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Abuso del diritto: una riforma impossibile?

Stéphane Buffa

Per quasi un decennio, il meccanismo francese di contrasto all’abuso del diritto, codificato nell’art. L64 Livre des procédures fiscales, è stato al centro di un dibattito in ambito tributario. Gli organi giurisdizionali di ultima istanza – i.e. il Conseil d’Etat (la Suprema Corte Amministrativa) e la Cour de Cassation (la Suprema Corte) – hanno rinnovato la teoria dell’abuso del diritto in materia tributaria. Questo nuovo approccio è stato in larga parte influenzato dalla dottrina della Corte di Giustizia dell’Unione Europea (CGUE). Partendo da un’interpretazio­ne di tale approccio della CGUE e seguendo le indicazioni prospettate dal Conseil d’Etat, il Parlamento francese ha tentato di estendere il concetto di “frode in ambito tributario”. Tale estensione è stata, tuttavia, condannata dalla Corte costituzionale francese (Conseil consitutionnel), con la decisione del 29 dicembre 2013, la quale allinea la propria interpretazione con la giurisprudenza della CGUE e della Corte Europea dei Diritti Umani. Questa decisione fissa limiti diversi per una nuova definizione di “frode fiscale”.

PAROLE CHIAVE: abuso del diritto - frode in ambito tributario - Conseil díEtat francese - giurisprudenza della Corte di Giustizia dellíUnione Europea e della Corte Europea dei Diritti Umani

Abuse of right: an impossible reform?

For almost 10 years, the French procedure preventing abuse of right, codified in art. L64 of the Livre des procédures fiscales, is at the heart of the debate on taxation. The highest judicial bodies – i.e. the Conseil d’Etat (Administrative Supreme Court) and the Cour de Cassation (Judicial Supreme Court) – have renewed the theory of abuse of right in taxation matters. This new movement has been to a large extent influenced by the doctrine of the Court of Justice of the European Union (CJEU). Starting from an interpretation of the CJEU’s doctrine and following the path opened by the Conseil d’Etat, the French Parliament attempted to extend the concept of “fraud in tax matters”. Nevertheless, this extension has been condemned by the Conseil constitutionnel (French Constitutional Court), with its decision of 29 December 2013, which aligns its interpretation with the case law of the CJEU and of the European Court of Human Rights. This decision sets different limits for a new definition of “tax fraud”.

Keywordsabuse of right, fraud in tax matters, French Conseil d’Etat, doctrine of the Court of Justice of the European Union and of the European Court of Human Rights

1. The French background

The French legal framework against abuse of right in tax matters has a legal basis since 1941. Before the reforms of the article L. 64 of the Tax Procedure Code by the Finances Act of 2008, this article only covers the case of fictitious act (the first branch of abuse of right). A specificity of the article is that a reassessment based on the article L. 64 of the Tax Procedure Code will justify the application of a penalty of 80% or 40% of the unpaid tax. Also, even if the abuse of right is not in formal point of view an offence according to the criminal code [1], it is covered by the Principle applicable in criminal matter, such as the jurisdiction of the Legislative on criminal matter or the legality of criminal offences and penalties.

The second branch of abuse of right, tax fraud did not result from Statute law but from a doctrine of both French Supreme Courts based on an interpretation of the article L. 64 of the Tax Procedure Code [2]. In their decisions the Conseil d’Etat and the Cour de Cassation ruled that the Revenue Service can set aside an act made by the taxpayer if no other motives, than tax reasons, justify the act. From these resolutions, the abuse of rights in French law is constituted of two branches: the fictious act, expressly provided by the Statute law, and the operation intended to a tax advantage, called the tax fraud, issuing from a construction of both French Supreme Courts.

