‘It must be love, love, love’
‘Tax authorities do not fall in love easily’ (Advocate General Michal Bobek)
I was stunned when I read the opening words of Advocate General Bobek’s Opinion in Cussens (C251-16). So stunned that I put the original language version of the sentence into Bing translator to make sure that there hadn’t been a translation malfunction.
Having checked the Czech’s Czech I read on. How can any tax lawyer fail to admire the self-confidence of a man who in his Opinion uses the heading ‘Terminological Note’ and makes reference to Plato’s allegorical cave? The only other time I’ve heard of the word ‘terminological’ being used in public was when it was used by Winston Churchill and he was a legend in his own lunchtime.
So, who or what was the object of the tax authorities affections? I imagine that some items from the UK Revenue’s Valentine’s card list would be:
- Abolishing Monaco and payments in cash
- Taxing fun at punitive rates
- Having a webcam in every takeaway
- Having no, or minimal, contact with ‘customers’
(They are currently working flat-out on the last one).
As you’ve probably guessed, the answer was the European Court’s 2006 judgment in Halifax and Others (C-255/02). This held that the principle of ‘l’abus de droit’ was directly applicable in the sphere of VAT and, according to Advocate General Bobek, the tax authorities have ‘embraced it with passion.’
‘L’abus de droit’ is a principle developed by the European Court from the private law concept of abuse of rights originating in non-common law jurisdictions, in particular, France. The doctrine prevents the misuse of private law rights between citizens. Advocate General Bobek makes this point in his Terminological Note (at paragraphs 24 to 26 of his Opinion) but is not altogether happy with the use of the term ‘abuse of rights’ by the European Court:
‘The term ‘abuse of rights’ is, in my view, more appropriate in situations involving relationships between private individuals, where a party is seen to exercise, for example, existing property rights or rights arising under a contract, in an unreasonable, ill-intentioned or harmful way. There is thus no doubt that a party is the bearer of those rights (in the sense of legal entitlements); what may be problematic is the manner in which that party exercises them.’
In disputes involving the State Advocate General Bobek prefers the term ‘abuse of law’:
‘ … in the area of public law, the more pertinent notion for capturing what is really aimed at is ‘circumvention’, not the essentially private law notion of ‘abuse of rights’. However, since the term ‘abuse’ is now widely used in EU case-law and discourse, I shall stick to it. However, I prefer and will use in this Opinion the expression ‘abuse of law’, which at least hints slightly more at the public law context of the notion’.
It won’t be half as much fun after Brexit, believe me. No more lovely semantics. No more passion. We’ll just be left with grey bureaucrats drooling over their spreadsheets and nudging us into compliance with offers of a £5 John Lewis voucher (taxable?) if we get our returns in on time.
In my view we’ll miss the Continental quirkiness and our jurisprudence will be the poorer for it.
I’ve just found out that there’s a Michal Bobek fan club on Facebook with 592 followers and I’m joining them to make it 593.
To quote Madness again:
Tax lawyer specialising in business tax, SDLT and VAT