Principle Of Abuse Research Articles

Saving the ATAD CFC Regime Through Abuse of Law or the Rule of Reason

This article revisits the debate about the extent to which the controlled foreign company (CFC) rules in the Anti-Tax Avoidande Directive (ATAD) are compatible with the EU fundamental freedoms. It considers why the ATAD CFC rules may restrict those freedoms and whether that conflict may be resolved by recourse to the general principle of abuse of law, which may prevent a taxpayer from relying on a fundamental freedom and thus prevent the restriction from arising, or to the rule of reason, which may serve to justify the restriction. The paper considers whether these may be treated as separate doctrines and some implications of doing so. The paper reaffirms that the ATAD CFC rules may be considered to be incompatible with the fundamental freedoms as interpreted in Cadbury Schweppes. Then, by reference to recent CJEU decisions, the paper interprets new standards of artificiality and reassesses the aforementioned incompatibility. Firstly, the now expanded anti-abuse principle may, in many instances, prevent the restriction from arising. Secondly, the now more generous rule of reason holds the restriction largely justified in relation to third states, and this should be extended also to intra-EU situations. Ultimately, the ATAD CFC regime is likely to be considered mostly compatible with the fundamental freedoms. Direct tax, EU law, ATAD, CFC rules, Cadbury Schweppes, fundamental freedoms, rule of reason, abuse of law, overriding reason in the public interest, avoidance.

Abuse of Law Doctrine in Tax Law

This paper was written in order of the reforming of the tax system’s framework. Analysing phenomena such as tax evasion, tax avoidance, the use of legal loopholes to reduce tax liability in Italy was very challenged. The purpose of this paper is to verify, in the light of most interventions the latest case law of the European Court of Justice, if it exists in the field of direct and indirect taxes, a general principle of abuse of law. The existence of this provision will be analyzed in the context of the principle of legal certainty. We should analyse the concept of abuse of law as a normative problem and historical-evolutionary phenomenon. In this paper a special place is taken by the genesis of the concept of abuse of Community law and the general principle of prohibition of abuse of the right in function of a general anti-avoidance norm, its meaning, effects and role as a corrector of the system. We have addressed the role of jurisprudence of the European Court of Justice, dividing it into two parts: Abuse in field of harmonized taxation- Halifax Doctrine and Abuse in the field of disharmonized taxation -The leading case-Cadbury Schweppes.

Taking Stock: Abuse of Process within the International Court of Justice

Abstract The doctrine of abuse of process, as a subsidiary concept of the principle of abuse of rights, is well established as a general principle of law and regularly invoked by member states in argument at the International Court of Justice (ICJ). Nonetheless, the ICJ has yet to uphold an argument founded upon the abuse of process. After conducting a general survey of the development of the doctrine of abuse of process around the globe, this article argues that the ICJ should seize upon the current global trend in which international courts and tribunals have sought to utilise the abuse of process doctrine as a feature of their inherent case management powers, and more readily make use of the doctrine to ensure that the integrity of proceedings is preserved before the ICJ.

The Reverberation Effect of the EU Notion of Abuse of Law on the Italian Tax Legal System: Towards an Enhanced Horizontal Interaction Among National General Anti-Abuse Rules?

In the preface to the seminal book ‘Prohibition of Abuse of Law – A New General Principle of EU Law?’1prof. de la Feria relies on the metaphor of ‘reverberation’ in order to account for the creation and development of an EU principle of abuse of law and its impact on the different Member States’ national legal systems. Building on this idea, this article shows how the reverberation metaphor can effectively be used to explain the impact of the EU notion of abuse of law on the Italian tax legal system and the horizontal interaction of this latter system with other Member States’ legislations. On this reading, the first section illustrates the main features of the reverberation process; the second examines the impact of this process on the Italian tax legal system with particular reference to the process of codification of a national General Anti-Abuse Rule (GAAR); finally, the third section attempts a comparison between the Italian and the English anti-abuse provisions in order to work out an example of possible horizontal interaction between the two national systems.

Aggressive Tax Planning in EU Law and in the Light of BEPS: The EC Recommendation on Aggressive Tax Planning and BEPS Actions 2 and 6

The purpose of this article is to critically assess the meaning of aggressive tax planning and its scope in the current international move to fight against base erosion and profit shifting (BEPS). In the context of the BEPS initiative, aggressive tax planning has been broadly used in several Organization for Economic Cooperation and Development (OECD) and EU soft law instruments. However, it is not clear what new features aggressive tax planning does bring to the settled legal concepts of tax avoidance and tax evasion, and whether it is a legal or merely a tax policy concept. In order to find the meaning of aggressive tax planning in the BEPS context, some of the recommendations put forward in BEPS actions 2 and 6 and in the EC Recommendation on Aggressive Tax planning are analysed and compared in this article. The article also aims to illustrate some of the reciprocal influences and interaction between EU law and OECD recommendations and tax treaties. For example, the EC Recommendation on ATP, proposing the introduction of a General Anti-Abuse Rules (GAAR) in the Member States' legislation, and the BEPS Action 6 proposal to introduce a GAAR (a Principal Purposes Test Rule or PPT Rule) in tax treaties illustrate the same spirit and a holistic approach. Moreover, a PPT Rule in tax treaties concluded by EU Member States will have to be compatible with the EU fundamental freedoms and the principle of abuse in EU law. The GAAR amending the EU Parent-Subsidiary Directive and approved by the Economic and Financial Affairs Council (ECOFIN) on 9 December 2014 illustrates how EU Member States could introduce a GAAR in their treaties compatible with EU law. These reciprocal influences among domestic, international and EU law and practices lead to an acquis communautaire and to international standards which may be justified as products of global identity and related to a global sense of fairness and unfairness and ultimately of a global tax morale calling for global solutions and global tax standards.

