ECJ ruling on €13bn tax case involving Apple and Ireland due in September

Seán McCárthaigh

The Court of Justice of the EU has announced it is to hand down its decision in an appeal against a landmark court ruling involving Apple and the Irish Government on September 10th.

The European Commission is seeking to set aside an earlier ruling by the General Court of the CJEU that overturned its decision that Apple had underpaid taxes to the value €13.1 billion which were due to the Irish authorities between 2003 and 2014.

In 1991 and 2007, the Government issued two tax rulings in relation to Apple Sales International and Apple Operations Europe which approved the method by which both companies, which are not tax resident in Ireland, proposed to treat their chargeable profits from the activity of their Irish subsidiaries.

In 2016, the European Commission declared the aid that Ireland had allegedly granted to the Apple group through the two advance tax rulings was incompatible with EU internal market rules.

As a consequence, it ordered Ireland to recover the unpaid tax from Apple which was estimated at €13.1 billion together with €1.2 billion in interest.

In 2020, the General Court of the CJEU annulled the Commission’s decision on the basis that the Commission had not demonstrated that there was an advantage derived from the adoption of the tax rulings.

Next month, the CJEU will deliver its ruling on an appeal by the Commission against that judgement.

Last November, a CJEU advocate general issued a legal opinion that the court should set aside the judgement and refer the case back to the lower court for a new decision.

The advocate general argued that the General Court had committed a series of errors in law in its ruling four years ago.

Although the opinions of an advocate general in cases before the CJEU are non-binding, they are followed in the large majority of legal disputes.

The Government and Apple have consistently denied that the US tech giant has enjoyed a special tax deal from the Irish authorities.

However, Apple transferred €14.3 billion into an escrow account in 2018 pending the ongoing associated legal challenges to the Commission’s original determination that Apple had underpaid taxes due to Ireland.

The value of the fund stood at €13,774 billion at the end of last year, according to the latest figures.