CJEU - Recent Developments in Value Added Tax 2023

1. Setting the Scene

The substance over form doctrine is probably known by everyone trained in law as it is a form of legal interpretation. Even though all lawyers are familiarized with the doctrine, there are multiple meanings attached to it. To avoid confusion, it is always better, as Andrew Burrows phrased it, “to use other labels to describe precisely what one has in mind”. In this chapter, Burrows’ advice will not be entirely followed; however, what is understood under “form” and “substance” will be explicitly defined.

When taking the Cambridge Business English Dictionary as a commencement for defining the substance over form doctrine, it reads that substance over form is “the idea that a company’s accounts should show what it has really earned in a particular period, what it owns and owes, etc., rather than calculations that are formally or legally correct but do not describe the situation accurately”. That explanation is strongly linked to accounting; however, it already provides a glimpse into what the doctrine is all about even though lawyers would phrase an explanation of the term very differently. Broadly speaking, it privileges inner reality (substance) over false appeara...