A Critical Review of the Definition of Tax Avoidance in the Case Law of the European Court of Justice

Tax avoidance, as defined by the European Court of Justice (ECJ), reflects the principle of abuse of rights, and thereby the Court's teleological interpretation of the objectives and scope of Community law. The definition is consequently well in line with more theoretical elements of tax avoidance related to the flexibility of judicial interpretation. However, the Court's apparent distinction between tax avoidance and abuse of rights leads to a confusing approach. Furthermore, when the Court's definition of tax avoidance is construed properly through theoretical considerations, it is evident that the Court's interpretation of the objective and scope of the Treaty freedoms is insufficient and in need of open and comprehensive justifications.

Measures Against Patent Troll Who Inhibits Development in Industries of Software -A Discussion on Application of Compulsory Licensing System-

Assuming that patent trolls would come up in the field of software and the like in Japan in the future, we have proposed countermeasures to apply compulsory license against their exercise of patent right. Specifically, in order to avoid injunctive relief of the patent trolls, we have proposed that the enforcement regulation for Japanese Patent Act Article 83 is overhauled in attempt to broadly construe the provision of “the grant of non-exclusive license where invention is not worked” as “the grant of non-exclusive license where invention will not be worked in the future”. Also, we have compared such countermeasures with other countermeasures to apply the principle of abuse of rights to the injunctive relief.

Creative or Artificial, That’s the Question!

This article will show how the interface between trade and customs law can play a pivotal role for the everyday life of economic operators. This is done starting by an individual case and extending the research to the protection of Union financial interests and the general principle of abuse of rights in Community law.

Abuse of Right in EU Law: Some Reflections with Particular Reference to Financial Law

The purpose of this paper is to explore abus de droit as a general principle of European Union law with particular reference to its application in the field of financial law. Whilst the principle of abuse of right is invoked in diverse areas of law and in many legal systems to serve a variety of purposes, in EU law it has been a latecomer and developed mainly in the fields of tax law and free movement. In the case law of the Court of Justice, the concept of abuse is used in two situations. First, in cases where a person seeks to circumvent the requirements of national law by relying on a Community freedom, engaging in effect in forum shopping, and, secondly, cases where a person seeks to derive an improper advantage from Community legislation. In general, the impact of the doctrine in Community law has remained limited. In the context of free movement, the ECJ has understood the doctrine narrowly in keeping with the expansive interpretation of the Treaty freedoms. In many fields, the doctrine has been largely concretised through the articulation of detailed rules in various Community directives. A prime example of such concretization is offered in the field of financial law. Since the adoption of Directive 2003/6, the term “market abuse” has become a term of art referring specifically to insider trading and market manipulation. The definition of manipulation comes closer to the general principle of abuse since most of its forms involve artificial transactions which formally remain within the bounds of the law. As for the free movement of investment firms, the detailed provisions of MiFID make less necessary reliance on the doctrine of abuse as a general principle of Community law, although it continues to have a residual role both where statutory arrangements do not provide a solution and as an aid to their interpretation.

La legge italiana sulla concorrenza nell’ottica svizzera

La legge italiana sulla concorrenza nell’ottica svizzera

Kofin Al Midat S'dom: Jewish Law's Concept of Abuse of Rights

The Jewish legal system's concept ofKofin al midat S'dom(kofin, in this essay) is a rule of equity whose scope of application is almost without parallel in other legal systems. Strict translation of this phrase, which is “one is compelled not to act in the manner of Sodom” is not very helpful. The rule is interpreted to mean that if A has a legal right and the infringement of such right by B will cause no loss to A but will remove some harm from, or bring a benefit to B, then the infringement of A's right will be allowed. Such a concept at once brings to mind the modern view concerning abuse of rights. There is, in fact, much in common between the two principles but they are certainly not the same. According to one legal system a certain given fact situation can have the legal principle of abuse of rights applied to it, while in another legal system a different rule of law would be resorted to. To illustrate: In certain jurisdictions the right to privacy is based on the concept of abuse of rights, while in others, as is the case in Jewish law, such a right is independent of the equivalent abuse of rights—kofin. So with other rights such as the right to light or unfair trade competition. An attempt will be made in this essay to show the range and the limits of thekofinprinciple. We will discuss those problems which are dealt with within the framework ofkofineven if their non-Jewish parallel is one which is far from the concept of abuse of rights. Conversely, we will not examine those questions which, in other legal systems, fall within the ambit of abuse of rights but are not looked upon, in Jewish law, as problems to which the rule ofkofinis to be applied, since they have been solved by other legal rules.