<i>Halifax</i> and <i>Cadbury Schweppes</i>: one single European theory of abuse in tax law?

Until now abuse in tax law in the European Single Market has been a matter that was dealt with in many different ways.In income tax the two Directives on cross-border dividends and interests refer the matter to national and treaty anti-abuse provisions.The Merger Directive contains a specific anti-abuse provision with a wording that is different from some national and treaty anti-abuse provisions.In the Sixth VAT Directive there is no single anti-abuse provision.Finally outside taxation there is a flourishing theory of abuse of Community law, but apparently tax lawyers prefer to spend their time in their own garden instead of visiting the garden of Community law and learning something from the flowers that are growing there.Particularly regarding income tax abuse, Community law has not been used as a serious concept that might be useful in protecting national income tax systems.In some cases national tax administrations tried to use the argument of abuse as a justification for national tax measures infringing upon one of the four fundamental freedoms.However in doing so the national tax administrations were always making the argument from the point of view of abuse of national tax law, never from the point of view of abuse of European Community law.As a consequence, in most cases, the national anti-abuse arguments have been overshooting their targets from the point of view of European Community law and therefore have been struck down by the ECJ.This state of affairs may now have changed because of two recent ECJ decisions: Halifax plc v Commissioners of Customs and Excises (C-255/02, 21 February 2006) and Cadbury Schweppes plc v Commissioners (C-196/04, 12 September 2006).Halifax is a VAT decision and Cadbury Schweppes is a corporate income tax decision, involving litigation in two totally different fields of taxation.Therefore the facts in these cases, interesting as they may be, are less relevant than the concept of abuse developed by the ECJ.Both cases deal with the concept of abuse of law not from a national law point of view, but applied from a point of view of European Community law: the Sixth VAT Directive in Halifax and the Treaty freedoms in Cadbury Schweppes.Therefore these decisions open the interesting perspective that the ECJ may finally come around to a coherent general theory of abuse of law that extends in a consistent way the notion of abuse of Community law to all tax matters.At the same time these theories may provide an instrument to protect the integrity of national tax systems, something which the Member States have been desperately and, so far, rather unsuccessfully trying to do, by using the argument of the cohesion of the national tax system.

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