The Advocate General (AG) Pitruzzella’s opinion in Commission v Ireland and Apple is an attempt at a forensic analysis of the GC’s transfer pricing assessment – which is the wrong approach to take in state aid tax ruling cases and out of step with AG Kokott’s recent opinion in Commission v Luxembourg and Engie. While there must be some form of check on domestic tax authorities to avoid undermining competition in the internal market, the CJEU should only intervene where the domestic tax authorities make manifestly erroneous assessments. The AG’s opinion also insufficiently engages with the CJEU state aid judgment in FIAT where the Commission similarly failed to ground its state aid analysis in Luxembourg law.
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The Advocate General (AG) Pitruzzella’s opinion in Commission v Ireland and Apple is an attempt at a forensic analysis of the GC’s transfer pricing assessment – which is the wrong approach to take in state aid tax ruling cases and out of step with AG Kokott’s recent opinion in Commission v Luxembourg and Engie. While there must be some form of check on domestic tax authorities to avoid undermining competition in the internal market, the CJEU should only intervene where the domestic tax authorities make manifestly erroneous assessments. The AG’s opinion also insufficiently engages with the CJEU state aid judgment in FIAT where the Commission similarly failed to ground its state aid analysis in Luxembourg law.
If you are not a subscriber, subscribe now to read this content.
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