Effectiveness and Constitutional Standards as a Barrier to the Correct Implementation of the European General Anti-abuse Rule
Effectiveness and Constitutional Standards as a Barrier to the Correct Implementation of the European General Anti-abuse Rule

Summary/Abstract: A key element in the fght against tax avoidance within the EuropeanUnion has been the obligation for all Member States to introduce a harmonised general anti-abuse rule (GAAR). This article explores the interplay between the Polishconstitutional standards regarding the GAAR, the need to ensure its effectivenessand EU standards derived from Art. 6 of the ATA Directive and the case law of theCourt of Justice of the European Union (CJEU). The analysis concludes that, whilethe subjective test was implemented correctly, Poland failed to properly implementArt. 6 of the ATA Directive in relation to the genuine activity test and the objective test.The Constitutional Tribunal established a very high standard for the protection oftaxpayers’ rights, which hinders the proper implementation of the GAAR and conflictswith the case law of the CJEU and the provisions of the ATA Directive.Keywords: general anti-abuse rule, GAAR, constitutional standards, ATA Directive,CJEU case law, incorrect implementation, effectiveness.

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