Ireland v Commission

On 29 August 2016, after a two-year investigation, Margrethe Vestager of the European Commission announced: "Ireland granted illegal tax benefits to Apple".[1] The Commission ordered Apple to pay €13 billion, plus interest, in unpaid Irish taxes from 2004–14 to the Irish state.[2] It was the largest corporate tax "fine" (in fact a recovery order, technically not a fine) in history.[3] On 7 September 2016, the Irish State secured a majority in Dáil Éireann to reject payment of the back-taxes,[4] which including penalties could reach €20 billion,[5] or 10% of 2014 Irish GDP.[lower-alpha 1] In November 2016, the Irish government formally appealed the ruling, claiming there was no violation of Irish tax law,[6][7] and that the commission's action was "an intrusion into Irish sovereignty", as national tax policy is excluded from EU treaties.[8] In November 2016, Apple CEO Tim Cook, announced Apple would appeal,[9] and in September 2018, Apple lodged €13 billion to an escrow account, pending appeal.[10] In July 2020, the European General Court struck down EU tax decision as illegal, ruling in favor of Apple.

EU Commission's outline of Apple's unique hybrid–Double Irish BEPS tax structure in Ireland, that used two branches inside a single company, rather than two separate companies, like most other US multinationals.[11]

Ireland v Commission
Decided 15 July 2020
Case numberT‑778/16, T‑892/16
ECLIECLI:EU:T:2020:338
ChamberSeventh
Language of proceedingsEnglish
Judge-Rapporteur
Vesna Tomljenović
President
Marc van der Woude
Judges
Keywords
State aid — Aid implemented by Ireland — Decision declaring the aid incompatible with the internal market and unlawful and ordering recovery of the aid — Advance tax decisions (tax rulings) — Selective tax advantages — Arm’s length principle
Margrethe Vestager European Commissioner for Competition who led case SA:38373 on illegal State aid to Apple in Ireland (2004–2014).[1]

The issue was Apple's variation of the 'double Irish' tax system, which, from 2004 to 2014, Apple used to shield €110.8 billion[5][12] of non–US profits from tax.[13] Apple did not use the standard two separate Irish companies, as Google and other Irish-based US multinationals employ with their 'double Irish' tax systems, but instead received two rulings from the Irish Revenue Commissioners (in 1991, and again updated in 2007), that it could use a single Irish company, split into "two branches". These were private rulings to Apple, not given to other Irish-based US multinationals, and thus charged as illegal Irish state aid by the commission.[11]

On 9 January 2015, Apple informed the Commission[lower-alpha 2] that it closed its hybrid–Double Irish, base erosion and profit shifting ("BEPS") tool.[14] In Q1 2015, Apple restructured into a new Irish BEPS tool called the Capital Allowances for Intangible Assets (CAIA) tool,[12][15] also called the "Green Jersey". Apple's Q1 2015 restructuring required a 12 July 2016 restatement of Irish 2015 GDP, which increased it by 26.3 percent (later revised to 34.4 percent); the restatement was called "leprechaun economics", and led to new EU inquiries in 2017,[16][17] and accusations in June 2018, that Ireland was the world's largest tax haven.[18]

Ireland's rejection of the EU Commission's "windfall" in back-taxes surprised some.[19] However, in § Understanding Irish decision, US-controlled multinationals are 25 of Ireland's top 50 companies; pay over 80% of all Irish corporate taxes (circa €8 billion per annum);[20] directly employ 10 percent of the Irish labour force which rises to 23 percent when public sector, agri and finance jobs are excluded [21][22] (and indirectly pay half of all Irish salary taxes); and are 57 percent of all non-farm OECD value-add in the Irish economy. In June 2018, the American–Ireland Chamber of Commerce estimated the value of US investment in Ireland was €334 billion, exceeding Irish GDP (€291 billion in 2016).[23]

On 15 July 2020, the European General Court ruled that the Commission "did not succeed in showing to the requisite legal standard" that Apple had received tax advantages from Ireland, and ruled in favour of Apple.[24]

On 25 Sept 2020, Executive Vice-President Margrethe Vestager said they would appeal the decision before the European Court of Justice as the Commission believes the General Court has made a number of errors of law. [25]