Language of document : ECLI:EU:T:2017:926

ORDER OF THE GENERAL COURT (Seventh Chamber, Extended Composition)

15 December 2017 (*)

(State aid — Aid implemented by Ireland in favour of Apple — Advance tax agreement (tax ruling) — Selective tax advantages — Action for annulment — Intervention — Representative association whose object is to protect the interests of its members — No interest in the result of the case)

In Case T‑892/16,

Apple Sales International, established in Cork (Ireland),

Apple Operations Europe, established in Cork,

represented by A. von Bonin and E. van der Stok, lawyers, D.M. Beard QC, A. Bates, J. Bourke and L. Osepciu, Barristers,

applicants,

supported by

Ireland, represented initially by K. Duggan and E. Creedon, acting as Agents, and subsequently by K. Duggan, M. Browne, J. Quaney and A. Joyce, acting as Agents, and by P. Gallagher, D. McDonald, G. Collins SC, P. Baker QC, S. Kingston, C. Donnelly and B. Doherty, Barristers,

intervener,

v

European Commission, represented initially by P.J. Loewenthal, and subsequently by R. Lyal and P.J. Loewenthal, acting as Agents,

defendant,

supported by

EFTA Surveillance Authority, represented by C. Zatschler, M. Sánchez Rydelski and M. Moustakali, acting as Agents,

intervener,

APPLICATION for annulment of Commission Decision C(2016) 5605 final of 30 August 2016 on State aid SA.38373 (2014/C) (ex 2014/NN) (ex 2014/CP) implemented by Ireland to Apple,

THE GENERAL COURT (Seventh Chamber, Extended Composition),

composed M. van der Woude, acting as President, V. Tomljenović (Rapporteur), E. Bieliūnas, A. Marcoulli and A. Kornezov, Judges,

makes the following

Order

 Facts and procedure

1        By application lodged at the Court Registry on 19 December 2016, the applicants, Apple Sales International and Apple Operations Europe, brought an action seeking annulment of Commission Decision C(2016) 5605 final of 30 August 2016 on State aid SA.38373 (2014/C) (ex 2014/NN) (ex 2014/CP) implemented by Ireland to Apple (‘the contested decision’).

2        By documents lodged at the Court Registry on 31 March 2017, Ireland and the EFTA Surveillance Authority sought leave to intervene in support of, respectively, the applicants and the Commission. Those applications were notified to the main parties in accordance with Article 144 of the Rules of Procedure of the General Court.

3        By decision of 28 June 2017, the President of the Seventh Chamber (Extended Composition) of the General Court granted Ireland’s application for leave to intervene.

4        By order of 19 July 2017, the President of the Seventh Chamber (Extended Composition) of the General Court granted the EFTA Surveillance Authority’s application for leave to intervene.

5        By document lodged at the Court Registry on 30 March 2017, IBEC Company Limited by Guarantee (‘IBEC’), 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.

6        That application for leave to intervene was notified to the main parties in accordance with Article 144(1) of the Rules of Procedure.

7        By document lodged on 25 April 2017, the applicants raised no objections to IBEC’s application for leave to intervene.

8        By document lodged on 25 April 2017, the Commission raised objections to that application.

9        In accordance with Article 144(5) and Article 19(2) of the Rules of Procedure, the acting President of the Seventh Chamber (Extended Composition) of the General Court referred the decision on the application for leave to intervene to the Chamber.

 Law

10      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 shall be limited to supporting the form of order sought by one of the parties.

11      It is settled case-law that the concept of an interest in the result of the case, within the meaning of Article 40 of the Statute of the Court of Justice, must be defined in the light of the precise subject matter of the dispute and be understood as meaning a direct, existing interest in the ruling on the forms of order sought and not as an interest in relation to the pleas in law put forward. The expression ‘result’ is to be understood as meaning the operative part of the final judgment which the parties ask the Court to deliver (orders of 25 November 1964, Lemmerz-Werke v High Authority, 111/63, EU:C:1964:82, at 717, and of 4 February 2004, Coöperatieve Aan- en Verkoopvereniging Ulestraten, Schimmert en Hulsberg and Others v Commission, T‑14/00, EU:T:2004:32, paragraph 11). It is necessary, in particular, to ascertain whether the applicant to intervene is directly affected by the contested decision and whether its interest in the result of the case is established (order of the President of the Court of 17 June 1997, National Power and PowerGen v Commission, C‑151/97 P(I) and C‑157/97 P(I), EU:C:1997:307, paragraph 53, and order of 3 June 1999, ACAV and Others v Council, T‑138/98, EU:T:1999:121, paragraph 14).

