| 释义 |
abus de droit
[French: abuse of right] A civil law concept that can be traced back to Roman times; it was imported into English law by virtue of its application by the European Court of Justice (ECJ). Where a person carries out transactions solely to obtain the benefits of EU law, the EU right can be withheld (EMU Tabac Case C-296/95 [1998] ECR I-1605). In Halifax plc v Customs and Excise Comrs (Case C-255/02 [2006] ECR I-1609), the ECJ held that it is abus de droit if transactions result in a tax advantage the grant of which is contrary to the purpose of the statutory provision. It is not abus de droit when the action has an explanation other than the attainment of tax advantages. The difficulty for English law is equating the concept of abus de droit, with its reliance on the taxpayer’s motive, with a basic proposition of English law that: “if conduct is presumptively unlawful, a good motive will not exonerate the defendant, and…if conduct is lawful apart from motive, a bad motive will not make him liable” (per Lord Steyn in Three Rivers DC v Bank of England [2000] 2 WLR 1220 at 1230). The UK General Anti-Abuse Rule adopts the same focus on purpose that characterizes the European concept of abus de droit. |