The development of the European Case Law has impacted the general doctrine of the abuse of right, more specifically the definition of tax fraud. As the European Court of Justice only admits provision preventing wholly artificial arrangements set up to circumvent tax legislation [3], the Conseil d’Etat rules that the French definition of tax fraud is aimed especially to prevent wholly artificial arrangements set up to circumvent tax legislation [4]. Therefore, the definition of tax fraud was expressly based on a double criterion, in accordance with the doctrine of the European Court of Justice: the artificial arrangements and the motive to circumvent legislation [5]. A year later, the Con­seil d’Etat gave another definition of the tax fraud, more in the overall spirit of the French law. Tax fraud was defined as an act aiming at benefiting from a tax advantage, by a literal application of the law contrary to the aims of the author of the law, and inspired by no other motives than tax evasion or tax reduction [6]. This doctrine of the Conseil d’Etat was enshrined in the new article L. 64 of the Tax Procedure Code, by the article 35 of the Amending Finance Law 2008 [7]. Re-stating the definition of the one given by the doctrine of the Conseil d’Etat, the new provision required three cumulative criteria in order to qualify tax fraud: 1° the literal application of a tax provision contrary to the purpose of the author of the provision (objective test); 2° the absence of a motivation other than benefiting from tax evasion or a tax reduction (subjective test); 3° an effective tax gain.

The most discussed criterion was the subjective test. Indeed, examining whether the subjective test is fulfilled required the Revenue Service to prove that the taxpayer had no other motives than benefiting from a tax advantage. This requirement sets a double challenge for the Revenue Service: proving the intent of the taxpayer, in other words, searching the mind and the heart of the taxpayer, and demonstrating a negative fact, i.e. that no other reasons lead the taxpayer than a tax advantage. It appears as a “probatio diabolica” for the Revenue Service. Conversely, the position of the taxpayer is more favourable because he had just to convince the Court that one reason, other than a tax one, could justify his act. Of course, the Court admitted that the proof of intention could result from objective fact, as the presence of an artificial arrangement. In this point of view the artificial arrangement is a clue, but not a proof, of the presence of a motivation exclusively based on a tax advantage [8]. In some cases the Conseil d’Etat refers to the arrangement exclusively made for tax purposes [9] in order to characterise the tax fraud. Thus, the Conseil d’Etat made easier and more practicable the proof of the intent of the taxpayer, in such way that some authors wrote that the subjective test is pseudo-subjective and based on objective fact [10]. However, even if the artificial arrangement helps the Revenue Service to prove the tax purpose, the taxpayer always had the opportunity to demonstrate the existence of another motive than a tax one. For this reason an amendment was proposed by the legislative in order to extend the scope of the article L. 64 of the Tax Procedure Code.

2. The extension of the scope of the definition of tax fraud

Summer 2013 was marked by the extension of the scope on the concept of tax fraud, by a Legislative attempt, after an extension of the definition of tax fraud by the Conseil d’Etat. This extensions was hardly challenged par the Government and the practitioners.

Several bills and amendments from the Legislative intend to extend the scope of the concept of tax fraud, by including into tax fraud the act made in an essentially or a mainly tax goal, instead of the act made without any other reason that benefiting from a tax advantage (the exclusive tax purpose). The first attempt results from a bill of the 4th July 2013, relating to enforced prevention against tax evasion and tax fraud of the international companies [11]. According to its article 2, the draft law enlarged the concept of tax fraud to acts made with the essential purpose of evading taxation or decreasing taxation. The bill has not been examined by the Legislative. But this proposal was included in the Finances Commission of the National Assembly [12] of the 10th October 2013 [13]. Finally the National Assembly adopted the new definition of the concept of tax fraud by mainly referring to a tax motivation (instead of essentially), against the opinion of the Ministry of Finances [14]. The Legislative considers that the previous definition of tax fraud was not large enough to prevent tax evasion from multinational companies and the draft version of tax fraud tend to restore a level playing field between Revenue Service and international companies. The bill and Legislative Amendment argue such new redaction was in accordance with European Court of Justice Doctrine, specially with the “Halifax” case of 21st February 2006.

