On 30 August 2016, the European Commission concluded that two tax rulings issued by Ireland in 1991 and 2007 to Apple constituted State aid. According to the Commission, these tax rulings have substantially and artificially lowered the tax paid by Apple in Ireland since 1991.
The legal presence of Apple in Europe consists of two Irish incorporated companies, namely Apple Sales International and Apple Operations Europe. The first company is responsible for buying Apple products from equipment manufacturers around the world and selling these products in Europe. The second company focuses on manufacturing certain lines of computers for the Apple group.
After an in-depth investigation which started in June 2014, the Commission concluded that the two tax rulings gave Apple Sales International and Apple Operations Europe a selective advantage. This means that other undertakings, which were in the same factual and legal circumstances, did not enjoy the same benefits as these companies. The Commission considered that Apple Sales International and Apple Operations Europe were allowed, due to these rulings, to allocate their profits to their "head office". The head office was not subject to tax in any country under specific provisions of the Irish tax law and existed 'only on paper' as it did not have any employees or own premises. The Commission stressed that tax rulings as such are perfectly legal. However, it was of the opinion that the tax rulings issued by Ireland endorsed an 'artificial internal allocation of profits' within Apple Sales International and Apple Operations Europe. In particular, it held that this allocation had 'no factual or economic justification' as only the Irish branch of Apple Sales International and Apple Operations Europe had the capacity to generate income. Therefore, the Commission concluded that the sales profits of these companies should have been taxed in Ireland. The rulings endorsed a way to establish the taxable profits which did not correspond to economic reality according to the Commission.
The Commission ordered Ireland to recover the illegal State aid received by Apple as a result of the two tax rulings between 2003 and 2013. The Commission can only order the recovery of illegal State aid granted ten years before its first request for information on the matter. In this case this first request was made in 2013.
This article was published in the Competition Law Newsletter of October 2016. Other articles in this newsletter:
- Court of Justice ends Pilkington's fight against fine in the car glass cartel
- General Court upholds Commission's decision that reverse payment settlements constitute a 'by object' infringement
- European Commission puts price signalling on the agenda
- European Commission orders Ireland to recover illegal tax benefits worth up to €13 billion from Apple
- Commission publishes Preliminary Report on the e-commerce sector inquiry
- Brussels Court of Appeal confirms interim measures against exclusive TV broadcasting rights