scholarly journals Abuse of Law Doctrine in Tax Law

2020 ◽  
Vol 7 (3) ◽  
pp. 156
Author(s):  
Viola Tanto
Keyword(s):  
Tax Evasion ◽  
General Principle ◽  
Tax Avoidance ◽  
Case Law ◽  
European Court Of Justice ◽  
Court Of Justice ◽  
European Court ◽  
The Right ◽  
Abuse Of Law

This paper was written in order of the reforming of the tax system’s framework. Analysing phenomena such as tax evasion, tax avoidance, the use of legal loopholes to reduce tax liability in Italy was very challenged. The purpose of this paper is to verify, in the light of most interventions the latest case law of the European Court of Justice, if it exists in the field of direct and indirect taxes, a general principle of abuse of law. The existence of this provision will be analyzed in the context of the principle of legal certainty. We should analyse the concept of abuse of law as a normative problem and historical-evolutionary phenomenon. In this paper a special place is taken by the genesis of the concept of abuse of Community law and the general principle of prohibition of abuse of the right in function of a general anti-avoidance norm, its meaning, effects and role as a corrector of the system. We have addressed the role of jurisprudence of the European Court of Justice, dividing it into two parts: Abuse in field of harmonized taxation- Halifax Doctrine and Abuse in the field of disharmonized taxation -The leading case-Cadbury Schweppes.

scholarly journals The Case Law of the European Court of Justice on Access to Justice in the Aarhus Convention and Its Implications for Switzerland

2014 ◽  
Vol 11 (4) ◽  
pp. 348-366
Author(s):  
Astrid Epiney ◽  
Benedikt Pirker
Keyword(s):  
Case Law ◽  
European Court Of Justice ◽  
Access To Justice ◽  
Present Contribution ◽  
Court Of Justice ◽  
European Court ◽  
Aarhus Convention ◽  
Scope Of Application ◽  
The Right

The present contribution assesses the case law of the European Court of Justice interpreting the provisions of the Aarhus Convention relating to access to justice. Cases have dealt with the temporal scope of application of provisions on access to justice, projects implemented by specific acts of national legislation and their exclusion from the obligations under the Convention, interim relief and the effet utile of provisions on access to justice, the range of possible pleas for judicial review, the role of procedural errors, permissible costs of proceedings, access to justice for environmental associations under different provisions of the Convention and the annulment of a permit and its relationship with the right to property. As is also shown, this case law is at the same time relevant – though not binding – for Switzerland as a non-eu Member State, but party to the Convention.

scholarly journals GUARANTEE OF THE RIGHT TO SILENCE AND OF THE RIGHT NOT TO CONTRIBUTE TO ONE’S OWN INCRIMINATION IN ROMANIAN CRIMINAL PROCEDURE LAW

2018 ◽  
Vol 2 (83) ◽  
pp. 25
Author(s):  
Carmen Adriana Domocos
Keyword(s):  
Freedom Of Expression ◽  
Case Law ◽  
Fair Trial ◽  
European Court Of Justice ◽  
European Convention ◽  
Criminal Offence ◽  
Court Of Justice ◽  
European Court ◽  
Right To Silence ◽  
The Right

The Romanian legislation establishes in the new penal procedure law the right to silence and the right of non-incrimination of the defendant in the criminal trial.The right to silence (to remain silent) is the implicit procedural guarantee of the right to a fair trial, which results from the case law of the European Court of Justice within the meaning of Article 6 paragraph 1 of the European Convention on Human Rights, according to which judicial authorities cannot oblige a perpetrator (suspected of having committed a criminal offence), a suspect or a defendant to make statements, while having, however, a limited power to draw conclusions against them, from their refusal to make statements.Therefore, the right to silence involves not only the right not to testify against oneself, but also the right of the suspect or defendant not to incriminate oneself. The suspect or defendant cannot be compelled to assist in the production of evidence and cannot be sanctioned for failing to provide certain documents or other evidence. Obligation to testify against personal will, under the constraint of a fine or any other form of coercion constitutes an interference with the negative aspect of the right to freedom of expression which must be necessary in a democratic Romanian society.The right not to contribute to one’s own incrimination (the privilege against self-incrimination) is the implicit procedural guarantee of the right to a fair trial, which results from the case law of the European Court of Justice within the meaning of Article 6 paragraph 1 of the European Convention, according to which judicial bodies or any other state authority cannot oblige a perpetrator (suspected of having committed a criminal offence), a suspect, a defendant or a witness to cooperate by providing evidence which might incriminate him or which could constitute the basis for a new criminal charge. It is essential to clarify certain issues as far as this right is concerned.

scholarly journals La posición de las sentencias del tribunal de justicia de la Unión Europea en el sistema constitucional de fuentes

2017 ◽  
pp. 483 ◽  
Author(s):  
Miryam Rodríguez-Izquierdo Serrano
Keyword(s):  
Case Law ◽  
European Court Of Justice ◽  
Law System ◽  
Spanish Law ◽  
Spanish Constitution ◽  
Court Of Justice ◽  
European Court ◽  
El Sistema

