6.1 Different tests but the same concept
Running against the general grain of this paper, it must be noted that there are of course those such as Lenaerts who would allude to the fact that the definition of a Union concept of abuse of rights by the Commission in Emsland- Stärke and its progressive application to both direct (Halifax) and indirect (Cadbury Schweppes) taxation mean it can be considered an implicit recognition of a general principle only. For many like Lyd , there is simply no difference in how the Court applies its test in areas of indirect and direct taxation.

The language used by the Court is often used to support this argument. Indeed, in the Kofoed case, the Court specifically referred to the prohibition of abuse of rights as one general principle of Union law. The aforementioned interchangeable use of words such as avoidance, fraud and evasion has been replaced by simply “abuse” since Emsland-Stärke.

Nonetheless, I recommend looking beyond the language debate and instead examining the substance of the matter. As described in part two, there has been a progressive application of abuse of rights to various areas of Union law. However, it is clearer still that the concept of abuse as it has developed in Kofoed and Part Service is substantially different from the one which was developed in Cadbury Schweppes. Accordingly, both claim to be the EU concept of abuse. Since both cases, the small chasm which appeared in Halifax has widened even further. The difference is that under the CS criteria, any reason other than a tax advantage is enough to keep the abuse concept at bay, whilst in Part Service, if the tax reasons are of more importance than the non-tax reasons, abuse may be established.

In dealing with situations outside of taxation, Vanistendael has noted that the decision in Centros is the example to keep in mind. The test in Centros highlighted the fact that establishing a company in a Member State whose company law rules are the least restrictive cannot in itself constitute an abuse of the right of establishment. This may be compatible with Cadbury Schweppes, but fundamentally incompatible with the decision in Part Service. The situations defining Cadbury Schweppes (a cross-border problem and fundamental freedom elements) and Halifax (the interpretation of a national tax rule) are also fundamentally different involving different tests. With this in mind, Vanistendael contends it is conceivabl