Judicial Anti-Abuse tests
The Court has consistently used several terms to designate abuse of law in non-harmonised areas of taxation and abuse of rights in harmonised areas of tax.

In the context of taxation, many regard the starting point of the development of abuse of law as the Halifax and Emsland-Stärke decisions. Given after van Binsbergen, the Greek “challenge” cases, and Centros. Emsland-Stärke was essentially the result of a need to prevent European law from being relied upon in respect of transactions that in substance countered the European legal order. Thus, as a goal, this marks a structural similarity with tax avoidance and tax evasion.

3.1 The establishment of the abuse test and the precursor to Halifax: Emsland Stärke
Shortly after the ruling in Centros, the Court released the Emsland Stärke judgment. This case concerned the common agricultural policy. Emsland Stärke exported various forms of starch to Switzerland, and received an export refund for this. Immediately after, the same products were transported (unaltered) back to Germany, where they were sold. Upon return, the German authorities reclaimed the unduly granted refund back from Emsland Stärke.

Though the Court did not explicitly state that abuse of Community law is a general principle, it agreed with the Commission and implicitly did so. It set up a twofold test for determining such abuse; one part being objective and the other subjective. By including the subjective intention of an interested party involved, Emsland Stärke narrowed down the wide scope the prohibition of abuse had in Van Binsbergen, while conduct which under Centros criteria would be normally considered a mere exercise of fundamental freedoms, would instead constitute abuse, if the objective and subje