The General Anti-Abuse Rule under the Anti- Tax Avoidance Directive (ATAD): A Critical Examination of Its Role in Combating Tax Abuse within the Internal Market and the Legal Implications of Its Transposition across EU Member States

This thesis offers a critical analysis of Article 6 of the Anti-Tax Avoidance Directive (ATAD), examining its legal nature, scope, and role within the EU’s evolving anti-abuse framework. It assesses the ATAD GAAR’s coherence with internal market objectives and its integration into Member States’ legal systems.
The thesis is focussed on the following research question: ‘What is the actual normative value of the ATAD GAAR introduced by the ATAD and the legal consequences of its implementation in the Member States’ legal orders?

The research concludes that Article 6 ATAD codifies the EU General Anti-Abuse Principle (EU-GAAP) through its three core elements—subjective, objective, and artificiality—offering limited additional normative value in intra-EU situations while extending the concept of abuse to purely domestic arrangements and entities established in third countries. Although it constitutes a minimum harmonisation measure, the ATAD GAAR grants Member States only limited regulatory discretion, confined exclusively to purely domestic situations or those involving third countries. However, the Directive fails to adequately address the risk of double taxation arising from divergent national interpretations. The widespread use of broadly scoped national GAARs has triggered the Dzodzi doctrine, thereby extending the applicability of EU law to situations formally outside the ATAD’s scope and increasing the need for interpretative guidance from the Court of Justice. Accordingly, it is recommended to harmonise the wording of Article 6 ATAD with the Court’s case law by adopting the “essential purpose” test, to establish a binding mechanism for the elimination of double taxation, to expand the scope of the Tax Dispute Resolution Directive (TDRD), and to encourage systematic use of preliminary rulings to ensure coherence and legal certainty within the EU legal framework.