The materiality of the submission for the decision has hence not been adequately set forth. The First Senate of the Federal Constitutional Court has ruled that the submission is inadmissible because the submitting Finance Court has not adequately clarified whether the legal provision which it judges to be unconstitutional is based on a requirement of European Community law that is binding on the German legislature, or whether latitude has been granted to the latter. Since the breach of the law was founded on national law, a submission to the European Court of Justice could not be considered.

According to the decision, an obligation existed with effect for the future only, but not to refuse to grant State aid for investments which had already been embarked on in the shape of binding investment decisions. It further argued that the retroactive effect linked with the new provision was constitutionally not justified and also not necessary according to the Commission's decision. The Finance Court argued that an investor enjoyed from the time of his or her binding investment decision protection of legitimate expectations against statutes retroactively restricting or rescinding the fiscal promotion of the investment this confidence eligible for protection was said not to have ceased to exist until the Federal Government's letter had been published. 4 InvZulG is compatible with the rule-of-law ban on retroactivity in that it also covers investments with regard to which the investor had taken a binding investment decision prior to 28 September 1998 - the date on which the letter was published with which the Federal Government announced that it would be amending the Investment Allowance Act. The Finance Court submitted the question for review to the Federal Constitutional Court as to whether the provision contained in § 2 sentence 2 no. With its action lodged against this, the plaintiff essentially claims a violation of the constitutional ban on retroactivity, arguing that the investment decisions in question had already been taken prior to 3 September 1998, and hence indeed prior to the proclamation of the new provision. On the basis of the new provision, the tax office refused to grant to the plaintiff an investment allowance for investments of DM 3.9 million on grounds that these had not been carried out until after 2 September 1998. The plaintiff of the original proceedings runs a mill in the new federal Länder. Accordingly, certain commodities were not eligible in the processing and marketing of agricultural products which had been acquired or produced after 2 September 1998. The requirement was transposed by the new provision, which came into force on 24 December 1998, contained in § 2 sentence 2 no. Germany was instructed in the decision, which was served on 2 July 1998, to accordingly amend, or where necessary abolish, existing aid schemes within two months. According to the decision, specific investments in farms, including mills, are excluded from receiving subsidies. The European Commission decided in May 1998 that national State aid schemes which ran counter to the specific Community guidelines which the Commission had previously established and the appropriate measures in the processing and marketing of agricultural products which it had simultaneously established were incompatible with the common market. The Investment Allowance Act ( Investitionszulagengesetz - InvZulG) regulates the payment of State aid (investment allowances) for specific business investments in Berlin and the new federal Länder. On the admissibility of a concrete review of statutes regarding an Act transposing European Union law

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