December 11, 2023

In a surprising turn of events, an adviser to Europe’s top court recommended reviewing the lower tribunal’s decision. This is the act that favored Apple in its challenge against a 13-billion-euro ($14 billion) EU tax order. 

The adviser, Advocate General Giovanni Pitruzzella, argued that the lower tribunal made several legal errors and failed to assess the substance appropriatelyHe also emphasized the consequences of methodological errors identified by the European Commission in its 2016 decision.

Background to Apple’s Tax Case and EU Antitrust Crackdown

The tax case against Apple was initiated as part of the broader crackdown led by EU antitrust chief Margrethe Vestager. The European Commission, in its 2016 decision, claimed that Apple had benefited from two Irish tax rulings for over two decades. 

This artificially reduced its tax burden to an alarmingly low 0.005% in 2014. The General Court, however, sided with Apple in 2020, stating that regulators had not met the legal standard to prove that Apple enjoyed an unfair advantage.

Conversely, Loewenthal argued before judges at the Court of Justice that this judgment was “legally flawed” and should be set aside. Apple contested the Commission’s claims, asserting that it had fulfilled its tax obligations in the relevant country. 

In his address to the court, Daniel Beard provided clarification regarding the profits at the center of the dispute. The European Commission had contended that these profits should be attributed to branches in Ireland. However, according to Beard, these specific profits were subject to the tax regulations of the United States.

This implies that Apple, in Beard’s argument, had appropriately dealt with these profits under the U.S. tax regime rather than the Irish tax system, as asserted by the Commission. This further suggests that the company had fulfilled its tax obligations according to the laws and regulations of the United States, where the profits were managed.

Apple built up reserves for the payment of those U.S. taxes and paid around 20 billion euros in tax in the U.S. This was on those very same profits that the Commission says should have been taxed by Ireland,” Beard stated. He also noted that Apple had paid the taxes that were due under the Irish tax code.

Potential Implications: Uncertainty for Apple

In recent months, the EU competition enforcer faced setbacks in court battles against challenges by automaker Stellantis, Amazon, and Starbucks. 

Despite these losses, a legal victory was achieved in September when the CJEU sided with the EU competition enforcer in a Belgian tax break case involving a group of multinationals.

While this opinion is not binding, it signals a potential setback for Apple in its ongoing battle against the massive EU tax order. If the EU Court of Justice (CJEU) follows the usual trend of accepting four out of five such recommendations, this could lead to a significant legal reversal for the tech giant. 

The case will now be referred back to the lower tribunal for a fresh review, introducing a layer of uncertainty and complexity to Apple’s tax situation in the European Union.

The CJEU’s final ruling, expected in the coming months, will undoubtedly have far-reaching implications not only for Apple. 

This will also affect the broader landscape of multinational corporations navigating the complexities of international tax regulations.

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