German Constitutional Court Rules that Treaty Overrides by National Statutory Law are Permissible under the Constitution (February 12, 2016) [1]
On February 12, 2016, the German Constitutional Court (Court) published a decision [3] confirming that the German legislature is not prohibited from adopting laws that contravene international treaties. According to the press release [4], the case arose from a question posed by the Federal Court of Finance, which sought clarification on whether a newly adopted law may infringe rights conferred on tax payers under a double taxation treaty between Germany and Turkey. The law at issue in the case provides that “the exemption ‘will only be granted, irrespective of the applicable [double taxation] treaty’” if certain conditions are met. The Court confirmed the validity of the treaty override, noting that “[t]he legislature is not barred from enacting statutes even if those contravene international treaties.” The Court further stated that within the hierarchy of norms in German law “international treaties have the same rank as statutory federal law,” and stressed that the “principle of democracy requires that . . . later legislatures be able to revoke legal acts of previous legislatures.” Finally, the Court decided that “[n]either the rule of law nor the principle of the Constitution’s openness to international law . . . yield a different result. Although the latter principle is also of constitutional rank, it does not entail an absolute constitutional duty to obey all rules of international law.”