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Let Down by the Facts: The General Court Annuls the European Commission Decision on Irish Tax Arrangement for Apple · Joined Cases T-778/16 and T-892/16 Ireland and Others v European Commission · Annotation by Veronika Korom

Annotation on the Judgment of the General Court (Seventh Chamber, Extended Composition) of 15 July 2020 in Joined Cases T-778/16 and T-892/16 Ireland and Others v European Commission

Veronika E. Korom

DOI https://doi.org/10.21552/estal/2021/2/11

Keywords: Apple, tax, burden of proof, OECD, arm’s length principle, fiscal sovereignty

The General Court's decision in Apple’s Irish tax case confirmed that the European Commission is competent to review national tax rulings for whether they confer a selective advantage on a tax payer. Further, the GCEU validated the legal tests on which the Commission relied in reaching its State aid decision. However, the GCEU found that the Commission had failed in its assessment of the specific facts of this case and in particular failed to show the existence of a selective advantage. It therefore annulled the Commission’s decision. Given that the GCEU ruled in favour of the Commission on virtually all points of law but censured the Commission on questions of fact, the Commission’s appeal to the CJEU is likely to face significant challenges on both admissibility and substance.

Dr Veronika Korom is an assistant professor in international business law and arbitration at the ESSEC Business School in Paris and a partner at law firm Queritius, specialising in international investment arbitration, including the interface between EU State aid control and international investment arbitration. For correspondence: <mailto:veronika.korom@essec.edu>.


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