Sample Solution

The author endorses the opinion of the Advocate General over that put forward by Vanistendael. Part Service is indeed proof that the Court has shown an inclination to allow national courts to apply national law in the area of VAT, however this is insufficient in supporting the argument that more than one concept of 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, V