Description
Book SynopsisThe 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.
Trade Review… 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 *
Table of ContentsI 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
