Book Review: Prohibition of Abuse of Law. A New General Principle of EU Law? Ed. By Rita De La Feria and Stefan Vogenauer. – Oxford & Portland, Ore.: Hart 2011. XXV, 636 S. (Studies of the Oxford Institute of European and Comparative Law. 13.)

Abstract

This book probes the question of whether the prohibition of “abuse of law” has developed into a general principle of European Union (EU) law. The answer to this question requires an analysis of the cases decided by the European Court of Justice (ECJ) which refer to “abuse of law” or “abuse of rights” in a variety of legal fields, as well as an understanding of what constitutes a European Union general principle of law, and what difference it makes if – assuming that there is a red thread which connects the separate instances where this notion was considered – this doctrine is considered a general principle of EU law or just a principle of interpretation.

The book makes a compelling argument that the prohibition of abuse of law has developed into a general principle of EU law, even if the precise scope, content and limits of the prohibition still need to be fleshed out in future case law and legal literature. As underlined by Vogenauer (564 ff.), it is general rather than specific, it is a principle rather than a rule, and it is a legal proposition, not merely an economic, political, social or moral policy. With other general principles it shares the linguistic indeterminacy or “open-endedness” (568 f.) needed to cover a multitude of cases, including those which are unforeseen at the time when the general principle is first articulated.

In EU law, the principle was first developed by the ECJ and is, consequently, “judge-made” law. However, the Court did not invent it out of thin air. As underlined by the authors, the EU Treaties and their objectives and, in particular, the more detailed rules of secondary EU law, contain specific manifestations of this principle.

All legal systems that have black-letter legal rules, as their primary source of law, have such a principle, be it written (e. g., Art. 2(2) Swiss Civil Code) or unwritten, applicable in all legal areas but criminal law. EU law, based upon primary and secondary legislation, requires such a principle, too. The reason for that is clear: the principle is needed to prevent advantages accruing to persons who formally meet all the requirements by complying strictly with the letter of the legal rule, yet by their acts frustrate its purpose in an abusive manner, by arranging their affairs artificially just in order to benefit from the application of the rule. The principle prohibiting abuse of law ensures that, if these conditions are met, the rule is not applied to the facts and the person invoking it cannot derive rights from it.

The book is of great interest to scholars of EU law, private international law and taxation, as well as national legislatures and practitioners in all of these areas. The red thread that connects the various instances of prohibition of abuse, making it possible to gain an overview of the emerging principle, could only be spun by bringing together researchers from different areas, complementing each other’s presentations, and thus allowing for true, in-depth comparative research, for which the editors deserve to be commended.

Keywords: abuse of law, EU law, free movement, freedom of establishment, tax law, private international law

JEL Classification: K10, K23, K33, K34, K40