Prohibition of Abuse of Law

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.

I Introduction
Introducing the Principle of Prohibition of Abuse of Law
Rita de la Feria xv
II The Framework: General Principles of EU Law and the Prohibition of Abuse
1 Prohibition of Abuse of (European) Law: The Creation of a New General Principle of EC Law through Tax: A Response
Paul Farmer
2 What is a General Principle of EU Law?
Anthony Arnull
3 What is a General Principle of EU Law? A Response
Karsten Engsig Sørensen
4 The Abuse of Rights in the Civil Law Tradition
James Gordley
III The Origins: Free Movement of Services
5 Fitting 'Abuse of Rights' into EU Law Governing the Free Movement of Goods and Services
Stephen Weatherill
6 Free Movement of Broadcasting Services and Abuse of Law
Dimitrios Doukas
7 The Notion of Abuse and the Freedom to Provide Services: A Labour Lawyer's Perspective
Catherine Barnard
IV The Development: Freedom of Establishment, Company Law and Competition Law
8 Sparking Regulatory Competition in European Company Law: The Impact of the Centros Line of Case Law and its Concept of 'Abuse of Law'
Wolf-Georg Ringe
9 Sparking Regulatory Competition in European Company Law: A Response
John Vella
10 Abuse of Law in the Context of European Insolvency Law
Horst Eidenmüller
11 Abuse of European Insolvency Law? A Discussion
John Armour
12 Abuse of Rights in EU Law: Some Reflections with Particular Reference to Financial Law
Takis Tridimas
13 Comments on Abuse of Rights in EU Law
Pierre Schammo
V The Test: Free Movement of Goods and Common Agricultural Policy
14 The Emsland-Stärke Abuse of Law Test in the Law of Agriculture and Free Movement of Goods
Panos Koutrakos
15 The Notion of and a General Test for Abuse of Rights: Some Normative Reflections
Jukka Snell
VI The Unknown: Private Law and International Civil Procedure
16 Abuse of Law in EU Private Law: A (Re-)Construction from Fragments
Axel Metzger
17 Comments on 'Abuse of Law' in European Private Law
Simon Whittaker
18 The Rejection of Abuse in International Civil Procedure
Adrian Briggs
19 The Discreet Influence of Abuse of Law in International Civil Procedure
Gilles Cuniberti
VII The Exceptions? Free Movement of Workers and Citizenship
20 'Prohibition of Abuse of Law': A New General Principle of EU Law
Jonathan Faull
21 'Abuse of Law' in the Context of the Free Movement of Workers
Katja S Ziegler
22 Comments on Abuse of Law and the Free Movement of Workers
Eleanor Spaventa
23 Citizenship of the Union: Above Abuse?
Cathryn Costello
24 Some Comments on the Idea of a General Principle of Union Law Prohibiting Abuses of Law in the Field of Free Movement for Union Citizens
Michael Dougan
VIII The Confirmation? Tax Law
25 The Anatomy of Tax Avoidance Counteraction: Abuse of Law in a Tax Context at Member State and European Union Level
Judith Freedman
26 Abuse of Law in the Context of Indirect Taxation: From (Before) Emsland-Stärke 1 to Halifax (and Beyond)
Pasquale Pistone
27 Abuse of Law in the Context of Indirect Taxation: Why We Need the Subjective Intention Test, When is Combating Abuse an Obligation and Other Comments
Dennis Weber
28 Cadbury Schweppes and Abuse from an EU Tax Law Perspective
Frans Vanistendael
29 Cadbury Schweppes and Abuse: Comments
Richard Lyal
30 Cadbury Schweppes' Line of Case Law from the Member States' Perspective
Michael Lang
31 Cadbury Schweppes: Breach, Abuse Justification and Why They Are Different
Julian Ghosh
32 A Single Principle of Abuse in European Union Law: A Methodological Approach to Rejecting a Different Concept of Abuse in Personal Taxation
Ana Paula Dourado
33 Is There a Role for a European Principle Prohibiting Abuse of Law in the Field of Personal Taxation? A Comment
Edwin Simpson
34 State Aid, Taxation and Abuse of Law
Timothy Lyons
35 Comments on State Aid, Taxation and Abuse of Law
Conor Quigley
IX Conclusion
35 The Prohibition of Abuse of Law: An Emerging General Principle of EU Law
Stefan Vogenauer

“… this book provides an excellent analysis of the status of the principle of prohibition of abuse of law under EU law. It explores the consequences of the possible introduction of such a general principle on the development of EU law and Member State laws. It brings into the discussion ideas and arguments that in some cases were subsequently validated by the CJEU. The interdisciplinary nature of the book together with the wealth of material it includes make it truly unique-an invaluable source of reference for future discussions.” –  Christiana HJI Panayi, British Tax Review No 5 2012

“The book has two particular merits. First, it is the result of a truly interdisciplinary debate bringing together EU lawyers, tax lawyers and comparative lawyers with different interests, perspectives and areas of expertise...A second strength is that the various contributions do not only examine the most recent milestone cases of the ECJ with regard to abuse of rights, but also carry out a thorough retrospective analysis from the 1970s until today...As a result of these two main merits, the book follows a clear and coherent structure.
...the book under review can without doubt be qualified as the first comprehensive standard work on the topic of abuse of rights in EU law. The book is truly innovating, since it offers for the first time a coherent and integrated interdisciplinary study of the concept of abuse of rights at the EU level. Moreover, the views and suggestions offered in the book will undeniably serve as an important source of inspiration for future discussions on abuse of rights.
” –  Annekatrien Lenaerts, Common Market Law Review Volume 49, 2012

“The book is of great interest to scholars of EU law, private international law and taxation, as well as national legislatures and practitioners in all of these areas. The red thread that connects the various instances of prohibition of abuse, making it possible to gain an overview of the emerging principle, could only be spun by bringing together researchers from different areas, complementing each other's presentations, and thus allowing for true, in-depth comparative research, for which the editors deserve to be commended.” –  Talia Einhorn, Rabels Zeitschrift fuer auslaendisches und internationales Privatrecht, Volume 78