abuse exists.

6.4 A chasm appearing in the area of VAT?
Whatever the arguments against multiple concepts of abuse existing, it would appear that in the case of VAT at least, the development in Part Service highlights the need for appropriate criteria to prevent further differentiation. In the context of civil law jurisdictions, the Halifax criteria is ultimately imperfect. If we compare the substance of the referred questions in both cases, there is a core element common to both. This further supports the argument that only one concept of abuse exists. As VAT is an object of common policy and interpreted in such a way that does not exactly match other areas of taxation, it follows that abuse may be countered in the absence of rules in this domain.

According to Pistone , Part Service has proven that even in the field of a harmonised area such as VAT, there are significant differences between common and civil law systems with regard to anti-abuse provisions. Pistone contends that it would be up to the Court of Justice to fill in these gaps via future case law; in his opinion, there should not be a different remedy or test in an area such as VAT which is harmonised across the Union.

6.5 Two different concepts corresponding to two distinct needs
Finally, Vanistendael argues that in the context of indirect and direct taxation, the two different concepts correspond to two distinct needs. Thus the Court was justified in setting a separate standard in balancing the fundamental freedoms and the effectiveness of national tax systems. Technically, VAT is secondary European law, yet it functions much like domestic tax law. The issues central to both Halifax and Part Central did not involve fundamental freedoms nor cross-border issues. As cross-border issues under fundamental freedoms are primary EU law, there is an extra dimension here; not only must the balance be obtained between legality and effectiveness (as it is in domestic law), the Court must also balance between the fundamental freedoms and the effectiveness of the national tax system in question. It is therefore logical that a separate standard is used here; i.e the “wholly artificial arrangement’ which the Court was again entirely justified in constructing.

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