The Development of the Doctrine of Abuse of Law and the Danish Cases: Time to Shift the Focus from Non-Genuine Arrangements to Single (Abusive) Transactions?

Abstract

The article first retraces the history of the standards adopted under the EU abuse of law doctrine to identify abusive conduct executed by the taxpayer. Then, the authors progress from the differences between the rules contained in the Anti-Tax Avoidance Directive (ATAD) and the findings of the CJEU in the Danish Cases, which constitute the last steps of that history, and elaborate on some proposals in order to update the former in light of the judges' findings. They propose shifting the focus from non-genuine arrangements to single (potentially abusive) transactions, also taking into consideration the criteria relied upon in transfer pricing and controlled foreign company (CFC) legislation to ascertain whether economic substance is present.