Peter Vale
25 Sep 2020
Today’s decision by the EU Commission to appeal the EU General Court verdict, which in July ruled in favour of Ireland and Apple, ultimately comes as a surprise, although rumours of the decision had circulated in recent days.
It means that Ireland, for the time being, will hold onto the €14bn held in escrow in respect of the Apple case.
The General Court’s ruling in June amounted to a comprehensive defeat for the Commission. A view had initially formed that the nature of that defeat meant that the EU Commission would not pursue the case further to the ECJ’s highest court. However it appears that the Commission is keen to fight the case given the precedent it will set.
From Ireland’s perspective, the appeal by the EU Commission keeps the matter in the spotlight for a few more years, which could have adverse reputational implications for Ireland, regardless of the ultimate outcome. Had the Commission decided not to appeal, closure would have been brought to the case, which would have been a positive development for Ireland and indeed ironically for investment into the EU as a whole.
The decision by the Commission to appeal creates more uncertainty for investors looking at Ireland or the EU in respect of the EU tax landscape. There is nothing that scares investors more than uncertainty and with the global tax landscape already in a state of flux, today’s decision does nothing to change that narrative.
The Apple case is now more likely to feature in the US Presidential Election run-in. Tax has become an emotive topic and a long running case, seen by some as part of a campaign waged by the EU against US companies, will only widen the existing wedge between the EU and US.
Ultimately, I believe that the ECJ will rule in favour of both Ireland and Apple, given the apparent strength of their case and the weaknesses in the Commission’s arguments. However should the Commission be successful in its appeal to the ECJ, so that Ireland retains the €14bn, in my view both Ireland and the EU will have suffered long term reputational damage. The adverse implications for Ireland in such a scenario could quickly dwarf the short term cash windfall.
The verdict today is a negative for Ireland and the EU, with no closure brought to the case and lingering uncertainty.
Further challenges for Ireland lie ahead, particularly on the EU front. The OECD is also pushing ahead with the next part of its global tax reform agenda, with updates expected next month. Ultimately, further changes to global tax rules are expected and while these may not favour Ireland, the sooner a consensus is reached the better. The worst scenario for all is a lack of consensus and individual countries ploughing their own furrows, something that is already happening.
