ng of 28 different value-added tax (VAT) systems, which withstands various attempts to obtain benefits for which it was not designed.
The Court has often used the aforementioned principle of abuse of EU law as a tool with which to combat fraud in the form of denying rights relied on from the VAT Directive, where such rights are derived in cases of established tax fraud or where there has been a failure to comply with the conditions of good faith.
Of particular interest to this paper is the extent to which a general principle may emerge, and whether the principle of prohibition of abuse of EU law may be regarded as a constitutional general principle of EU law. This will be done by examining the relevant case law of the Court and the recent trends, which, in the opinion of the author, confirm the notion that there is one general principle of abuse of EU law.
Part I: The Notion of Abuse in EU law
Early linguistic discrepancies notwithstanding, the author contends that there is indeed only one concept of abuse. This will be highlighted by the willingness of the Court to shore up the early, implied references to “abuse”, and finally settle on terming it as such.
1 Prohibition of abuse as a judicial rule
The principle of prohibition of abuse in EU case law is a recognised concept, which according to many enjoys the legal status of a general principle.
At the beginning, it was applied in a fundamental freedom context and then in almost every field of law not only reserved to Union competence, but also to the extensive interpretation of treaty and directive dispositions. Overtime the Court has denationalised abuse. It thus applies it in light of Union law, not national law.
2. The linguistic problem
A steady line of case law by the Court underlines a well-established prohibition of the use of Union law for abusive or fraudulent ends. It is no simple task to define the scope of that principle, as Advocate General La Pergola opined in Centros . Nor has the phraseology used by the Court been overly-coherent either; it has not always referred to the notion as “abuse”. Indeed, it has at different times used phrases such as “avoidance”, “evasion”, “circumvention”, “fraud” interchangeably with “abuse”.
Due to the mis-translation of EU documents, some minor linguistic discrepancies remain when the Court has referred to the concept of abuse. Nonetheless, after the judgment in Emsland-Stärke, “abuse” has been the only term used by the Court in referring to such situations. It can therefore be interpreted as the common denominator of the terms mentioned earlier, meaning they are me