The Conseil d’Etat went a step towards the extension of the concept of tax fraud while the new definition of tax fraud was being discussed by the Le­gislative. From the decision “Garnier Choiseul Holding” [15], the Supreme Ad­ministrative Court issued that the operation which consists for a holding to benefit from a tax free distribution of dividends from its subsidiary before recording an impairment loss at the affiliate level could be considered as a tax fraud. However, in this case, the Conseil d’Etat ruled that besides the tax advantage benefitted by the holding there was also a capital gain. Indeed, the Conseil d’Etat assessed that the capital gain was negligible and out of proportion with the tax advantage: the Revenue Service provided proof that the exclusive purpose was a tax purpose. Even if the Conseil d’Etat did not change the principle, according to which the concept of tax fraud required that the tax payer has no other purpose than a tax goal (i.e.: a “sole tax purpose), such decision could have been seen as having an important change on the traditional appreciation of the Conseil d’Etat on the exclusive tax purpose. Indeed, the existence of a benefit other than a tax advantage is not sufficient to dismiss the tax fraud, whether it is negligible or out of proportion with the tax advantage. This means that the Conseil d’Etat not only checked the absence of an advantage other than a tax advantage, but also weighed the tax advantage with the non-tax advantage. By taking this decision into account Olivier Fouquet assessed that the Amendment of the article L. 64 of the Procedure Code would not have impacted the appreciation of the Conseil d’Etat. Indeed for him, in order to characterise whether the goal is an exclusive tax purpose the Conseil d’Etat compared tax purpose and economical purpose in such a way that the exclusive tax purpose is very close to mainly the tax purpose [16].

However, the bill of reform of the article L. 64 of the LPF was hardly challenged by the Ministry of the Economy and some practitioners. The Mi­nistry underlined that the term “mainly” should be in contradiction with the doctrine of the European Court of Human Right [17]. The vagueness of the term has been challenged by many practitioners. “Mainly” is a matter of fact and not of law. Also, it cannot be discussed in front of the Supreme Courts. In practice, the subjective test would not be examined by the Conseil d’Etat or the Cour de Cassation, but by the Court of Appeal. Therefore the appreciation of the subjective test would depend on the local Court, upsetting equality of taxpayers and legal certainty [18]. Moreover the vagueness of the term “mainly” would require a more accurate definition, otherwise it would deprive the Legislative of jurisdictions on the concept of abuse of right, protected by the article 34 of the French Constitution [19]. It has been argued that in the European Court of Justice’s decision the term “essentially” means “exclusively” [20]. Furthermore, with the reference of the artificial arrangement the Conseil d’Etat had a more objective approach of the subjective test, more compatible with the European Court of Justice’s Doctrine. The use of the term “mainly” would be a retrograde step to a more subjective and a more arbitrary approach [21]. Without going into all of them, many other prin­ciples were interposed to the bill, as the principle of freedom (the right to choose the less taxable path), the non-retroactivity of the most stringent law, principle of legality of criminal offences and penalties [22]. Such criticisms were echoed by the Conseil Constitutionnel(constitutional council).

3. The Conseil Constitutionnel’s reponse

The Conseil Constitutionnel received the complaint against the article 100 of the Financial Act of 2014, providing that the subjective criterion of abuse of law would be filled if the operation made by the taxpayer aims “mainly” at benefiting from tax evasion or decrease of tax. The plaintiffs adduced many constitutional principles in order to demonstrate the new formulation of the subjective test to be incompatible with the Constitution. They based their arguments on the principle of freedom, according to them guarantying the freedom of the taxpayer to choose the less taxable path; the principle of legality of criminal offences and penalties, the principle of legal certainty, the objective of accessibility and comprehensibility of the law, the article 34 of the Constitution (Legislative jurisdiction on tax matter) and the non-retroactivity of the most stringent law.

