rulings regarding the interpretation or rather the validity of legislation are the same. Therefore, the reasons which lead to exceptions with respect to retroactive effects in the rulings of the Federal Constitutional Court also apply to interpretative rulings of the CJEU. Both types of rulings encroach upon the competencies of the legislator and both courts have to observe the principle of legal certainty as it also applies to the law of the European Union. As a result, the legal practice of the Federal Constitutional Court may serve as a guideline for a practice of the CJEU which allows for the interests of the Member States to a greater extent. To this end, it appears sufficient to apply the criteria for the limitation of the temporal effects of interpretative rulings established by the CJEU in a more generous manner.