Monday, December 19, 2016

Apple EU state aid case, latest developments

Today the European Commission finally released a redacted version of its decision in the Apple EU state aid case.  (The delay reflected stripping out confidential business info, etc., that had been cited in the full official decision.)  I haven't had a chance to read it yet but will be doing so shortly and will then offer here any comments that I might have.  At a first glance, it's certainly in the ballpark of what I had expected.

Also today, Ireland published a short statement explaining its grounds for disagreeing with the EC verdict.

The main legal issue Ireland raises (apart from predictable boilerplate and disagreements about proper EC review scope, etc.) that will likely be at the heart of the ultimate ECJ decision is that of undue “selectivity.”   There’s really no dispute that Ireland (a) was selectively favorable to Apple as compared to domestic companies, but (b) was not selectively favorable to Apple as compared to other multinationals.  Thus, while I am not an expert on EU law, that is the nub of the legal issue.  Is generally treating inbound multinationals more favorably than other companies improper selectivity – or would impermissible selectivity require, say, favoring Apple but not Google, Starbucks, Amazon, etc.?

Of course, I don’t know enough about EU institutions to have a view as to whether this will be decided based on legal argumentation or someone’s policy judgments, which presumably would be responding (one way or another) to the current strains that the EU is feeling given nationalist sentiments all around.

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