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El. knyga: Prohibition of Abuse of Law: A New General Principle of EU Law? [Hart e-books]

Edited by (Max Planck Institute for European Legal History), Edited by (University of Leeds, UK)
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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 boon 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.

The European Court of Justice has been alluding to 'abuse and abusive practices' for more than 30 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, analyzing 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.
Preface v
Foreword vii
Miguel Poiares Maduro
Contributors xii
I Introduction Introducing the Principle of Prohibition of Abuse of Law
xv
Rita de la Feria
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
3(4)
Paul Farmer
2 What is a General Principle of EU Law?
7(18)
Anthony Arnull
3 What is a General Principle of EU Law? A Response
25(8)
Karsten Engsig Sørensen
4 The Abuse of Rights in the Civil Law Tradition
33(16)
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
49(14)
Stephen Weatherill
6 Free Movement of Broadcasting Services and Abuse of Law
63(30)
Dimitrios Doukas
7 The Notion of Abuse and the Freedom to Provide Services: A Labour Lawyer's Perspective
93(14)
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'
107(20)
Wolf-Georg Ringe
9 Sparking Regulatory Competition in European Company Law: A Response
127(10)
John Vella
10 Abuse of Law in the Context of European Insolvency Law
137(20)
Horst Eidenmuller
11 Abuse of European Insolvency Law? A Discussion
157(12)
John Armour
12 Abuse of Rights in EU Law: Some Reflections with Particular Reference to Financial Law
169(24)
Takis Tridimas
13 Comments on Abuse of Rights in EU Law
193(10)
Pierre Schammo
V The Test: Free Movement of Goods and Common Agricultural Policy
14 The Emsland-Starke Abuse of Law Test in the Law of Agriculture and Free Movement of Goods
203(16)
Panos Koutrakos
15 The Notion of and a General Test for Abuse of Rights: Some Normative Reflections
219(16)
Jukka Snell
VI The Unknown: Private Law and International Civil Procedure
16 Abuse of Law in EU Private Law: A (Re-) Construction from Fragments
235(18)
Axel Metzger
17 Comments on `Abuse of Law' in European Private Law
253(8)
Simon Whittaker
18 The Rejection of Abuse in International Civil Procedure
261(18)
Adrian Briggs
19 The Discreet Influence of Abuse of Law in International Civil Procedure
279(12)
Gilles Cuniberti
VII The Exceptions? Free Movement of Workers and Citizenship
20 `Prohibition of Abuse of Law': A New General Principle of EU Law
291(4)
Jonathan Faull
21 `Abuse of Law' in the Context of the Free Movement of Workers
295(20)
Katja S Ziegler
22 Comments on Abuse of Law and the Free Movement of Workers
315(6)
Eleanor Spaventa
23 Citizenship of the Union: Above Abuse?
321(34)
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
355(10)
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
365(16)
Judith Freedman
26 Abuse of Law in the Context of Indirect Taxation: From (Before) Emsland-Starke 1 to Halifax (and Beyond)
381(14)
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
395(12)
Dennis Weber
28 Cadbury Schweppes and Abuse from an EU Tax Law Perspective
407(20)
Frans Vanistendael
29 Cadbury Schweppes and Abuse: Comments
427(8)
Richard Lyal
30 Cadbury Schweppes' Line of Case Law from the Member States' Perspective
435(24)
Michael Lang
31 Cadbury Schweppes: Breach, Abuse Justification and Why They Are Different
459(10)
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
469(16)
Ana Paula Dourado
33 Is There a Role for a European Principle Prohibiting Abuse of Law in the Field of Personal Taxation? A Comment
485(8)
Edwin Simpson
34 State Aid, Taxation and Abuse of Law
493(16)
Timothy Lyons
35 Comments on State Aid, Taxation and Abuse of Law
509(12)
Conor Quigley
IX Conclusion
35 The Prohibition of Abuse of Law: An Emerging General Principle of EU Law
521(52)
Stefan Vogenauer
Table of Cases 573(42)
Table of Legislation 615(14)
Index 629
Rita de la Feria is Professor of Tax Law at the Durham Law School, University of Durham, UK, and Programme Director at the Oxford University Centre for Business Taxation, UK. Stefan Vogenauer is Professor of Comparative Law at the University of Oxford, a Fellow of Brasenose College and Director of the Oxford Institute of European and Comparative Law.
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