Sample Solution

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 merely different expressions of the same concept. How this “abuse” has been conducted can be divided into three groups, namely circumvention (or u-turn transactions), fraudulent behaviour, and misuse. The difference in form bears no practical difference in terms of applying the abuse of rights principle to a given case.

2.2 Circumvention
As is commonly known, Member States have the autonomy to introduce domestic legislation in areas not yet harmonised at Union level. Some provisions of secondary law explicitly allow such legislation, whilst it is sometimes implied that Member States may legislate outside of harmonised areas. Consequently, persons (or goods) originating from a Member State with strict rules, may trigger the application of EU law simply by crossing a border and then returning to their home State. The final destination of the transaction in such a case is the home State. This means that crossing the border renders the higher standard