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Apple has been dealt a blow by an adviser to the EU’s top court, who has handed a lifeline to the European Commission’s efforts to recover €14.3bn in back taxes over the tech giant’s dealings in Ireland.
Giovanni Pitruzzella, advocate-general of the European Court of Justice, the EU’s highest court, said on Thursday that a landmark ruling quashing the EU’s payment order for the €14.3bn “should be set aside”.
Such opinions by advocates-general are non-binding but often influential in final judgments by the EU’s top court.
The General Court, the EU’s second-highest court, ruled in 2020 that, while it supported the EU’s right to investigate national tax arrangements, Brussels had failed to show that Apple had received an illegal economic advantage in Ireland over tax.
But Pitruzzella said that court had “committed a series of errors in law” and “failed to assess correctly the substance and consequences of certain methodological errors”. As result, he said the court needed “to carry out a new assessment”.
An ECJ ruling is expected next year.
Apple said the General Court’s ruling “was very clear that Apple received no selective advantage and no state aid, and we believe that should be upheld”.
The commission said it did not comment on the opinions given by advocates-general.
The Apple case is part of a wider clampdown launched by Brussels in 2013 against alleged sweetheart tax deals in member states.
Competition commissioner Margrethe Vestager said in 2016 that Apple’s tax arrangements in effect gave the tech giant a tax rate of less than 1 per cent and an unfair edge over rivals, violating the bloc’s state-aid rules.
Ireland collected €14.3bn in contested back taxes and interest from the company in 2018 — funds that have been since held in an escrow account as the legal process continues.
The Commission has also had legal difficulties with other parts of its tax deal clampdown. Brussels is appealing a General Court decision overturning an order to Amazon to pay back taxes in Luxembourg.
The Commission also lost a similar case over the Netherlands’ tax deals with Starbucks, but has not appealed.
Vestager is currently on leave of absence as she makes a bid to head the European Investment Bank.