The C.J.E.U. Case Law Relevant to the General Anti-Avoidance Rule (G.A.A.R.) Under the Anti-Tax Avoidance Directive (A.T.A.D.)

Abstract

This study concentrates on the Court of Justice of the European Union (CJEU) case law in order to reconstruct from it an interpretative guidance for the proper understanding and thus application of general anti-abuse rule included in Article 6 ATAD (the ATAD’s GAAR). Although Article 6 aims to harmonises general anti-abuse rule in the domain of tax law among all MSs, its wide scope and its phraseology raises a plethora of issues, in particular in respect of its proper – EU compatible – understating and thus application. The analysis of the relevant CJEU case law, as undertaken in this paper, will set a scene for the question of compatibility of the ATAD’s GAAR with the concept of abuse developed by the CJEU in cases regarding abusive practices of taxpayers.  This piece aims to contribute in determining the reasonable understanding of the core elements of the ATAD’s GAAR in accordance with the EU primary law, as interpreted by the CJEU. This may provide the readers with a useful interpretative guideline to the ATAD’s GAAR, which could be of an assistance not only for tax authorities, but by all stakeholders, including taxpayers, courts, and MSs’ legislative bodies.