Abuse of EU Law Revisited: an Analytical Perspective

The article explores the prohibition of abuse of EU law, a specific doctrine developed by the Court of Justice of the European Union (ECJ). As an exceptional tool, it empowers authorities to deny benefits formally gained by private parties. The doctrine has grown increasingly wide and potent, as illustrated by the recent preliminary rulings in Cussens, Altun and Danish beneficial ownership cases. Simultaneously, it has become more difficult to comprehend. The article tries to explain and systematize the current state of the doctrine, employing analytical legal positivism as a theoretical bedrock. A framework based on various rules and Hohfeldian elements is developed to analyse essential cases, such as Emsland, Cadbury and Cussens. The analysis clarifies doctrinal questions regarding the two-part abuse test and the concept of redefinition.