Reverberation of Legal Principles: Further Thoughts on the Development of an EU Principle of Prohibition of Abuse of Law
On February 2006 the Court of Justice delivered its eagerly awaited 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 - would it apply to other areas of tax law, in particular to corporate taxation; the criteria for application of the principle – how would the abuse test set out by the Court in Halifax be applied; and, the nature and implications of this 'principle' - interpretative, general, or neither. This brief paper considers the ongoing debate over the development of an EU principle of prohibition of abuse of law, offering some further thoughts on the topic. In particular, the paper reflects first 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 progresses to propose the notion of reverberation as a new conceptual framework for the analysis of the development of general principles of EU law - in this case based upon the ongoing example of prohibition of abuse of law. The paper concludes with some thoughts on the future of the principle of prohibition of abuse of law and its potential consequences.
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