The European Union’s highest judicial body, the European Court of Justice (ECJ), has confirmed it will deliver a much-anticipated ruling on Apple’s tax situation in the Republic on the 10th of September. Last November, an ECJ key adviser, the advocate general, suggested the ECJ should reject a 2020 decision by the EU’s general court, which determined that the EU Commission could not prove that iPhone manufacturer Apple owed the Republic in excess of €13 billion in back taxes, inclusive of interest charges.
Opinions from the advocate general typically come three to six month prior to the ECJ’s rulings on such cases. Despite initial assumptions in Dublin that the ECJ’s verdict would be released in June, it was later divulged, in mid-June, that the announcement would not occur until after the court’s summer break which ran from mid-July to the close of August.
In November, advocate general Giovanni Pitruzzella stated that incorrect legal assumptions had been made by the general court, the subordinate court. He had also suggested it had not properly considered specific methodological mistakes related to Apple’s Irish tax liabilities. Pitruzzella proposed that the ECJ dismiss the lower court’s ruling and transfer the case back for further evaluation on the merits of the case. The court typically adheres to the recommendations of advocate generals.
In 2016, EU competition commissioner Margrethe Vestager instructed Apple to repay the State an alleged €13 billion in underpaid taxes for the period 2004-2014, asserting that illegal tax aid had been given to the US tech behemoth by the Republic. This was based on two tax opinions, or “rulings” that were issued to Apple by Revenue in 1991 and 2007. The commission alleged that these tax rulings offered Apple an unlawful selective advantage in contrast to other corporate taxpayers.
Apple and Ireland both launched a legal challenge against the commission’s order which resolved in a 2020 decision by the EU general court. This ruled that Ms Vestager’s team could not sufficiently demonstrate that Apple had illegally received State aid. The advocate general concluded that the general court had made a series of legal mistakes in its decision.
In 2018, the Irish Government collected the alleged €14.3 billion in back taxes and interest implied by the commission, and put it into escrow while waiting for the legal proceedings to run their course. The amount was allegedly owed to the State by Apple.
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