However, the Conseil Constitutionnel based its decision on the article 34 of the Constitution, the objective of accessibility and comprehensibility of the law and the principle of legality of criminal offences and penalties. In other words, the article 100 was not challenged by the Conseil Constitutionnel because it impose a limitation to the freedom of the taxpayer, but only because they did not ensure a sufficient legal certainty. According to the Con­seil Constitutionnel(constitutional council), the article 34 requires the Legi­slative to fully exercise its competence and the constitutional objective of accessibility and comprehensibility of the law requires the Legislative to vote clear and unambiguous provisions in order to prevent subject of law against interpretation in violation with the Constitution or against the risk of arbitrary, without delegating to administrative or judicial authority to set the rules that have to be provided by Statute law. Then according to the article 34 of the Constitution and to the principle of legality of criminal offences and penalties, Legislative has to set Itself the scope of criminal law and to define criminal offences clearly and precisely. According to the Conseil Constitutionnel the effect of the reference to the “main tax purpose” is to provide a wider margin of discretion to the Revenue Service. Moreover, the Conseil Constitutionnel noted that the procedure of tax fraud apply to all tax on business and individuals and the procedure is accompanied by a penalty of 80% or 40%. Under this consequence the Legislative could not refer to the expression “mainly tax purpose”.

Even if the Conseil Constitutionnel did not rule that the provisions are compatible with the other constitutional principles presented against the article 100, such as the freedom of the taxpayer to choose the less taxable path or the principle of non-retroactivity of the most stringent law, its reasoning was focused on principle relating to legal certainty. It is true that the bill provided the application of the reform from the reassessment proposed after the 1st January 2016 relating to operation realised after the 1stJanuary 2014 and the freedom of the taxpayer to choose the less taxable path has not been yet recognised as a constitutional principle. The most interesting part is that the Conseil Constitutionneldid not only base its reasoning on the principle of legal certainty in criminal matter (i.e.: principle of legality of criminal offences and penalties), but also to general principle relating to legal certainty not limited to criminal law (i.e.: Legislative jurisdiction on tax matter and the objective of accessibility and comprehensibility of the law). This reasoning is not new in the doctrine of the Conseil Constitutionnel [23] (constitutional council). Previously the Conseil Constitutionnel had decided that from the point of view of the principle of equality, the justification of incentives tax provisions is related to the effective opportunity for the taxpayer to estimate with a reasonable degree of predictability the amount of its tax depending on the opened options [24]. Such reasoning is much closer to the one of the doctrine of European Court of Human Right and the European Court of Justice [25]. Indeed, according to the former to be considered as a law «a norm has to be formulated with sufficient precision to enable the citizen to regulate his conduct; he must be able – if needed with appropriate advice – to foresee, to a degree that is reasonable in the circumstance, the consequence which a given action may entail» [26]. The European Court of Justicehas a quite similar stance: «Community legislation must be certain and its ap­plication foreseeable by those subject to it (see, in particular, Case C-301/97 Netherlands v. Council [2001] ECR I-8853, paragraph 43). That requirement of legal certainty must be observed all the more strictly in the case of rules liable to entail financial consequences, in order that those concerned may know precisely the extent of the obligations which they impose on them (Case C-326/85 Netherlands v. Commission [1987] ECR 5091, paragraph 24, and Case C-17/01 Sudholz [2004] ECR I-4243, paragraph 34]» [27]. By the doctrines of the Conseil Constitutionnel, the European Court of Human Rights and the European Court of Justice a certain idea of law is developing in taxation: law become less a formal provision (as “Statute Law” or a French law enacted by a Parliament) than a provision sufficiently clear to be applied by taxpayer. According to this point of view, it is easy to understand that a general principle of tax fraud with a vague meaning in order to prevent the various form of tax arrangement is flawed. The vagueness required for the effectiveness of the principle of tax fraud is not compatible with the requirements of this doctrine.

