Advocate General Bobek has given an opinion in the case Cussens.
Cussens proposes that the Court respond to the questions posed by the Supreme Court of Ireland as follows: The general EU law principle of prohibition of abuse of law is also applicable:
– in the absence of any national measures, whether legislative or judicial, ‘giving effect' to that principle;
– in cases such as the one before the referring court, where relevant transactions were completed before the Court's judgment of 21 February 2006, Halifax and Others (C‑255/02, EU:C:2006:121).
Where a breach of the principle of prohibition of abuse of law has been found to exist, the transactions involved must be redefined so as to re-establish the situation that would have prevailed in the absence of the transactions constituting that abuse.
In circumstances such as those in the main case, to the extent that the pre-sales transactions are disregarded in application of the principle of prohibition of abuse of law, and subsequent sales of the properties are thus deemed to constitute a first supply thereof, those sales should be assessed for VAT in accordance with applicable national rules, read in the light of EU law, in particular Article 4(3)(a) and Article 13B(g) of the Sixth Council Directive.