The Legal certainty principle as an EU limitation for articulating anti-abuse clauses: a commentary to the ECJ ruling of July 5, 2012, SIAT Case, C-318/10

Abstract

This article analyses the implications of the recent judgment of the Court of Justice of the European Union, of 5 July 2012 (Case SIAT, C-318/10), which addresses the compatibility with the freedom to provide services of a national measure which establishes a presumption of tax fraud and evasion that excludes the tax deductibility of certain expenses when they occur within the context of cross-border transactions with persons who enjoy a privileged tax regime. The most remarkable aspect of this judgment lies in the contribution made by the ECJ introducing a EU new limit for the shaping of domestic measures against fraud and tax evasion. The Court concluded that the Belgian anti-abuse provision is contrary to Community law because it violates the principle of legal certainty, to the extent that is configured so that it is «not possible to determine in advance and with sufficient precision its scope of application».