The US government applies to intervene in Apple’s EU State Aid case for a second time

Apple and the Irish government have appealed the 2016 Commission’s Decision whereby Ireland was ordered to recover up to EUR 13 billion from the American IT manufacturer.

The US applied to intervene in the case before the General Court of the EU. However, by order of 15 December 2017 in Case T-892/16, Apple Sales International and Apple Operations Europe v Commission, this application was rejected by the Court due to the US failure to show that it was directly concerned by the decision in question or that it has a particular interest in the case. The US has challenged the Court’s order to reject its application to intervene. The reference of the appeal is C—12/18 P(I).

The procedural rules of the General Court of the EU allow Member States and other interested parties to intervene in a case. Whereas this right is automatically recognised for EU Member States, companies and third countries are required to demonstrate that they have a specific interest in the outcome of the case for the right to intervene to be granted.

In this sense, the US argued that: (i) its tax revenues would decrease if the decision is upheld; (ii) the bilateral tax agreement between Ireland and the US would be negatively affected and (iii) the development of the OECD’s transfer pricing rules may be harmed.

The application to intervene filed by the Irish Business and Employers Association has also been rejected by the General Court of the EU.

It is not common that foreign governments seek to appear in support of a party in EU judicial proceedings. The most recent precedent dates back from 1983, when the government of Dominica intervened in a case relating to banana imports (Order of the Court of Justice of the EU of 23 February 1983 in Joined Cases 91 and 200/82, Chris International Foods Ltd v Commission of the European Communities).