The decision of the Conseil Constitutionnel also brought a close to the discussion on the compatibility of the reform with European Union Law. The doctrine of the European Court of Justice has given rise to different interpretation by Members of Parliament and practitioners. Many based their reasoning on a rigorous analysis of the word used by the European Court of Justice in order to advocate for or against the bill. In fact, with a literal approach, the doctrine of the European Court of Justice can be interpreted in many ways. Indeed, the Court could referred to the “essential aim of the transaction concerned” [28], the “principal aimof the transaction or transactions in issue” [29], or the “sole aim” [30]. However, an extensive application of the principle of tax fraud by the article L. 64 of the Tax Procedure Code should not be considered in compliance with the Fundamental Freedoms of the European Law [31]. With a strict interpretation of the Constitution, according to which the reference to the “main tax aims” is not in compliance with the provision of the Constitution, the Conseil Constitutionnel seems to prevent the French bill to a European Union condemnation. The Conseil Constitutionnel follows the footsteps of the Conseil d’Etat that interpreted the French principle of tax fraud in the light of the doctrine of the European Court of Justice in order to prevent any condemnation [32].

Was such strict position of the Conseil Constitionnel necessary? Apparently not, if we referred to the conclusions of M. Poiares Maduro, because the problem is the appreciation of intention of the party being indecisive: «In my view it is not therefore a search for the exclusive subjective intentions of the parties that ought to determine the existence of the subjective element mentioned in Emsland. Instead, the intentions of the parties to improperly obtain an advantage from Community law are merely inferable from the artificial character of the situation to be assessed in the light of a set of objective circumstances. Provided that those objective circumstances are found to exist one must conclude that a person who relies upon the literal meaning of a Community law provision to claim a right that runs counter to its purposes does not deserve to have that right upheld. In such circumstances, the legal provision at issue must be interpreted, contrary to its lite­ral meaning, as actually not conferring the right. It is in consideration of the objective purpose of the Community rules and of the activities carried out, and not the subjective intentions of individuals, which, in my view, lies at the heart of the Community law doctrine of abuse. I am of the view, therefore, that the use of the term ‘abuse of rights’ to describe what is, according to the case-law of the Court, in essence a principle of interpretation of Community law may actually be misleading. I prefer therefore to use the term ‘prohibition of abuse of Community law’ and will speak of ‘abuse of rights’ only where simplicity so requires [33]». Nevertheless, the Conseil Constitutionnel did not condemn the bill because of the extension of the abuse of law, but because of the vagueness of the term. The requirement of a “sole tax aim” ensuresa legal certainty for the taxpayer that does not ensure the reference to the “main tax purpose”. The problem of tax fraud does not result from a large or a small application, but from the risk of attempt of legal certainty, and therefore to the certain idea of law provided by the Conseil Constitutionnel, the European Court of Justice and the European Court of Human Rights. Even if after the decision of the Conseil Constitutionnel the reform of tax fraud seems to be abandoned it is interesting to analyse the possibilities that remain to authorities in the matter of tax fraud.

4. Consequence of the decision on the Legislative and on the Supreme Court

After the decision of the Conseil Constitutionnel a new formulation of the definition of tax fraud seems to be limited for the Legislative and the Courts.

4.1. The limit on the possibility to a new reform of abuse of right in a tax matter by the Legislative

The issue for the Legislative appears to be complex. First, it is doubtful that removing the penalties would be a solution. The decision of the Conseil Constitutionnel was not only based on the principle of legality of criminal offences and penalties but also on the article 34, providing the Legislative jurisdiction on tax matter and the objective of accessibility and comprehensibility of the law. It means that the bill was not censured because it intervenes in criminal matter, but because of the vagueness of its terms. The removal of the penalties would not impact the decision of the Conseil Constitutionnel.

