EU competition regulators have today appealed to the bloc's highest court to override a lower tribunal and make Apple pay a record €13 billion in Irish back taxes.
The case has far-reaching implications for corporate tax bills.
It is the most high-profile of EU Competition chief Margrethe Vestager's campaign against sweetheart deals between multinationals and European Union states.
"Its outcome will determine whether member states may continue to grant multinational substantial tax breaks in return for jobs and investments," Commission lawyer Paul-John Loewenthal told the Court of Justice of the European Union (CJEU) today.
The European Commission in a 2016 decision said two Irish tax rulings had for more than two decades artificially reduced Apple's tax burden, which was as low as 0.005% in 2014.
The General Court in 2020 said regulators had not met the legal standard to show Apple had enjoyed an unfair advantage.
But Loewenthal told judges at the Court of Justice that judgment was "legally flawed" and should be set aside.
Apple refuted the Commission's arguments, saying it had paid its fair share of taxes in the appropriate country.
"The profits we are talking about - the profits the Commission said should be attributed to these branches in Ireland - those profits were in fact subject to the US tax regime," Daniel Beard told the Court.
"Apple built up reserves for the payment of those US taxes and is paying around €20 billion in tax in the US on those very same profits that the Commission says should have been taxed by Ireland," he said.
"Apple has paid the taxes that were due under the Irish tax code," he added.
Paul Gallagher, representing Ireland, said the European Commission's analysis "was infected" by the "wrong legal premise" and he accused the Commission of making "entirely misleading remarks".
The EU competition enforcer has suffered court losses in recent months to challenges by Fiat Chrysler, now known as Stellantis, Amazon and Starbucks.
But it had a legal victory when the CJEU in September took its side in a Belgian tax break case against a group of multinationals.
The court's Advocate General will give a non-binding opinion in November with a final ruling expected to follow around six months after that.
We need your consent to load this rte-player contentWe use rte-player to manage extra content that can set cookies on your device and collect data about your activity. Please review their details and accept them to load the content.Manage Preferences
Today's case dates back to a European Commission probe which seven years ago found that two tax rulings in 1991 and 2007 issued by Revenue to the firm had "substantially and artificially lowered the tax paid by Apple in Ireland since 1991".
The commission found the technology company had underpaid taxes totalling €13.1 billion between 2003 and 2014 and ordered it to pay the money to Ireland along with €1.2 billion worth of interest.
Apple and Ireland appealed those conclusions to the EU's General Court and the case was heard over two days in September 2019.
The following July the court issued its judgment annulling the commission’s findings.
However, the commission did not accept the decision and in September 2020 announced that it would lodge an appeal, which was heard today.
Apple sources are hopeful that the appeal will fail, while ahead of today’s oral hearing, the Department of Finance said the Government still believes the decision of the General Court is the correct one.
However, if the commission were to win its case, Apple would be forced to pay the unpaid taxes and interest to the State.
Currently that money is sitting in an escrow or third-party holding account and due to the investment environment had fallen in value to €13.635 billion at the end of 2021.
Read more:
All you need to know about the Apple Ireland tax case ahead of the appeal
Apple and Ireland win €13bn tax appeal
The Taoiseach said he looks forward to the appeal being "unsuccessful".
Speaking as he arrived for a Cabinet meeting this morning, Leo Varadkar said it was not true that Apple had a special tax arrangement in Ireland.
"Apple says it's not true. And the European Court that heard the case says it's not true. That is now an appeal. And I look forward to that appeal being unsuccessful and the higher European court confirming the factual positions", he said.
Mr Varadkar said it is important that large companies making big profits in Ireland pay their fair share of tax, adding "they certainly do that in Ireland at the moment".
Additional reporting from Will Goodbody