Este artículo propone un análisis sistemático de la posición de las sentencias del Tribunal de Justicia en el sistema constitucional de fuentes. El análisis parte de dos premisas: la primera es la de que los órdenes normativos supranacional y estatal tienen autonomía formal, pero no material; la segunda es que la integración del Derecho de la Unión en el ordenamiento estatal no puede explicarse sin la jurisprudencia del Tribunal de Justicia. Se describen los efectos de las sentencias del juez europeo en el orden supranacional, para luego ver cómo se transfieren al sistema de fuentes estatal, teniendo en cuenta la función integradora de la Constitución tanto en el plano interior como en el exterior.This article is a review of the different kind of rulings made by the European Court of Justice, in order to find their function and position in the Spanish Law system. The analysis is made under two assumptions: the first one about the formal autonomy but material dependency between EU and Spanish law systems; the second one is that the European Court of Justice case law rules over the interaction between both systems. Formal and substantive effects of ECJ rulings over both systems are described and analysed, considering the integrating role of the Spanish Constitution.

The Double Life of Effectiveness

2008 ◽  
Vol 10 ◽  
pp. 287-302
Author(s):  
Paolisa Nebbia
Keyword(s):  
General Principle ◽  
Early Stage ◽  
Case Law ◽  
European Court Of Justice ◽  
Effective Protection ◽  
Community Law ◽  
Community Rights ◽  
National Courts ◽  
Court Of Justice ◽  
European Court

As a general principle of Community law elaborated by the European Court of Justice (hereinafter, ECJ or ‘the Court’), effectiveness ‘requires the effective protection of Community rights and, more generally, the effective enforcement of Community law in national courts’: its origins—it has been argued—‘lie in the interpretative techniques of the Court which, even at an early stage, favoured a liberalised construction of the Treaty provisions so as to ensure their effet utile’. In fact, the roots of the principle of effectiveness can be found in the seminal case of Van Gend en Loos, which, without expressly naming that principle, provided the conceptual tools that have moulded its construction throughout the Community case law.

Contours of a European Social Union in the Case-Law of the European Court of Justice

2006 ◽  
Vol 2 (1) ◽  
pp. 101-115 ◽  
Author(s):  
Koen Lenaerts ◽  
Tinne Heremans
Keyword(s):  
Case Law ◽  
Fundamental Principle ◽  
European Court Of Justice ◽  
Social Rights ◽  
Court Of Justice ◽  
European Court ◽  
The Social ◽  
Welfare Systems ◽  
National Welfare

Tensions between national welfare systems and the social rights of the citizens of the Union — Fundamental principle of free movement and the degree of financial solidarity with nationals from other Member States — Introduction of internal market principles in health care — The balancing role of the Court of Justice of the European Communities.

COMPANIES AND THEIR FUNDAMENTAL RIGHTS: A COMPARATIVE PERSPECTIVE

2015 ◽  
Vol 64 (3) ◽  
pp. 661-696 ◽  
Author(s):  
Peter Oliver
Keyword(s):  
Freedom Of Speech ◽  
Case Law ◽  
Fundamental Rights ◽  
European Court Of Justice ◽  
Double Jeopardy ◽  
Court Of Justice ◽  
European Court ◽  
The Us ◽  
Us Supreme Court ◽  
The Right

AbstractThis article explores the case law of the European Court of Human Rights, the European Court of Justice and the US Supreme Court on the fundamental rights of commercial companies. The rights considered include property, the privilege against self-incrimination, freedom of speech, double jeopardy, the right to make political donations, and the freedom of religion. The article highlights the dangers of taking the fundamental rights of companies too far, as has recently occurred in the US; and it advocates a cautious and coordinated approach to this delicate issue, which has become increasingly important on both sides of the Atlantic.

Divergence of European Union and Strasbourg Standards on Defence Rights in Criminal Proceedings? Ibrahim and the others v. the uk (13th of September 2016)

2017 ◽  
Vol 25 (4) ◽  
pp. 327-346 ◽  
Author(s):  
Anneli Soo
Keyword(s):  
Case Law ◽  
European Court Of Justice ◽  
Criminal Proceedings ◽  
Case File ◽  
Court Of Justice ◽  
European Court ◽  
The Supreme Court ◽  
The Uk ◽  
The Right ◽  
Right Of Access

In Directive 2013/48/eu the standard for remedies applicable in cases the right of access to a lawyer has been violated was built on the European Court of Human Right’s judgment Salduz v. Turkey (27 November 2008). Shortly before the deadline to implement Directive 2013/48/eu, the Strasbourg Court handed down its judgment on Ibrahim and the others v. the uk (13 September 2016) significantly lowering this standard. In its ruling on 4 May 2016, the Supreme Court of Estonia interpreted the right of access to a case file upon arrest in conjunction with the Strasbourg case law, without considering that eu law might raise the standard. This article argues that the question whether to follow the Salduz- or Ibrahim-standard serves as a perfect opportunity for the European Court of Justice to clearly articulate that Strasbourg standards on defence rights form just a part of the foundation that eu standards consist of.

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