The General Anti-Abuse Rule of the Anti-Tax Avoidance Directive: An Analysis Against the Wider Perspective of the European Court of Justice’s Case Law on Abuse of EU Law

Abstract

A general anti-tax avoidance rule (GAAR) has been adopted as part of the Anti-Tax Avoidance Directive of 12 July 2016 (ATAD). This article first sets out the concept of abuse of (tax) law and its role within the European Union legal order, based on the jurisprudence of the European Court of Justice (section 2). Subsequently, it establishes a recent trend towards mandatory GAAR codification. The traditional approach whereby secondary EU laws merely authorizes national GAARs to combat abusive practices is replaced by an obligation for Member States to eliminate abusive tax practices (section 3). The mandatory GAAR that was included in the amended Parent-Subsidiary Directive of 2015 seems to have set a precedent which the ATAD has extrapolated to the corporate income taxation of the Member States. Finally, section 4 provides a critical analysis of the scope, requirements and legal consequences of the ATAD GAAR, whereby questions and concerns are raised showing that, despite its remarkably swift adoption, interpretation and implementation of the new provision are far from self-evident.