CJ, 17-05-2018, nr. C-12/18

Pursuant to the second paragraph of Article 40 of the Statute of the Court of Justice of the European Union, any person may intervene before the Courts of the European Union if that person can establish an interest in the result of a case submitted to one of those Courts.

It is settled case-law of the Court of Justice that the concept of ‘an interest in the result of the case’, within the meaning of that provision, must be defined in the light of the precise subject matter of the case and be understood as meaning a direct and existing interest in the ruling on the forms of order sought and not as an interest in relation to the pleas in law or arguments put forward. The term ‘the result of the case’ refers to the final decision sought, as set out in the operative part of the future judgment (orders of the Vice-President of the Court of 6 October 2015, Metalleftiki kai Metallourgiki Etairia Larymnis Larko v Commission, C-385/15 P(I), not published, EU:C:2015:681, paragraph 6, and of 1 March 2016, Cousins Material House v Commission, C-635/15 P(I), not published, EU:C:2016:166, paragraph 5).

In that regard, it should be ascertained, in particular, whether the applicant for leave to intervene is directly affected by the contested measure and whether his interest in the result of the case is established. In principle, an interest in the result of the case can be considered to be sufficiently direct only in so far as that result is capable of altering the legal position of the applicant to intervene (orders of the Vice-President of the Court of 6 October 2015, Metalleftiki kai Metallourgiki Etairia Larymnis Larko v Commission, C-385/15 P(I), not published, EU:C:2015:681, paragraph 7, and of 1 March 2016, Cousins Material House v Commission, C-635/15 P(I), not published, EU:C:2016:166, paragraph 6).

Furthermore, it follows from the case-law of the Court that, where 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 person, distinct from the Member States, who, pursuant to the second paragraph of Article 40 of the Statute of the Court of Justice of the European Union, must establish an interest in the result of the case (order of 23 February 1983, Chris International Foods v Commission, 91/82 and 200/82, EU:C:1983:45).

It is in the light of those considerations that the United States of America's appeal must be examined.

The United States of America relies on four pleas, alleging four errors of law said to vitiate the order under appeal. First, the General Court wrongly concluded that the position of the United States of America would be affected only if Apple Inc., the parent company of the group to which ASI and AOE belong, decided to apply for a tax credit, without also taking into account the possibility for that company to deduct from the tax due in the United States the amounts paid by way of foreign taxes. Second, the General Court should not have held that the interest of the United States of America in the result of the case was uncertain in view of the fact that it was not established that Apple would have claimed tax credits, to which it would have been entitled, in relation to any taxes recovered by Ireland from ASI and AOE in implementation of the decision at issue. Third, the General Court wrongly held that the interest of the United States of America was indirect on account of the uncertainty as to repatriation of ASI's and AOE's earnings. In particular, the General Court should not have held that the tax reform which the United States of America had referred to in its application to intervene, and which would have introduced in the tax law of that third country a presumption of repatriation of earnings such as those at issue, was hypothetical. Fourth, the General Court misapplied the case-law of the Court of Justice in holding that the position of the United States of America was similar to that of a creditor who, to establish an interest in the case, refers to the consequences of its result on his economic situation.

As regards the third plea, which it is appropriate to deal with first, the United States of America claims that the General Court, in paragraphs 22, 23 and 25 of the order under appeal, wrongly considered that the interest of the United States of America in the result of the case was indirect, due to the uncertainty as to Apple's repatriation to the United States of America of the profits generated by ASI and AOE. In its submission, first, when and how such repatriation occurs is not relevant, given that, as soon as Ireland has recovered the tax payable on the basis of the decision at issue, the United States of America no longer has any valid basis for opposing a claim by the parent company of ASI and AOE for a tax credit or, at the very least, for opposing a tax deduction by that parent company in respect of the sum recovered by that Member State. Second, contrary to what the General Court held in support of its decision, the tax reform mentioned in the United States of America's application to intervene, and under which, in essence, repatriation of the profits of ASI and AOE could have been presumed, is not hypothetical.

