Cadbury Schweppes (CS) became the paradigmatic example of the difficulties Member States come up with in order to preserve traditional fiscal systems in a common market contest. Even though CS concerned cross-border issues and the fundamental freedom of establishment, the Court effectively imported the Halifax test, albeit with slight differences.

In CS, a company from the United Kingdom had set up a subsidiary in Ireland, for the purpose of taking advantage of Ireland’s attractive corporate tax rate, which was substantially lower than that found in the UK. The United Kingdom subsequently applied its tax charge upon the profit made by the subsidiary in Ireland.

The issue at hand concerned the compatibility of national measures concerning controlled foreign companies (CFC) legislation with the fundamental freedoms. In examining this legislation, the Court explained that should it be contrary to the freedom of establishment, then the question is whether it can be justified for the prevention of wholly artificial arrangements intended to escape the national tax measures which would otherwise be applicable.

The Court also clarified that the UK anti-abuse legislation must not be applied where, on the basis of objective factors, it can be proven that despite tax motives the subsidiary is established in the host State (Ireland) and carries out genuine economic activity.

Part III: Can multiple forms of abuse exist, or is there one unitary notion?