Other solution would be to extend the scope of the procedure while maintaining a precise definition of the tax fraud. Nevertheless, in practice, it is not clear how to give a precise definition by replacing the “sole tax aim”. An “essential tax aim” would surely be considered as so deprived of precision than the “mainly tax aim”. I do not see which other expression would be so precise than sole tax aim [34]. The criterion of the sole tax aim provides the advantage to avoid the uncertain balance between tax advantages and economical advantages and ensures, to some degree, legal certainty [35]. That seems even truer, if we refer to the Conseil d’Etat which considers that their interpretation of the article L. 64 of the Tax Procedure Code resulting from a settled case-law preclude any ambiguity concerning the definition of the tax fraud [36]. It means that, even if the statutory definition of the tax fraud would be considered as not entirely clear, the case-law resulting from the Conseil d’Etat made it more precise. Also, a new statutory definition would need to be interpreted by case law in order to be deprived of ambiguity; before a well-established case law a new definition of tax fraud would be necessarily ambiguous. That is why there is little chance that a new definition of tax fraud be entered into force.

A third solution, would be to close the enforcement loopholes that taxpayers exploit in order to circumvent law. In fact, some provisions have been enacted in order to counter fraud on some specific regimes, as the contribution in kind of securities followed by the sales of the same securities [37], distribution and cession in a group relief [38], or distribution of dividends and cession with the application of the exemption of tax on distribution [39]. If such legal policy provides more legal certainty than the one consisting of extending the general principle of fraud, it cannot cover all arrangements aiming at avoiding taxation. The taxpayers will always keep a step ahead on the Legislative reform.

4.2. The limit on the possibility to a new reform of abuse of right in a tax matter by the Courts

Both Supreme Courts seem to be well suited to resolve the issue. However, even for them, there is very little flexibility to extend the definition of tax fraud, whether there is a will to go in this direction. Indeed, it seems that the Conseil Constitutionnel’s decision impacted the doctrine of the Conseil d’Etat. This latest d’Etat has taken it on board by limiting the impact of its previous doctrine extending the definition of tax fraud by the decision “Choi­seul Garnier Holding”. Lastly, the Conseil d’Etat rephrased its doctrine by the decision “Groupement Charbonnier Montdiderien” [40], concerning a si­milar operation to the “Garnier Choiseul Holding”’s decision. In the “Groupe­ment Charbonnier Montdiderien”‘s decision, the Conseil d’Etat did not consider that the capital gain was negligible, but it considered that, in the absence of all other effect of this operation, the cash flow gain correspond to a tax sharing arrangement. By this new formulation, the Conseil d’Etat did no longer weigh the tax advantage with the economical advantage, but included the cash flow gain in the tax advantage. Without affecting the issues given in the decision “Groupement Charbonnier Montdiderien”, the Conseil d’Etat changed its reasoning by taking a step backward to their previous strict interpretation of the criterion of sole tax purpose. By rephrasing tis decision, the Conseil d’Etat appeared to bring it into line with the decision of the Conseil Constitutionne. However, a rephrasing would not be possible for every case and, after the decision of the Conseil Constitutionnel, the Con­seil d’Etat and the Cour de Cassation, have to maintain the criterion of the sole tax purpose.

5. Conclusion

The decision of the 29th December 2013 restricts the possibilities of an extension of the concept of tax fraud. By limiting the risk of an arbitrary interpretation of the concept of tax fraud, the Conseil Constitutionnel ensures its doctrine is in compliance with the doctrine of the European Court of Human Rights and The European Court of Justice. Two points should be considered: First, the Legislative would have to content itself to overcome loopholes in order to prevent the arrangement avoiding taxation by using flaw of law. This issue is not the most favourable for the Revenue Service, but it is ensuring legal certainty. Then, only a better harmonisation of tax law would limit, to some degree, tax evasion by taking advantage of the difference in States tax legislation.

Note

[1] The “abuse of right” is not under the jurisdiction of Criminal Court, but under the jurisdiction of Tax court.

