Koenraad Lenaerts

The Charter and the role of the European courts

On 7 December 2000, in Nice, the Presidents of the European Parliament, the Council and the Commission solemnly proclaimed the Charter of fundamental rights of the European Union. That was not, however, the start of the protection of fundamental rights in the European Union (EU). More than thirty years ago, the Court of Justice had already confirmed that ‘fundamental human rights [were] enshrined in the general principles of Community law and protected by the court’. Regarding fundamental rights as part of the general principles of Community law enabled the Court to ensure respect for these rights in the EU legal order on the basis of Article 220 EC. In order to determine the meaning and scope of the rights concerned, the Court – most likely influenced by the German and Italian constitutional courts – drew inspiration from the constitutional traditions common to the Member States and the international treaties for the protection of human rights on which the Member States have collaborated or of which they are signatories. The European Convention for the protection of human rights and fundamental freedoms (ECHR) soon appeared to be the main international

The Concept of "Abuse of Law" in the Case Law of the European Court of Justice on Direct Taxation

Time and again, the Court of Justice has made clear that EU law does not protect natural or legal persons who seek to pay less tax by creating situations that artificially fall within the scope of application of the fundamental freedoms. In the light of the judgments of the Court of Justice in Cadbury Schweppes, Thin Cap and Glaxo Wellcome, this contribution describes the steps that a national court must follow when determining whether a particular behaviour constitutes an abuse of law in the field of direct taxation.