Bör förfarandemissbruksprincipen tillämpas av svensk domstol?

Through a number of rulings from the European Court of Justice (ECJ) in the past few years a new method for prohibiting abusive behaviour seems to have been established within the European Community. This is in view of the fact that the Court has chosen to acknowledge requests from member states to disqualify claims on Value added tax (VAT) refunds in spite of them being formally legitimate. Perhaps this could mean that there has been a shift in the values of fundamental human rights, so that the elementary protection of our possessions lately has been weakened. Naturally, the techniques for how to distinguish between lawful and abusive behaviour are in no way trouble-free tasks. Unsurprisingly, different ways have been adopted both in the Member States and in the Community as a whole when it comes to preventing circumvention of tax law. This thesis deals with the measures taken by the Swedish legislator on these matters as well as the regulations adopted by Community institutions and principles established by the ECJ. The main objective is to discuss the difficulties in balancing the important determination of having efficient tax law enforcement with the significance of doing it in a way that arbitrary taxation is kept to a minimum. The reason I have chosen to highlight this discussion in connection with the VAT background is that there, in contrary to the area of direct taxation, are no written laws that provide means for Swedish authorities to disqualify an abusive behaviour when it comes to VAT. When there are no actual legal means to chase down those who try to use loopholes to their advantage, the convenience of a flexible anti abuse-principle seems all the more tempting and also all the more unpredictable