Prevalenţa economicului asupra juridicului – modalitate de combatere a abuzului de drept în dreptul fiscal
Prevalence of the economic over the legal – a manner of fighting the abuse of right in the fiscal law

Summary/Abstract: The theory of prevalence of the economic over the legal (“substance over form”) in the fiscal law shall be mainly approached from the perspective of the “institution” of the abuse in the fiscal law. From this perspective, it is noticed that the requalification/reconsideration of a transaction is indicated as well, according to its economic content, despite the legal qualification given by the parties to the transaction, which represents the application of the theory of prevalence of the economic over the legal in the fiscal law. In order to understand the manner in which the Romanian legislator advanced this theory, it is necessary the prior analysis of the operative part of the anti-abuse general rule enshrined in the Romanian fiscal law. To this end, this study starts from the analysis of the relevant provisions of art. 11 and art. 404 of the Fiscal Code, when it particularly shows, on the one hand, the contribution of the compared law in the emergence and development of the principle of prevalence of the economic over the legal, and on the other hand, the manner in which this principle is enshrined in the Romanian positive fiscal law within these anti-abuse general rules (items 2-5). Subsequently, the study shall directly approach, on the one hand, the manner in which this principle was enshrined as a stand-alone principle both in art. 14 of the Code of fiscal procedure and in the related case law, and, on the other hand, the manner in which this principle emerged and was finally enshrined in the case law of the Court of Justice of the European Union (items 6-7).

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