An advocate general of the Court of Justice of the European Union (CJEU) has recommended that a previous ruling of the General Court on the Apple tax case should be set aside.

The case arises from the European Commission’s 2016 decision that two tax rulings linked to two Apple subsidiaries amounted to illegal state aid. It ordered Ireland to recover €13 billion in taxes from the company.

After an appeal by Apple and Ireland, the General Court annulled the commission’s decision on 2020, finding that the EU body had not shown that there was an advantage from the adoption of the tax rulings.

The commission then lodged an appeal, asking the CJEU to set aside the 2020 decision.

New decision

Today (9 November), Advocate General Giovanni Pitruzzella backed the commission’s appeal, proposing that the case be referred back to the General Court for a new decision.

According to the Advocate General, the General Court committed “a series of errors in law” when it ruled that the commission had not shown to the requisite legal standard that the intellectual-property licences held by two Apple subsidiaries, ASI and AOE, and related profits generated by the sales of Apple products outside the US, had to be attributed for tax purposes to the Irish branches.

He also said that the court had “failed to assess correctly the substance and consequences of certain methodological errors” that, according to the commission decision, affected the validity of the tax rulings.

Judgment awaited

The decision of an advocate general is not binding on the CJEU, whose judgment will be given at a later date.

Minister for Finance Michael McGrath said that his department and the State’s legal team would consider the full opinion of the Advocate General in detail.

“It has always been, and remains, Ireland’s position that that the correct amount of Irish tax was paid, and that Ireland provided no State aid to Apple. We now await the judgment of the Court of Justice of the European Union on this matter.,” he added.