Abuse of rights in EU VAT - The Court’s tool to introduce a new general principle of EU Law

Abstract: The principle of prohibition of abuse of EU law has developed throughout a variety of areas of EU law, but has for the last few years most specifically evolved into an overriding principle through the field of EU VAT. The questions that have arisen along the lines of the Court’s interpretation mainly assess the relation with legal certainty and the division of powers. When looking at the cases of Maks Pen and Italmoda without prior engagement in the abuse of rights doctrine, one is inclined to question its compliance with these core principles underpinning the EU legal order. However, by the Court’s gradual extension of the scope of the principle of prohibition of abuse of EU law, through Halifax and Kofoed, the current scope of application has become defendable to a certain extent. The Court appears to have struck the balance right between legal certainty and the needs of the Internal Market in general, although the case in Italmoda must be considered to be a flaw within that process. When looking at the principle from a notional standpoint, one cannot conclude differently than that it has ascended to a level of constitutional value. The principle of non-abuse possesses the elements academically designated to general principles of EU law. However, the full and direct application against individuals appears to still be a bridge too far at this time, due to a remaining lack of unified recognition in all layers of the EU legal order.