As reported in our articles titled “APPLE VS THE EUROPEAN UNION: TAX BENEFITS IN IRELAND” and “TAX RULINGS”, on the 30th of August 2016, the European Commission ruled that the Republic of Ireland helped Apple Inc. evade tax in the order of 13 billion Euros, by providing an advantageous ‘tax ruling’ (acuerdo fiscal) to two of the American multinational’s group companies (Ruling 2017/1283). Now, over eight years later on the 10th of September 2024 (Press Release 133/24), the Court of Justice of the European Union (CJEU) has finally confirmed that ruling, as a result of which the European Commission could now retrospectively review any similar tax relief regimes provided to multinational companies over the past decade.
As was to be expected, both Apple and the Irish tax authority (the Office of the Revenue Commissioners) appealed the 2016 decision. Indeed, in 2020, at the court of first instance (the General Court of the European Union, or GCEU), it was held that the European Commission failed to prove the existence of a preferential tax ruling, neither in favour of Apple Sales International (ASI) nor Apple Operations Europe (AOE).
However, according to its most recent judgment, the CJEU ruled in favour of the European Commission for Competition (led by Margrethe Vestager since 2014), concluding that Apple benefitted from two preferential tax rulings between 1991 and 2014 that allowed it to save billions of Euros in corporate tax. Specifically, the CJEU quashed the judgment passed on 15 July 2020, on the grounds that the court of first instance was incorrect in declaring that the European Commission failed to prove that profits derived from the sale of Apple products outside the United States of America (and from the granting of those products’ corresponding intellectual property licences) should have formed part of the taxable profits of Apple’s two Irish subsidiaries.
The root of this dispute may be traced back to the 1990s – or, more precisely, from 1 January 1993 – with the creation of the EU Single Market, which afforded companies the right to move freely across the EU, whilst still only paying taxes in a single country. Perhaps unsurprisingly, this resulted in countries offering preferential tax regimes to multinational companies as incentives to be based there: Ireland, Luxembourg, the Netherlands (Holland), Malta, Cyprus and Hungary are notable examples. But it was only in 2015 that the European Commission began to challenge these regimes, leading to famous cases against mega-corporates such as Amazon, Fiat, ENGIE and, of course, Apple. All of Apple’s operations across wider Europe are controlled from its Irish headquarters, called “Apple Operations International.”
Nevertheless, the landmark nature of the CJEU’s ruling of the 10th of September lies in the fact that, for the first time, the CJEU has approved the European Commission’s application of OECD Transfer Pricing Guidelines to Irish tax legislation which has been in force since 1991.
In essence, transfer pricing is a mechanism by which group companies set their own price for goods and services exchanged between their various divisions, especially when these divisions are in different countries. This practice allows multinationals to reduce their tax liability by strategically allocating profits between subsidiaries in different tax jurisdictions.
In 1991 and 2007 Ireland adopted two preferential tax rulings which approved the convoluted methods used by ASI and AOE to drastically reduce their tax liability from 1% in 2003 to 0.005% in 2014. In summary, Ireland’s preferential tax rulings allowed Apple to do the following: Apple set up two identical companies in Ireland, with registered office there, but tax domicile in Bermuda. These two companies each had a subsidiary established in Ireland, too, where Apple employed its staff. By means of liberal transfer pricing policies under Irish tax regulations, Apple was able to attribute 99.9% of the profits of these two branches to their head offices domiciled in Bermuda, where no staff were based. Apple provided two justifications for this scheme:
(i) Since the intellectual property licences corresponding to those products which were sold (and generated the taxable profits) outside the USA were managed by its employees of the parent company in the US, the profits of the branches in Ireland should be diverted to the parent companies in Bermuda.
(ii) On the other hand, however, the staff in these branches did generate enough added value that justified these profits remaining in Bermuda, rather than being taxed in the USA.
That way, these profits were neither taxed in the USA nor in Ireland.
However, the European Commission successfully proved, in the judgment of the CJEU, that this ‘added value’ justifying the diversion of 99.9% of the profits to the head offices domiciled in Bermuda was too insubstantial to support said tax scheme, thereby condemning Apple to return the 13 billion Euros (plus interest) of profits generated between 1991 and 2014 back to its branches in Ireland.
According to Margrethe Vesteger, this landmark ruling by the CJEU, which has gone against the grain of past jurisprudence on cases relating to favourable multinational tax regimes, has opened the door to a comprehensive review of all such regimes approved over the past ten years. This decision might well mark a watershed moment in the scrutiny of EU corporate tax liability.
Sebastian Ricks
Vilá Abogados
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20th of September 2024
