Comments on abuse of law and free movement of workers

The excellent paper by Katja Ziegler examines the relevance of the ‘abuse of law’ doctrine in the field of the free movement of workers. In this respect, the main claim put forward by Ziegler, a claim that finds me in total agreement, is that the category of abuse of law is factually irrelevant in this field. Thus, despite the fact that the Court has indicated that in theory the provisions on the free movement of workers, and those on the free movement of persons more generally, might not help an abusive claimant, it has never applied this category to a specific case. According to the case law of the Court, the notion of abuse implies an ‘improper use’ of the Treaty freedoms, to circumvent national law. Thus, the notion of abuse seems to imply the relevance of a psychological element, so that the reason why the right-holder exercises her right becomes relevant to the assessment of whether there is an abuse capable of projecting the factual situation outside the protection afforded by the Treaty. However, in the case of the free movement provisions, the Court has repeatedly, and consistently, declared the irrelevance of the reasons, the psychological element, that might have led the individual to exercise her rights. Thus, for instance the fact that the right to move and work in another Member State is exercised with the sole aim of triggering the Treaty so as to benefit of the rights for family members of Community nationals, which is to say with the intention to circumvent national migration law, is immaterial to the enjoyment of such rights. In her paper, Ziegler identifies four possible reasons that might explain the irrelevance of the abuse category in the field of free movement of persons. First of all, the non-existence of a principle of abuse of law, which ‘could be merely an umbrella term for certain factual scenarios. This might be particularly relevant in relation to corporate tax law, where the concept of abuse might usefully be employed to limit the possibility for corporate entities to exploit gaps in the legislation by simply being always a step ahead than the legislative process . In this respect, abuse of law would be a useful tool to avoid the age-old problem of passing legislation through a cumbersome and long legislative process only to find that companies having access to good legal advice find a way around it. In this respect, the abuse of law category might well indicate the application of a ‘sui generis’ mandatory requirement, in that the imposition by the Member State of its rules is a legitimate and proportionate way to protect an aim compatible with Community law (e.g. the need to combat fiscal elusion). Should one not adhere to the claim that ‘abuse of law’ is a non-existent legal category, Ziegler puts forward alternative reasons why the abuse of law doctrine has never been applied by the Court in relation to the free movement of workers. Thus, the Court’s caselaw in the field of the free movement of persons is driven by a very strong integrationist rationale; in interpreting the rights that individuals derive from the free movement provisions the Court is also driven by a citizenship rationale; and finally, the fact that the case law in this field is driven by fundamental rights consideration.