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10 November 2023

The Apple Case: Advocate General Pitruzzella suggests bringing Life to the Commission's EURObn 13 Clawback Claim against Apple

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Introduction

On 9 November 2023, Advocate General Pitruzella has issued his opinion in the historic Apple case (1). In doing so, the Advocate General sides partially with the European Commission’s (“the Commission”) appeal to Court of Justice (“the CJEU”) of the judgment of the General Court (2) whereby the General Court annulled the Commission’s decision to order Ireland to claw back (recover) EURbn 13 for the Apple companies concerned due to certain Irish tax rulings constituting unlawful and incompatible State Aid according to the Commission.

The Advocate General finds that the General Court committed several errors of law in its judgment, for which reason the Advocate General advises the CJEU to set that judgment aside and refer it back to the General Court for the purposes of allowing the General Court to rule on the remaining legal issues.

If the CJEU were to follow the Advocate General when passing its judgment in the appeal case, this could have significant implications for the legal state of play as to when tax rulings may constitute unlawful “State Aid” for the purposes of Articles 107 and 108 TFEU.

By implication and analogy, this could likely also have a similar significant impact on when a tax ruling from a non-EU member state authority could constitute a “Foreign Financial Contribution” or – even – a distortive “Foreign Subsidy” for the purposes of the EU Foreign Subsidies Regulation.

This would imply that undertakings would have to consider and account for such foreign tax rulings in particular when being involved in FSR (3) in-scope M&A transactions and/or EU public procurement procedures.

Thomas Mygind

Partner

+45 30 37 96 58

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Henrik Ringgaard Diget

Associate

+45 30 37 96 81

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Josephine Nielsen

Associate

+45 30 37 96 08

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