Opinion Statement ECJ-TF 3/2020 on the General Court Judgments of 15 July 2020 in the Cases T-778/16 and T-892/16, Ireland v. Commission and Apple v. Commission, on State Aid Granted by Tax Rulings Fixing the Attribution of Profits to Permanent Establishments in Ireland

Abstract

The General Court decisions in Ireland v. Commission and Apple v. Commission (Joined Cases T-778/16 and T-892/16),[1] given on 15 July 2020, follow the Court’s earlier decisions in the Starbucks (Joined Cases C-760/15 and T-636/16)[2] and Fiat (Joined Cases T-755/15 and T-759/15)[3] cases concerning the legality of EU Commission decisions considering certain transfer pricing rulings granted by Member States to multinational enterprises to be prohibited State aid.

The General Court reached a balanced verdict: while agreeing with the Commission on the fundamental point regarding the applicability of the arm’s length principle to Member State tax rulings, it concluded that the Commission had failed to apply that principle in a manner that proved a selective advantage had been granted by the Irish revenue authorities. The Commission has lodged an appeal against the General Court’s decision before the Court of Justice of the European Union (Case C-465/20 P).

This statement focusses on questions of law addressed by the General Court rather than going into detail on the factual/transfer pricing (TP) issues. It focusses, in particular, on the extent to which the Apple case provides clarifications or reveals changes in approach relative to the General Court’s earlier decisions in Starbucks and Fiat.

Keywords: Taxation, Tax law, European taxation

JEL Classification: K33, K34, F13, E62, D78, E62, F02, F23, F42, H20, H22, H23, H25, H26, H87, O19, O23, O24