THE ADVOCATE GENERAL of the European Court of Justice has recommended that the EU Commission’s €13 billion tax order to Apple should be referred back to the General Court for a new decision.
Giovanni Pitruzzella found that the General Court was mistaken in a previous decision to throw out the European Commission’s case against Apple and Ireland over tax rulings.
The opinion is seen as a significant setback to Ireland’s defence of its past tax treatment of the US technology giant.
The saga has been playing out for over seven years now, with successive Irish governments and Apple arguing that the tax is not owed.
According to the Advocate General, the General Court committed a series of errors in law when it ruled that the Commission had not shown to the requisite legal standard that the intellectual property licences held by Apple Sales International and Apple Operations Europe and related profits, generated by the sales of Apple products outside the USA, had to be attributed for tax purposes to the Irish branches.
The Advocate General also said the General Court failed to correctly assess the substance and consequences of certain methodological errors that, according to the Commission decision, vitiated the tax rulings.
The Advocate General said it is therefore necessary for the General Court to carry out a new assessment.
The opinion of the Advocate General is not legally binding, but it is often reflected in the court’s final ruling.
The judges of the court are now beginning their deliberations in this case and judgment will be given at a later date.
Finance Minister Michael McGrath today noted the development and said Ireland awaits the judgment of the Court of Justice of the European Union.
“It is important to bear in mind that this Opinion does not form part of the Court of Justice of the European Union judgment but is considered by the Court when arriving at its final ruling,” McGrath said in a statement.
“My department and the State’s legal team will consider the full Opinion of the Advocate General in detail.
It has always been, and remains, Ireland’s position that that the correct amount of Irish tax was paid and that Ireland provided no State aid to Apple.
“We now await the judgment of the Court of Justice of the European Union on this matter.”
In a statement to The Journal, a spokesperson for Apple said: “We thank the court for its time and ongoing consideration in this case. The General Court’s ruling was very clear that Apple received no selective advantage and no State aid, and we believe that should be upheld.”
The US tech firm’s position is that it has received no state aid from Ireland and that it has always paid the taxes it owes in accordance with laws in the regions where it operates.
Apple maintains that it has been paying taxes in the US on billions of euro worth of foreign earnings, as that is where its products are created.
It claims Irish tax law was correctly applied on the profit generated in Ireland.
During Leaders’ Questions this afternoon, Sinn Féin’s Pearse Doherty described the opinion as “a blow” for Apple and for the government who took the case.
“Worse still, it is a further embarrassment for the State and again, it shines a spotlight on our tax affairs,” he said.
He asked Agriculture Minister Charlie McConalogue, who was taking questions, if he agreed that the opinion puts further reputational damage on the State and on its past tax arrangements.
McConalogue said the Government takes “very seriously” the tax arrangements that are put in place. He said the Government expects the judgement of the court in a few months time.
While he said it was not appropriate to comment on the case as legal proceedings are ongoing, he said that companies, countries and investors “can have confidence” in Ireland’s tax system.
Back in 2016, following an EU investigation which launched in 2014, the commission concluded that Ireland gave undue tax benefits to Apple, which would be illegal under EU state aid rules.
In 2020, the General Court of the European Union ruled in favour of Apple and the Irish State’s legal challenge against the Commission’s order for the allegedly unpaid taxes to be handed over.
Previously, the EU General Court sided with Apple and the Irish State, and said that the Commission failed to prove that the company had received tax advantages from the Irish state.
The Commission moved to appeal that decision in September 2020.
EU Competition Commissioner Margrethe Vestager said at the time that the General Court had made a “number of errors of law”.
Senior government sources previously described the situation as a “phenomenal political quagmire” and said if Ireland lost the case it would be unprecedented as to how it would be decided as to who gets what.
Speaking to reporters at Fianna Fáil’s Ard Fheis last weekend, McGrath said: “I think the truth is that there may well be further steps in the process.
“But we are confident in our position in respect of the Apple case. We take encouragement from the findings that have been made so far.”
McGrath said what is important is that Ireland stands behind our corporation tax system and “that we support the work of the Revenue Commissioners”.
“It is our view, as has been set out by our legal team at the hearing, that there was no sweetheart deal done.”
With reporting by Christina Finn, Órla Ryan, Jane Matthews, Jane Moore and Press Association
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