In his Opinion delivered on Thursday, 9 November (case C-465/20 P), Advocate General Giovanni Pitruzzella of the Court of Justice of the EU stated that there is reason to set aside the judgment of the General Court of the European Union of July 2020 in the cases (T-778/16 and T-892/16) concerning the tax rulings that Ireland adopted in favour of Apple (see EUROPE 12528/1).
In these cases, the European Commission had taken the view that Apple Sales International (ASI) and Apple Operations Europe (AOE)—two companies incorporated under Irish law but owned by the American multinational—had benefited from unlawful State aid insofar as the tax rulings concerning them that were adopted in 1991 and in 2007 excluded the profits generated by the use of intellectual property licences held by ASI and AOE from the tax base. This [tax] advantage is estimated to be worth €13 billion.
Following an appeal brought by the European Commission, Mr Pitruzzella has proposed that the case be referred back to the General Court so that this court can reach a new decision on the merits.
In his view, the General Court committed several errors of law when it held that the European Commission had not sufficiently proved that the intellectual property licences held by ASI and AOE and the related profits, generated by the sale of Apple products outside the United States, had to be allocated to the Irish branches for tax purposes.
The advocate general also considers that the General Court did not correctly assess the existence and consequences of certain methodological errors that, according to the European Commission’s decision, vitiated the tax rulings.
In the spring, AFP reported that the European Commission’s lawyer made the argument that Apple’s management itself had described the tax rulings before the US Senate as contentious and as investment incentives amounting to State aid.
Irish Minister for Finance Michael McGrath reiterated that Ireland is convinced that Apple paid the correct amount of Irish tax.
See the advocate general’s Opinion: https://aeur.eu/f/9i2 (Original version in French by Mathieu Bion)