German Federal Constitutional Court Strengthens Role of ECJ as Lawful Judge in German Cross-Border Tax Matters

Abstract

The German Federal Court passed a verdict (IR 73/16) emphasizing the importance of ECJ case law for cases regarding cross-border transfer pricing issues. The decision regards a cross-border loan that was allegedly not at arm’s length due to the lack of sufficient collateral provided. The German Federal Court ruled that, in order to prevent eroding the ECJ’s importance, ECJ case law must be considered by national courts and that the ECJ must be consulted in situations where clear guidance or interpretation from the ECJ under the acte clair and acte éclairé doctrines is not available.