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one and only aim of the transaction, or the most important aim. In reply, the court referenced Advocate-General Maduro and stated that if there was some explanation other than merely the attainment of tax advantages, then there was indeed no abuse present.

The reasoning here seemed to confirm the narrow interpretation of abuse, however in rereferring again to Halifax the Court clarified that for VAT purposes at least, there is an abusive practice when the tax advantage in of the opinion of the judge is the principal reason for engaging in the transaction. No clarity was given as regards the criteria on which a judge should evaluate the importance of the tax advantage to the non-tax advantages.
However, it is clear that this concept is not unlike the abuse concepts to be found in many of the national tax legislations of the Member States. The question, then, is whether this can still be regarded as a European concept of abuse.

5.3 Koefed: a loose use of the abuse concept
Neither based on VAT directives nor Treaty freedoms, the Koefed decision is an interpretation of the Merger Directive, and in particular the anti-abuse provision of the Merger Directive contained in Article 11. Of relevance to the purpose of this paper is the second part of the decision which dealt with the doctrine of abuse of Community law. It started its analysis from Article 11 of the Merger Directive, which provided that a Member State:
“May refuse to apply or withdraw the benefit of all or any part of the provisions… where it appears the merger… has at its principal objective or one of its principal objectives tax evasion or tax avoidance”

It then went on to emphasise that in line with the general principle that abuse of rights is prohibited, Article 11(1)a of the Directive states that individuals: “must not improperly or fraudulently take advantage of provisions of Community law.” , along with stating that the application of Community law cannot cover transactions carried out not in the context of commercial operations, but “solely for the purpose of wrongfully obtaining advantages provided for by Community law”.

In this instance it is apparent the Court adopted a rather flexible use of concepts