Prohibition of abuse of law: a new general principle of EU law?
Oxford: Hart Publishing
The Court of Justice 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 this book, academics and practitioners from all over Europe discuss 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 laws of the EU and those of the Member States.
WP 10/21 Rita de la Feria, Reverberation of legal principles: further thoughts on the development of an EU principle of prohibition of abuse of law
Research Highlight 2011
The development of an EU principle of prohibition of abuse of law
In February 2006 the Court of Justice of the European Union (CJEU) delivered its ruling in Halifax, a case concerning the interpretation of EU secondary legislation on VAT. The judgment represented the culmination of a long process, with the Court referring for the first time to the ‘principle of prohibiting abusive practices’. Yet, Halifax also represented the beginning of a new process: the discussion over the significance of the newly designated ‘principle of prohibition of abuse of law’. Fundamental questions immediately arose and were the subject of intensive debate such as: the scope of application of the principle; how would the abuse test be applied; and, the nature and implications of this ‘principle’ - interpretative, general, or neither. This research reviews and considers the ongoing debate over the development of an EU principle of prohibition of abuse of law. It reflects on the role of the principle within the field of free movement of persons, in the context of the literature on convergences and divergences between the fundamental freedoms. It then proposes the notion of reverberation as a new conceptual framework for the analysis of the development of general principles of EU law.