In order to rule on this plea, it must be noted that, in paragraph 16 of the order under appeal, the General Court observed that, in essence, the United States of America argued, in support of its application to intervene, that its economic situation could be affected ‘at the time where [the parent company of ASI and AOE] decides to repatriate profits obtained by its off-shore subsidiaries’ because the parent company could then claim from the United States tax authorities tax credits and tax allowances corresponding to the amounts recovered by Ireland in implementation of the decision at issue.

Thus, the Court, in that paragraph, which has not been challenged in this appeal, relied on the fact that, as long as a company established in the United States has not decided to repatriate the foreign profits of its subsidiaries established abroad, those profits are not subject to tax in the United States.

In such a situation, the General Court was correct in requiring, in essence, in paragraph 23 of the order under appeal, that the United States of America, in order to demonstrate its established interest in the result of the case, submit evidence proving that the repatriation of those profits was established.

Admittedly, it cannot be ruled out that, as argued by both the United States of America and ASI and AOE, the time of the repatriation of the profits concerned is not relevant in order to assess the consequences of the decision at issue on the legal situation of the United States of America.

However, there must be such repatriation in order for any tax claim of the United States to arise and, consequently, for any right of Apple to arise enabling it to assert, in respect of that claim, any tax credits or tax deductions, in accordance with United States law.

The General Court found that the United States of America did not provide any concrete evidence to prove that Apple had repatriated amounts resulting from the profits generated by the activity of ASI and AOE. Indeed, in its application to intervene before the General Court, it confined itself to asserting that ‘it is reasonable to expect [Apple] to bring its European profits back to the United States’. Such an assertion, which is not corroborated by any evidence, such as annual accounts of that company proving that, at least for the periods in question, Apple had repatriated the profits of ASI and AOE, does not establish to the requisite legal standard the existence of such repatriation or at least a sufficient likelihood of any forthcoming repatriation. That is all the more so because, as the Commission submits in its response, according to a recent statement of the President of Apple, which is contested neither by the United States of America nor by ASI and AOE, Apple does not intend to repatriate the profits in question because the tax rate is too high in the United States.

As regards the argument of the United States of America that, contrary to what the General Court held in support of its decision, the tax reform mentioned in its application to intervene was not hypothetical, it is sufficient to observe that, as the United States of America itself acknowledges in its appeal, at the time of the adoption of the order under appeal that reform had not yet entered into force.

In any event, the General Court, in paragraph 25 of the order under appeal, examined the document produced by the United States of America on that tax reform and inferred therefrom that the document did not make it possible to understand how that reform would necessarily have resulted in the repatriation by Apple of the amounts resulting from the profits generated by the activity of ASI and AOE. In its appeal, the United States of America puts forward nothing capable of calling into question the conclusion which the Court reached following that examination.

It is true that the United States of America criticises the General Court for not having exercised its powers of inquiry in order to hear it on this issue.

However, according to the Court's settled case-law, the General Court is the sole judge of any need to supplement the information available to it concerning the cases before it (judgment of 24 September 2009, Erste Group Bank and Others v Commission, C-125/07 P, C-133/07 P and C-137/07 P, EU:C:2009:576, paragraph 319, and order of 10 June 2010, Thomson Sales Europe v Commission, C-498/09 P, EU:C:2010:338, paragraph 138).

It follows from all the foregoing considerations that the General Court did not err in law in deciding, in paragraph 26 of the order under appeal, that the United States of America had not established an interest in the result of the case that would follow from the alleged negative effect that the repayment ordered by the decision at issue would have on its tax revenues.

Consequently, the third plea must be dismissed as unfounded.

The lack of certainty as to repatriation by Apple of the amounts resulting from the profits generated by the activity of ASI and AOE is, in itself, a sufficient ground to justify, in law, the General Court's decision that the interest of the United States of America in the result of the case was not established. Since that ground has been unsuccessfully challenged by the United States of America in the context of the third plea, the grounds of the order under appeal relating to the possibility for Apple to claim tax credits or to assert a right to deduct are superfluous. It follows that the other three pleas in the appeal, directed against those grounds, must be declared ineffective.

In light of all of the foregoing, the appeal must be dismissed.