On December 15, 2017 two orders of the Seventh Chamber of the General Court of the Court of Justice of the European Union were published. In these orders the CJEU denies respectively the United States and IBEC Company Limited By Guarantee the right to intervene in the Apple state aid case (Case T‑892/16).
Order ECLI:EU:T:2017:925 (United States of America)
By document lodged at the Court Registry on 13 April 2017, the United States of America sought leave to intervene in support of the form of order sought by the applicants. The applicants (Apple Sales International and Apple Operations Europe) raised no objections to that application for leave to intervene, but the European Commission raised objections to the application of the United States of America for leave to intervene.
Under the second paragraph of Article 40 of the Statute of the Court of Justice of the European Union, applicable to proceedings before the General Court pursuant to the first paragraph of Article 53 thereof, any person able to establish an interest in the result of a case submitted to the Court is entitled to intervene, except in cases between Member States, between institutions of the Union or between Member States and institutions of the Union. An application to intervene is to be limited to supporting the form of order sought by one of the parties.
Furthermore, it follows from the case-law that, when a third country seeks leave to intervene in a dispute before the Courts of the European Union, it is regarded, for the purposes of that application, like any other person, distinct from the Member States, which, pursuant to the second paragraph of Article 40 of the State of the Court of Justice, must establish an interest in the result of a case (order of 23 February 1983, Chris International Foods v Commission, 91/82 and 200/82, EU:C:1983:45). By contrast, where the result of the case in question will have no direct impact on the legal or economic situation of the person in question, that person may not be granted leave to intervene (see, to that effect, order of 14 October 2008, FIFA v Commission, T‑68/08, not published, EU:T:2008:436, paragraph 17).
The United States a.o. argued that it has an interest in the Apple state aid case since its economic situation would be affected by the result of the present case to the extent that the recovery ordered by the contested decision could result in an increase in the amount of tax credits or deductions which the applicants’ parent company could claim from the tax authorities in that country, at the time where that company decides to repatriate profits obtained by its off-shore subsidiaries. Such repatriation could be chosen by the applicants’ parent company or those profits could be regarded as having been repatriated following a possible tax reform in the United States of America.
In this respect the Court concluded that although the contested decision could be viewed as directly harming the applicants’ economic and financial interests, so that the result of the present case is liable to have direct economic consequences for their economic situation, it is necessary to find that those economic consequences could only indirectly affect the economic situation of the United States of America. Those economic consequences could arise only by means of an application for a tax credit, which must moreover be lodged not by the applicants but by their parent company, the economic situation of which would also, but less immediately, be affected by the result of the present case. The Court therefore concluded that the United States has failed to establish the existence of a direct interest in the result of the case.
As regards the criterion relating to whether the interest of the applicant for leave to intervene in the result of the case is actually established, according to the case-law cited in paragraph 12 above, according to the Court it is sufficient to note that, according to the arguments made by the United States of America itself, the alleged negative effects on its economic situation would be dependent on many factors, the occurrence of any of which is far from certain, namely, the repatriation of the profits of the off-shore subsidiaries of the parent company of the group to which the applicants belong and the tax credit which that company might claim from the tax authorities of the United States of America.
The Court ordered that the application for leave to intervene lodged by the United States of America is rejected.
Click here to be forwarded to the full text and motivation of the Order of the Court as available on the website of the CJEU.
Order ECLI:EU:T:2017:926 (IBEC Company Limited By Guarantee)
By document lodged at the Court Registry on 30 March 2017, IBEC Company Limited by Guarantee, which is a representative body for national and multinational companies operating in Ireland, sought leave to intervene in support of the form of order sought by the applicants.
The Court ordered that the application for leave to intervene lodged by IBEC Company Limited By Guarantee is rejected.
Click here to be forwarded to the full text and motivation of the Order of the Court as available on the website of the CJEU.
Copyright – internationaltaxplaza.info
Stay informed: Subscribe to International Tax Plaza’s Newsletter! It’s completely FREE OF CHARGE!
and
Follow International Tax Plaza on Twitter (@IntTaxPlaza)