12      Furthermore, according to equally settled case-law, intervention is permissible by representative associations whose object is to protect their members in cases raising questions of principle that are liable to affect those members (orders of the President of the Court of 17 June 1997, National Power and PowerGen v Commission, C‑151/97 P(I) and C‑157/97 P(I), EU:C:1997:307, paragraph 66, and of 28 September 1998, Pharos v Commission, C‑151/98 P, EU:C:1998:440, paragraph 6; orders of 26 July 2004, Microsoft v Commission, T‑201/04 R, EU:T:2004:246, paragraph 37, and of 28 May 2001, Poste Italiane v Commission, T‑53/01 R, EU:T:2001:143, paragraph 51). More specifically, an association may be granted leave to intervene in a case if it represents a significant number of undertakings active in the sector concerned, if its objects include the protection of the interests of its members, if the case may raise questions of principle affecting the functioning of the sector concerned and if the interests of its members may therefore be affected significantly by the forthcoming judgment (orders of 8 December 1993, Kruidvat v Commission, T‑87/92, EU:T:1993:113, paragraph 14, and of 28 May 2004, Akzo Nobel Chemicals and Akcros Chemicals v Commission, T‑253/03, EU:T:2004:164, paragraph 21).

13      In the present case, it should be borne in mind that the form of order sought by the applicants seeks annulment of the contested decision. By that decision, the Commission found that the two tax rulings issued by Ireland in 1991 and 2007 in favour of the applicants, which enable the latter to determine their tax liability in Ireland on a yearly basis, constitute State aid, within the meaning of Article 107(1) TFEU, which had been unlawfully implemented in breach of Article 108(3) TFEU and is incompatible with the internal market. Furthermore, the Commission ordered Ireland to recover that aid from the applicants.

14      In support of its application for leave to intervene, IBEC argues, first, that it is a body representing the interests of its members, namely, 42 employer’s organisations which include mostly small- and medium-sized undertakings as well as larger firms, both national and multinational in nature, which carry on economic activities in Ireland and, in particular, are subject to corporation tax in that country.

15      Secondly, IBEC argues that, among its key objectives and activities are, in particular, those relating to influencing the creation of national and European tax policies and those connected with promoting the competitiveness of, and encouraging long-term investment in, Ireland. In particular, it puts forward its membership of the Business Europe federation, as the only Irish member, the Business and Industry Advisory Committee of the Organisation for Economic Co-operation and Development (OECD), and its role in the development of tax and economic policies in Ireland.

16      Thirdly, IBEC argues that its members, in particular those who are active in the pharmaceutical, medical instruments or technology sectors, have a real and current interest in annulment of the contested decision, which has created uncertainty with regard to the tax rulings of the Irish tax authorities, which has an impact on the international reputation of Ireland and repercussions on investments in that country. Dismissal of the action would have significant negative consequences for undertakings operating in Ireland, in particular those belonging to groups established in the United States, as well as for the economy in Ireland in general, as was clear from the comments submitted by IBEC in the context of the procedure conducted by the Commission. Thus, the present case concerns questions of principle which affect the application and functioning of corporation tax in Ireland. Accordingly, IBEC’s members would have a collective interest in the result of the case.

17      Fourthly, IBEC argues that, as a representative of undertakings active in Ireland, it may, by its intervention, supplement the applicant’s arguments by providing a broader view of the Irish tax system. Furthermore, since IBEC has contributed to the development of Irish tax policy, its intervention would be very useful for the purposes of understanding corporation tax in Ireland. Moreover, IBEC noted that several of its members are multinational companies, some of which have their parent company in the United States, and that its intervention could provide clarity for the Court on issues such as the taxation of undertakings not resident in Ireland and provide it with the evidence necessary for its decision.

