Retroactive effect

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The legal concept of retroactive effect deals with the legal question of whether laws can develop their effect for periods before they come into force . In legal terms , it is a material constitutional requirement with regard to the temporal and, if applicable, spatial scope.


Retroactive effect would contradict one of the basic conditions of liberal constitutions , the principle of legal certainty of the legal order , and is therefore fundamentally not permitted. In general, everyone should be able to trust that their lawful actions will not have a negative effect later on.

The prohibition of retroactivity basically forbids that, in the case of state files , any other consequence is linked to past actions, i. This means that no other punishment may be imposed than was intended at the time of the criminal act. Otherwise, it would be problematic that the addressee of the standard would not have been able to adjust to this consequence at the time of his or her original behavior.

The non-retroactivity has its roots in the rule of law . The reasoned there principle of protection of legitimate means protection of confidence in the durability and sustainability of the laws. Anyone who is affected by a law can rely on the validity of the provision.

An exception can be made in the following cases:

  • if the trust of the citizen is not worthy of protection, so he had to reckon with a new regulation;
  • if he could legitimately not trust at all,
  • if he is only better off with the new regulation,
  • if compelling reasons of the common good require retroactive effect,
  • if a void law is replaced by a new regulation or
  • if the previous legal situation is unclear.

This principle is expressly laid down in a large number of international treaties , such as Article 7 of the European Convention on Human Rights , Article 9 of the American Convention on Human Rights and Article 15 of the International Covenant on Civil and Political Rights . The principle is also anchored in national legal sources. In Germany it is regulated in Article 103, Paragraph 2 of the Basic Law and is taken up again in Section 1 of the Criminal Code . In tax law or administrative law , retroactive effects should regularly be problematic ( nullum tributum sine lege ).

Conceptual classification

The Federal Constitutional Court has shaped the distinction between genuine and false retroactive effects . Conceptually, the 1st Senate differentiates between genuine and false retroactive effects. In contrast, the 2nd Senate has not used these two terms for years. Rather, it distinguishes between the retroactive effect of legal consequences and a factual retroactive connection independent of the concept of retroactive effect .

The question of a sufficiently long legislative vacancy , on the other hand, is forward-looking and relates to the period that passes between its promulgation and its entry into force.

Real retroactive effect

The real retroactive effect occurs when the beginning of the temporal scope of application of a law is fixed at a point in time that precedes the point in time at which the law becomes valid. In this case, there is a retrospectively changing intervention in a closed situation that belongs to the past. A real retroactive effect would contradict one of the basic conditions of liberal constitutions , the principle of the reliability of the legal system (legal security), and is therefore not permitted. In principle, everyone must be able to trust that they will not be accused of having acted lawfully at a later point in time (protection of legitimate expectations).

Exceptions are made, however, if

  • the trust of the citizen is not worthy of protection, so he had to reckon with a new regulation,
  • a void law is replaced by a new regulation,
  • compelling reasons of the common good require retroactive effect,
  • a law that is only formally unconstitutional is formally duly re-enacted with retroactive effect
  • or the previous legal situation is unclear and confused.

In the latter case, a trust worthy of protection cannot have existed from the outset.

Retroactive legal consequences

The legal consequences of a standard should occur for a certain period of time prior to its promulgation ( temporal scope ). The 2nd Senate, like the 1st Senate, determines the principle and exceptions for genuine retroactive effects .

False retroactive effect

In the case of spurious retroactive effects , the legal consequences of a law only come into effect after the norm has been promulgated, but the factual nature of the act includes facts that were "put into practice" before it was promulgated. In this variant, the regulations tie in with current, as yet unresolved issues with legal consequences for the future, whereby the affected legal position acquired in the past is subsequently devalued.

If the false retroactive effect is possible in principle, a weighing of interests and goods, taking into account the protection of legitimate expectations, the fundamental rights and the meaning and purpose of the law by z. B. to grant transitional regulations to the data subject protection of legitimate expectations if his trust worthy of protection outweighs the previous legal status.

Factual link back

For future legal consequences, a standard is linked to circumstances from the time before the standard was promulgated ( material scope of application ). However, like the 1st Senate, the 2nd Senate determines the principle and exceptions in the case of false retroactive effects .

Retroactive effect in administrative law

In administrative law, one often encounters the retroactive effect of administrative acts . The withdrawal ( § 48 VwVfG ) of an unlawful administrative act either retroactively affects the point in time at which it was enacted and became effective ( ex tunc ) or it loses its effect for the future ( ex nunc ) ( § 48 para. 1 sentence 1 VwVfG ). However, the revocation of a lawful administrative act ( § 49 VwVfG) i. d. Usually only for the future. Here, too, an administrative act can be revoked for the past in the case of cash or non-cash benefits under certain conditions ( Section 49 (3) VwVfG).

It should be noted that on July 7, 2010, a significant decision in this connection was made by the Federal Constitutional Court ( speculation period for the sale of land and shares in companies, as well as the taxation of severance payments and similar compensation). According to this, the subsequent taxation of "already existing, tax-free acquired increases in value" cannot be justified by "the mere intention of generating additional government income". This gave priority to the protection of legitimate expectations over retroactive tightening. Increases in value that were or could have been received tax-free before the introduction of the new law may not be subject to retrospective taxation.


Retroactive effect in international law

The retroactive effect of laws in international law plays a special role . According to Article 7, Paragraph 2 of the European Convention on Human Rights , the prohibition of retroactivity does not exclude “that someone will be convicted or punished for an act or omission which at the time of its commission was punishable according to the general legal principles recognized by civilized peoples.” These include for example genocide or crimes against humanity . On this legal basis, for example, dictators can be punished .


In the Swiss constitution, contrary to the situation in almost all other constitutional countries, there is no prohibition of retroactive effects, neither false nor genuine. This is due to the fact that the role of popular initiatives is constitutionally higher. Therefore, within the framework of such a law, it is possible to anchor a law in the constitution that is retroactive and also affects cases that have already been closed. The only exceptions to this are matters that are even higher in the Swiss constitution, basically only the European Convention on Human Rights (ECHR). An example of a retroactive change in the law in Switzerland was the inheritance tax initiative (rejected in 2015) , which was supposed to adjust the taxation of heirs retrospectively from 2012. Motions to the government to remove this legal uncertainty were rejected by parliament on the grounds of popular will.

Individual evidence

  1. BVerfGE 31, 275 (292), BVerfGE 72, 200 (242).
  2. BVerfG, decision of July 7, 2010, Az. 2 BvL 14/02, 2/04, 13/05 full text .
  3. Search curia vista,