Förbudet mot rättsmissbruk i EU-rätten: En förändrad avvägning mellan rättssäkerhet och rättvisa i den svenska skatterätten

This dissertation concerns a legal development that is currently taking place in Sweden due to its membership in the European Union (EU). It analyses the impact of the EU legal principle on abuse of law (the abuse principle). This principle has been developed gradually under long time in EU law and clarifying rulings from the Court of Justice of the European Union (CJEU) on the general nature of the principle, have been decided fairly recently. To ensure the uniform application of the general principle of abuse of law throughout the EU in the area of direct taxation, the EU Council of Ministers has codified the principle in several EU Directives. This can, in particular, bee seen in Article 6 of Directive (EU) 2016/1164 laying down rules against tax avoidance practices that directly affect the functioning of the internal market (ATAD).

In Sweden, the corresponding issue in a national context is dealt with through a ban on tax evasion in the Tax Evasion Act (1995: 575), which is, however, based on a different underlying legal rationality. As the title of this dissertation states, regulating tax avoidance is often a matter of balancing different values against each other in both EU law and the Swedish legal system – legal certainty vs justice (or fairness). It is demonstrated in the thesis that this trade-off differs in different legal cultures and that this explains the fact that it can be difficult to achieve a EU-compliant application of the principle of abuse of law in Sweden, both in the form of a generally applicable legal principle and in a codified form in the area of tax law (Article 6 in ATAD).

The thesis argues that the Swedish Tax Evasion Act should be revised to better reflect the development in the EU regarding the prohibition on abuse of law. It is submitted that neither the Swedish courts nor the Swedish Tax Authority have been given satisfactory legal pre-conditions to ensure an EU-compliant result.