[2] CE, Plénière, 10th June 1981, n. 19079; Cass. com. 19 avril 1988. Administrative Court Decisions are available online: http://www.legifrance.gouv.fr/initRechJuriAdmin.do. Judiciary Court Decisions are available online: http://www.legifrance.gouv.fr/initRechJuriJudi.do.

[3] Judgement of the Court, 16th July 1998, Case-264/96, Imperial Chemical Industries plc (ICI): if we accept an a contrario interpretation of the decision.

[4] CE 8ème and 3ème s.-s., 18th May 2005, Min c. Sté Sagal, n. 267087, concl. COLLIN, in DF, 2005, n. 44-45, comm. 726; GOULARD, L’abus de droit à la lumière du droit communautaire, in DF, 2005, n. 44-45, p. 1715.

[5] Concl. COLLIN, opcit., p. 1746.

[6] CE sect., 27 September 2006, n. 260050, Sté Janfin, the decision concerned the gene­ral principle of tax fraud applying out of the scope of the article L. 64 of the Tax ProceedureCode; CE, 28th February 2007, Min. c/Persicot, n. 284566: the decision applied the same definition as the one of the previous decision “Janfin”, for tax fraud on the scope of article L. 64 of the Tax Proceedure Code.

[7] Art. 35 of the Amending Finance Law 2008, n. 2008-1443 of the 30th Décember 2008.

[8] AUSTRY-GUTMANN, L’été de l’abus de droit et de la fraude à la loi, FR 39/09, par. 12.

[9] CE 8th and 3rd s.-s., 8th October 2010, n. 31339, Min. c/Bauchart; CE 8th and 3rd s.-s., 8th October 2010, n. 321361, Min c/Four and CE 8th and 3rd s.-s., 8th October 2010, n. 301934, Bazire, concl. L. OLLEON, BDCF 12/10, n. 132.

[10] J. TUROT, Demain, serons-nous tous des Al Capone?, in DF, 2013, n. 36, comm. 394 par. 3. See also in European Union law: See POIARES MADURO(concl.) ECJ 21 February 2006, C-255/02, Halifax plc, par. 70: «When the Court takes the view that an abuse exists whenever the activity at issue cannot possibly have any other purpose or justification than to trigger the application of Community law provisions in a manner contrary to their purpose, that is tantamount, in my view, to adopting an objective criterion for the assessment of the abuse. It is true that those objective elements will reveal that the person or persons engaged in that activity had, most likely, the intention of abusing Community law. But it is not that intention that is decisive for the assessment of the abuse. It is instead the activity itself, objectively considered».

[11] http://www.senat.fr/leg/ppl12-726.pdf.

[12] The French “Lower House”.

[13] http://www.assemblee-nationale.fr/14/rapports/r1428-tIII.asp.

[14] Amendment n. 530 discussed the 15th November 2013:http://www.assemblee-nationale.fr/14/cri/2013-2014/20140067.asp#P99791.

[15] CE 9th and 10th s.-s., 17 July 2013, Min. c/SAS Garnier Choiseul Holding, n. 352989, 2013, n. 1054, concl. F. ALADJIDI BDCF 11/13, n. 19.

[16] FOUQUET, La réforme de l’abus de droit: pour quoi faire?, in FR 39/13, par. 3. See also: GUTMANN, Abus de droit: bilan de l’année 2013, in Le Cercle des fiscalistes, 6th January 2014: http://www.lecercledesfiscalistes.com/publication/abus-de-droit-bilan-de-lannee-2013/326.

[17] Debate in the National Assembly, 15th November 2013: http://www.assemblee-nationale. fr/14/cri/2013-2014/20140067.asp#P99791.

[18] FOUQUET, La réforme de l’abus de droit: pour quoi faire?, in FR, 39/13, par. 7.

[19] Ibidem, par. 8.

