Chapter 3: ABUSE OF LAW AS A GENERAL PRINCIPLE OF EUROPEAN UNION (TAX) LAW
The Court of Justice of the European Union has developed a long-standing case law on the prohibition of abuse. The present contribution first briefly recapitulates the case law of the Court of Justice, both for VAT and for direct taxes. It then moves on to the implications of that case law. It will argue that the prohibition of abuse will most likely have a very limited field of application. Moreover, it will stress the importance of teleological reasoning for the determination of abuse. It will also point out that the risk of overshooting needs to be addressed, so that the finding of abuse does not lead to higher taxes than in a no-abuse situation. Finally, the contribution will discuss whether there is a single right answer to the question when it comes to ascertaining abuse or whether Member States can be given some leeway.
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