Apple launches legal challenge to EU's €13bn tax demand

Company says EU's 2016 ruling uses state aid powers "to retrofit changes to national law"

(FILES) In this file photo taken on February 08, 2018 the logo of the US multinational technology company Apple is on display on the facade of an Apple store in Brussels.  Apple went on the offensive against Brussels in an EU court on September 17, 2019, fighting the European Commission's landmark order that the iPhone-maker reimburse Ireland 13 billion euros (USD 14 billion) in back taxes. / AFP / Emmanuel DUNAND
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The European Union's order for Apple to pay €13 billion (Dh52.6bn) in back taxes to Ireland "defies reality and common sense", the US company said on Tuesday, as it launched a legal challenge against the 2016 ruling.

The iPhone maker also accused the executive European Commission of using its powers to combat state aid "to retrofit changes to national law", in effect trying to change the international tax system and in the process creating legal uncertainty for businesses.

Apple's arguments at the General Court, Europe's second-highest, came after the EU executive in 2016 said the tech giant benefitted from illegal state aid due to two Irish tax rulings which artificially reduced its tax burden for over two decades.

The case is key to European Competition Commissioner Margrethe Vestager's crackdown on sweetheart deals for multinationals, a campaign which has also led to action against Starbucks, Fiat, Engie, Amazon and others.

Apple's chief financial officer Luca Maestri led a six-strong delegation to the court where a panel of five judges will hear arguments from both sides, as well as Ireland, Luxembourg, Poland and the EFTA Surveillance Authority, over two days.

"The Commission contends that essentially all of Apple's profits from all of its sales outside the Americas must be attributed to two branches in Ireland," Apple's lawyer Daniel Beard told the court.

He said the fact the iPhone, the iPad, the App Store, other Apple products and services and key intellectual property rights were developed in the United States, and not in Ireland, showed the flaws in the Commission's case.

"The branches' activities did not involve creating, developing or managing those rights. Based on the facts of this case, the primary line defies reality and common sense," Mr Beard said.

"The activities of these two branches in Ireland simply could not be responsible for generating almost all of Apple's profits outside the Americas."

Mr Beard dismissed criticism of the 0.005 per cent tax rate paid by Apple's main Irish unit in 2014, which was cited by the Commission in its decision, saying the regulator was just seeking "headlines by quoting tiny numbers".

Paying an average global tax rate of 26 per cent, Apple has said it is the largest taxpayer worldwide and is now paying around €20bn in US taxes on the same profits that the Commission said should have been taxed in Ireland.

In its current financial quarter, Apple expects revenue of $61bn-$64bn (Dh224bn-Dh235bn) and a gross margin of 37.5-38.5 per cent.

Ireland, whose economy has benefitted from investment by multinational companies attracted by low tax rates, is also challenging the Commission's decision.

"As Ireland has already emphasised, it undermines legal certainty if state aid measures are used to retrofit changes to national law … and legal certainty is a key principle of EU law; one upon which businesses depend," Mr Beard said.

"Some may want to change the international tax system; but that is a tax law issue — not state aid," he said.

Ireland said it had been the subject of entirely unjustified criticism and that the Apple tax case was due to a mismatch between the Irish and US tax systems.

"The Commission's decision is fundamentally flawed," Paul Gallagher, lawyer for Ireland, told the court.

Lawyers for the Commission will also make their case on Tuesday. The court is expected to rule in the coming months, with the losing party likely to appeal to the EU Court of Justice and a final judgment could take several years.