Setback for Apple as EU court adviser backs EU’s $14 billion tax order

A lower tribunal which sided with Apple in its challenge against a 13-billion-euro ($14 billion) EU tax order made a series of legal errors and should review the case again, an adviser to Europe’s top court said on Thursday, in a potential setback for the iPhone maker.

The tax case against Apple was part of EU antitrust chief Margrethe Vestager’s crackdown against deals between multinationals and EU countries which regulators saw as unfair state aid.

The European Commission in its 2016 decision said Apple benefited from two Irish tax rulings for more than two decades which artificially reduced its tax burden to as low as 0.005% in 2014.

The General Court in 2020 upheld Apple’s challenge, saying that regulators had not met the legal standard to show Apple had enjoyed an unfair advantage.

Advocate General Giovanni Pitruzzella at the EU Court of Justice (CJEU) said CJEU judges should set aside the General Court ruling and refer the case back to the lower tribunal.

“The judgment of the General Court on ‘tax rulings’ adopted by Ireland in relation to Apple should be set aside,” he said in a non-binding opinion.

He said the General Court committed a series of errors in law and had also failed “to assess correctly the substance and consequences of certain methodological errors that, according to the Commission decision, vitiated the tax rulings”. The CJEU, which will rule in the coming months, usually follow four out of five such recommendations.

The case is C-465/20 P Commission v Ireland and Others.

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