Abuse of law is now consolidated as a general principle of EU law, yet most studies tend to the sectoral analysis. The present article, albeit starting from the perspective of cross-bor- der commercial transactions, undertakes a cross- section analysis of ECJ case law, and the ele- ments of the concept of abuse it shapes. Of those, the so-called objective”, subjective” and burden of proof” act as safeguards against the doctrine’s potential overreach, but it is the te- leological” or finalistic” one that defines it. From this premise, it is preliminary concluded that, while the doctrine of abuse is a single one, its teleological” component allows it to adapt to norms of different nature and intensity, which gives rise to the perception of its diversity. On this basis abuse of law is put in relation with some of the unsolved issues of European law, which leads to conclude that, in many cases, the conclusion on whether there is abuse or not can be obscured by the difficult equilibria generated by Union law, and the intrinsic complexity of determining the purpose” of the norm or group of norms.
Abuso del Derecho, transacciones transfronterizas y la construcción del mercado interior y de la UE. ¿Un equilibrio imposible?
RAMOS MUNOZ, DAVID
2012
Abstract
Abuse of law is now consolidated as a general principle of EU law, yet most studies tend to the sectoral analysis. The present article, albeit starting from the perspective of cross-bor- der commercial transactions, undertakes a cross- section analysis of ECJ case law, and the ele- ments of the concept of abuse it shapes. Of those, the so-called objective”, subjective” and burden of proof” act as safeguards against the doctrine’s potential overreach, but it is the te- leological” or finalistic” one that defines it. From this premise, it is preliminary concluded that, while the doctrine of abuse is a single one, its teleological” component allows it to adapt to norms of different nature and intensity, which gives rise to the perception of its diversity. On this basis abuse of law is put in relation with some of the unsolved issues of European law, which leads to conclude that, in many cases, the conclusion on whether there is abuse or not can be obscured by the difficult equilibria generated by Union law, and the intrinsic complexity of determining the purpose” of the norm or group of norms.I documenti in IRIS sono protetti da copyright e tutti i diritti sono riservati, salvo diversa indicazione.
