Poland’s Implementation of EU GAAR Compromises Constitutional and EU Principles

Abstract

One of the most potent legal instruments for preventing tax avoidance is Article 6 (general anti-avoidance rule, EU GAAR) of the Anti-Tax Avoidance Directive (ATAD). This article analyses Poland’s very restrictive implementation of EU GAAR to demonstrate that the implementation, although permissible under Article 3 ATAD, has led to the protection of the Polish tax base at the cost of constitutional and EU principles. The main purpose of this article is to reveal the incompatibility of the Polish GAAR with the constitutional and EU principles of legal certainty and proportionality and to draw consequences from it. Furthermore, the article aims to show that the EU should have taken a different approach to the EU standard for abuse of tax law. GAAR, ATAD, tax avoidance, Poland, constitution, EU primary law, CJEU, proportionality, certainty, repressive.