Case-law-based anti-avoidance measures in conflict with proportionality test : comment on the ECJ decision in Kofoed

This article analyses the legality of case-law-based anti-avoidance measures with regard to EC law and the European Convention on Human Rights (ECHR). The author begins by describing the facts and the legal background to the European Court of Justice (ECJ) findings in Kofoed. Then, the Advocate General's Opinion and the ECJ's decision are reported. Finally, such anti-avoidance measures applying in respect of cross-border company reorganizations are tested against EC law and the ECHR.