Prohibition of Abuse of (Community) Law – The Creation of a New General Principle of EC Law Through Tax

The Court of Justice has been alluding to abuse and abusive practices in its rulings for more than thirty years.For a long time however the significance of these references was unclear. Not many commentators delved into this issue, and the few that did doubted whether the references by the Court to abuse amounted to the development of a general Community principle of abuse of law. This state of affairs has changed radically within the last few years, largely due to jurisprudential developments within the field of tax. This paper analyses the evolution of the Court’s case law on abuse, from the first cases on free movement of services, to the latest rulings on taxation. It then considers whether the case law developed by the Court, on what has been designated as “prohibition of abuse of law”, does indeed amount to a new general principle of Community law.

see also:  ‘Evolução do Conceito de Abuso do Direito no Âmbito do Direito Fiscal Comunitário’ Revista de Finanças Públicas e Direito Fiscal, 1/2, 197-226, 2008

2009

Does a principle of prohibition of abuse of law apply to tax?

The Court of Justice of the European Union has been alluding to ‘abuse and abusive practices’ for more than thirty years, but for a long time the significance of these references has been unclear. Few lawyers examined the case law, and those who did doubted whether it had led to the development of a legal principle. Within the last few years there has been a radical change of attitude, largely due to the development by the Court of an abuse test and its application within the field of taxation in cases such as Halifax and Cadbury Schweppes. This project focuses on the development of the  Court’s approach to abuse of law across the whole spectrum of European Union law, analysing the case-law from the 1970s to the present day and exploring the consequences of the introduction of the newly designated ‘principle of prohibition of abuse of law’ for the development of the tax laws of the Member States.

Rita de la Feria 

2008

Is there a new general principle of abuse of community law?

The European Court of Justice has been alluding to abuse and abusive practices in its rulings for more than thirty years, although for a long time the significance of these references was unclear. This state of affairs has now changed radically, largely due to jurisprudential developments within the field of tax. The aim of this project is to analyse the evolution of the Court’s case law on abuse, from its origins to the latest rulings on taxation, in order to determine whether the ECJ references to abuse of law amount to a new general principle of Community law and, if so, what are the legal implications. This work was the subject of a major Centre conference held in October

2008, with the publication of a book based on contributions from leading experts in European Community law expected in 2009.