[20] TUROT, Demain, serons-nous tous des Al Capone, in DF, 2013, n. 36, par. 2.

[21] Ibidem.

[22] AGUILLA-FROGER-GAYRAL-RUTSCHMANN, La réforme de l’abus de droit au prisme de la Constitution, in FR, 50/13.

[23] Décision n. 2011-644 DC du 28 December 2011, Finances Act, 2012.

[24] Décision n. 2005-530 DC du 29 December 2005, Finances Act, 2006.

[25] For an other analysis of the Doctrine of the Conseil Constitutionnel relating to the principe of legal certainty and the legitimate expectation, in the light of the Doctrine of ECHR and EJC, see: JOANNARD-LARDANT, Les principes de sécurité juridique et de confiance légitime en droit fiscal, in DF, 2014, n. 10, comm. 191.

[26] ECHR, 30th September 2011, Association les Témoins de Jéhovah c/France, n. 8916/05.

[27] ECJ 21 February 2006, C-255/02, Halifax plc, par. 72.

[28] Ibidem, par. 75.

[29] ECJ 21 February 2008, C-425/06, Part Service Srl, par. 45.

[30] ECJ, 22 May 2008, C-162/08, Ampliscientifica Srl, par. 28.

[31] See for a French anti-abuse provision considered as not in compliance with European Union law: ECJ, 11 March 2004, C-9/02, Hughes de Lasteyrie du Saillant, par. 50: «As regards justification based on the aim of preventing tax avoidance, referred to by the national court in its question, it should be noted that Article 167a of the CGI is not specifically designed to exclude from a tax advantage purely artificial arrangements aimed at circumventing French tax law, but is aimed generally at any situation in which a taxpayer with substantial holding in a company subject to a corporation tax transfers his tax residence outside France for any reason whatever».

[32] CE 8ème and 3ème s.-s., 18th May 2005, Min c. Sté Sagal, n. 267087, concl. COLLIN, in DF, 2005, n. 44-45, comm. 726; GOULARD, L’abus de droit à la lumière du droit communautaire, in DF, 2005, n. 44-45, p. 1715.

[33] Concl. POIARES MADURO, ECJ 21 February 2006, C-255/02, Halifax plc, par. 71.

[34] FOUQUET, Abus de droit: la sécurité juridique rédactionnelle, in DF, 2014, n. 1-2, p. 9. For the authors a new reform of tax fraud appears as excluded.

[35] Some authors did not seems, recently, entirely convinced: GUTMANN, Abus de droit: bilan de l’année 2013. Le Cercle des fiscalistes, 6th January 2014 http://www.lecercledes 
fiscalistes.com/publication/abus-de-droit-bilan-de-lannee-2013/326What is abuse of right? We no longer know exactly what it is.

[36] CE 9th and 10th s-.s., 23 June 2014, Groupement Charbonnier Montdiderien, n. 360708.

[37] Art. 18 of the Amending Finances Law 2012, n. 2012-1510 of the 29th Décember 2012: http://www.legifrance.gouv.fr/affichTexte.do?cidTexte=JORFTEXT000026857857&fas tPos=1&fastReqId=1101419643&categorieLien=id&oldAction=rechTexte.

[38] Art. 11 of Finances Act 2011, n° 2010-1657, of 29th Décember 2010: http://www. legifrance.gouv.fr/affichTexte.do?cidTexte=JORFTEXT000023314376&fastPos=11&fastReqId=1663973984&categorieLien=id&oldAction=rechTexte.

[39] Art. 16 of Amending Finances Law 2012, of the 16th August, n. 2012-958: http:// www.legifrance.gouv.fr/affichTexte.do?cidTexte=JORFTEXT000026288927&fastPos=3&fastReqId=1009306119&categorieLien=id&oldAction=rechTexte.

[40] CE 9th and 10th s-.s., 23 June 2014, Groupement Charbonnier Montdiderien, n. 360708.


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