18      In view of IBEC’s arguments and the documents submitted in support of its application for leave to intervene, it must be noted that, as a body which includes, amongst others, employers’ organisations in Ireland, IBEC indeed represents, directly and indirectly, a significant number of undertakings in that country. Furthermore, according to IBEC, those undertakings are active in several sectors in Ireland, including the technology sector. Moreover, it is clear from IBEC’s articles of association that the objective of the association is, in particular, to protect its members’ interests.

19      However, it must be stated that the arguments put forward by IBEC do not prove that its members’ interests would be affected by the result of the present case within the meaning of the case-law cited in paragraph 11 above.

20      At the outset, it should be noted that the present action seeks annulment of the contested decision, which, it should be recalled, found that there was unlawful State aid incompatible with the internal market and ordered the recovery of that aid from the applicants. Thus, contrary to what is claimed by IBEC, the practice relating to tax rulings itself is not called into question in the present case. Accordingly, annulment of the contested decision would not have any direct effects on the situation of IBEC’s members which benefit from possible anticipated tax rulings and their possible proceedings against the Irish tax authorities.

21      Furthermore, it must be stated that the applicants are two companies incorporated under Irish law but which are not resident for tax purposes in Ireland. IBEC argues that it represents undertakings which are active in Ireland and, in particular, subject to corporation tax in Ireland, but has not shown that it also represents the interests of companies that are not tax resident in Ireland.

22      Next, it should be noted that the arguments alleging that the outcome of the present case could affect Ireland’s international reputation and have negative repercussions on investments in that country are not substantiated in any way. Such potential adverse consequences, based solely on conjecture, cannot justify IBEC’s intervention in the present case. Furthermore, and in any event, the potential negative consequences alleged by IBEC do not constitute effects flowing directly from the result of the present case, but rather constitute uncertain and indirect effects. The possible materialisation of those consequences depends on, first, possible tax policy measures which the Irish tax authorities may consider it necessary to adopt following the outcome of the present case, second, decisions that international investors may possibly take in the light of such measures, and, third, the financial and economic consequences that may result from those decisions. The consequences that may result from the present case are therefore uncertain, including the effects that may arise, if any, affecting the financial situation of IBEC’s members.

23      Lastly, although, admittedly, questions of principle relating to direct business taxation are raised by the present case, such questions, important as they may be, remain necessarily connected to the object of the case, which seeks the annulment of the contested decision, which relates to the application of tax measures by the Irish authorities in the two tax rulings issued by those authorities as regards the applicants. In that regard, it should be recalled that broad interpretation of the right to intervene is intended to facilitate assessment of the context of cases before the EU judicature while avoiding multiple individual interventions that would compromise the effectiveness and proper course of the procedure (see order of 26 July 2004, Microsoft v Commission, T‑201/04 R, EU:T:2004:246, paragraph 38 and the case-law cited). In the present case, IBEC’s arguments do not make it possible to assess to what extent its members themselves have a direct and existing interest in the result of the case which would justify IBEC’s intervention.

24      In those circumstances, since an interest in the result of the case within the meaning of the second paragraph of Article 40 of the Statute of the Court of Justice has not been established, IBEC’s application for leave to intervene must be rejected.

 Costs

25      Under Article 133 of the Rules of Procedure, a decision as to costs is to be given in the judgment or order which closes the proceedings. Since the present order closes the proceedings as far as IBEC is concerned, a decision must be given on the costs relating to its intervention.

26      Under Article 134(1) of the Rule of Procedure, read in conjunction with Article 144(6) thereof, the unsuccessful party is to be ordered to pay the costs, if they have been applied for in the successful party’s pleadings. Since IBEC has been unsuccessful, but the main parties have not sought an order as to costs, it must be held that each party should bear its own costs.

On those grounds,

THE GENERAL COURT (Seventh Chamber, Extended Composition)

hereby orders:

1.      The application for leave to intervene lodged by IBEC Company Limited By Guarantee is rejected.

2.      Each party shall bear its own costs incurred in connection with IBEC Company Limited by Guarantee’s application for leave to intervene.


Luxembourg, 15 December 2017.


E. Coulon

 

      M. van der Woude

Registrar

 

      Acting as President


*      Language of the case: English.