This article discusses the proposition that EU law contains a “general principle” laying down a prohibition of abusive practices of various kinds, which does not have to be implemented by national law before the prohibition can be relied on against a private party. This principle was first introduced in Cussens v. Brosman, and recently confirmed by the Grand Chamber, in Ömer Altun and in N Luxembourg 1. Because of its scope and the power it creates for national authorities, the principle differs from the abuse of rights doctrine previously operating in EU law. The article argues that a principle which prohibits unspecified “abusive practices” at a general level, capable of creating new enforcement powers, is alien to pre-existing ECJ case law; and to the extent it covers also abuses of national law, it cannot be justified on constitutional grounds. It is also incorrect to refer to it as a “general principle”, a tactic used by the Court to make the principle enforceable against a private party.The article argues that EU law in fact contains a limited set of abuse principles generating different effects, only some of which could be brought under an umbrella of a single principle.
Common Market Law Review