Law ceases where abuse begins: A study of the principle of abuse of rights in the EU as regards to freedom of establishment and free movement of persons

Sammanfattning: The doctrine of abuse of rights in a general sense is not a new one. According to some scholars it can be traced back to as early as Roman law and statements by Praetor Cicéro regarding the purchase of property. The influence of Roman law can be seen in many Member States today and the theory of abuse of law has lived on in many states such as France. However, the doctrine of abuse in EU law is a relatively new concept and was not established as a general principle in the EU until quite late. The principle’s role in the broader context of the EU, more specifically relating to free movement provisions, is still debatable, and has been questioned in free movement of persons. The purpose of this thesis is therefore to investigate how the principle of abuse of rights in EU law came to be, how it has been applied in freedom of establishment and free movement of persons, whether the application differs and if so, how come. The thesis gives an account to the requirements and application of the principle, and the historical developments since its introduction as a doctrine in Van Binsbergen, to it being stated as a general principle of EU law in Kofoed and its application in more modern times. To summarize, the principle of abuse, both in freedom of establishment and free movement of persons, is dependent on whether there is a genuine and effective, and not wholly artificial, exercise of the right to free movement. This is to be determined through the application of a dual test established in Emsland-Stärke and requires an objective- and subjective element. While the Court has applied the test in several cases regarding freedom of establishment, it has refrained from both applying it, and finding abuse to be present, in the context of free movement of persons. I argue that this may be due to companies being creatures of law and artificial by nature. A person however is a physical entity which exists in and of itself and has a presence. Therefore, imagining a scenario where a person exists artificially in another Member State seems difficult and may be why the Court has not considered abuse at length within this context. On the other hand, it must be borne in mind that the Court has been adamant in continuously stating that a right granted under Directive 2004/38 may be denied if the exercise is not genuine and effective and marriage contracted for the sole purpose of enjoying the right of free movement and residence under the Directive is prohibited and considered abusive. However, outside of marriages of conveniences, it is my conclusion that the principle of abuse of rights, as of right now, serves limited practical use in free movement of persons.