European Commission orders Ireland to recover up to EUR13 billion in taxes from Apple

European Commission orders Ireland to recover up to EUR13 billion in taxes from Apple

The European Commission has decided that Ireland granted Apple illegal State aid in the form of a selective tax advantage of up to EUR13 billion.

The Commission has found that two tax rulings given by Ireland that endorsed the transfer of profits within Apple’s group substantially reduced the amount of tax that Apple paid in Ireland and amounted to State aid.

The Commission maintains that the tax arrangements conferred a selective advantage on Apple allowing it to pay substantially less tax than other companies in Ireland.  According to the Commission’s 30 August announcement the arrangements allowed Apple to pay an effective corporate tax rate of 1% on its European profits in 2003 and 0.005% in 2014.

The decision concludes an investigation by the Commission going back to at least 2014.  The decision follows similar rulings in cases involving Fiat Chrysler and Starbucks last year where the Commission ordered the Netherlands and Luxembourg to recover EUR20 million and EUR30 million in unpaid tax from the companies.

The recovery order in the Apple case exceeds the record order of EUR1.37 billion in a state aid case against EDF.  It is the largest sanction to date in the Commission’s competition law enforcement.

Ireland is ordered to calculate the unpaid tax that is due to it according to the Commission’s decision.  However, this assessment will not be straightforward as the Commission says that Ireland may decide that less than EUR13 billion is due to it if it is satisfied that Apple should have paid tax in other countries.

While the application of state aid rules to tax cases is not new the application of the concept of selectivity has given rise to complex issues in state aid cases involving fiscal element. 

The European courts will eventually have to decide whether the Commission has blurred the distinction between the advantage and the selectivity assessment in determining that the arrangements amount to state aid.

There are two concepts which should not be confused. First, is there an advantage? This involves a comparison between the beneficiary’s position with or without the contested measure.  Second, if there is an advantage is it selective?  This involves a comparison between the beneficiary’s position with the contested measure and the position of other taxpayers in a comparable legal and factual position.  Therefore the test is only: Does the measure treat certain undertakings differently by comparison to others who in view of the objective of the measure in question are in a comparable legal and factual situation?

It may be questioned that these recent state aid cases involving individual tax measures represent a legally flawed approach in that inferring selectivity from advantage shifts the burden of proof to the Member States. What is the counterfactual? National rules? The ordinary tax system? What about countervailing effects such as the effect of double tax treaties and the fact that the State benefits from investments?

Among the issues that will be tested will be the question of the appropriate reference framework and the role of discretion by the Member State authorities in formulating their tax policy.

Another issue is whether Apple is entitled to rely on the principle of legitimate expectations since the Commission had not taken action against the measures for two decades.

The rulings will undoubtedly make multinational companies think twice about how they approach the creation of their tax structures.  While the Commission recognises the legitimacy of tax rulings and the freedom for Member States to decide on their tax regimes, companies should be mindful of the state aid risks of relying on those rulings going forward.

Given the significant financial consequences of state aid enforcement, it will be prudent for companies to test the legality of individual rulings they have received or will be applying for.

Since the obligation to notify and seek approval for state aid is on the Member State this places private parties in a difficult position.  The recipient of the aid, rather than the public authority is at risk of having to repay any unlawful aid.  In principle, this includes the situation where aid is granted without having been notified even if it is later deemed compatible with the EU internal market.  As a result a private party should push for proper evaluation of any state aid elements in the proposed measures and, where appropriate, notification of state aid. 

Commission press release IP/16/2923 and Commission STATEMENT/16/2926.

CAT stays Deutsche Bahn damages claim against MasterCard

The Competition Appeal Tribunal (CAT) has put on hold a damages claim brought by companies within the Deutsche Bahn, Inditex, ASOS, Metro, AE and Hertz groups against MasterCard.

The CAT has stayed the claim until 14 days following the outcome of the preliminary issue hearing listed to be heard on 8 to19 May 2017 in the High Court in two parallel actions against MasterCard: Deutsche Bahn & ors v MasterCard Inc. & ors (Claim No. HC-2012-000196) and Enterprise Rent-A-Car v MasterCard Inc. & ors (Claim No. HC-2014-000636).

The preliminary issues relate to choice of law and limitation.  MasterCard maintains that if foreign law applies to certain elements of Deutsche Bahn’s claim, the associated foreign law limitation period has expired.  Deutsche Bahn brought a damages claim in the High Court in 2012 which followed a December 2007 European Commission infringement decision against MasterCard in relation to its cross-border multilateral interchange fees (MIF). The Commission found that MasterCard had infringed Article 101 TFEU in that the MIF arrangements restricted competition between acquiring banks and increased the costs of accepting cards without leading to efficiencies within the meaning of Article 101(3) TFEU.  On 11 September 2014, the Court of Justice dismissed the appeal challenging a General Court judgment that upheld the Commission's 2007 decision.  In October 2015 Deutsche Bahn brought a parallel claim in the CAT.

In July 2016 the CAT ruled that if a damages claim is governed by foreign substantive law, the associated foreign law limitation period applies.  This judgment has reduced the benefit of Deutsche bringing the parallel claim in the CAT as some of its claim will be time-barred should it continue in the CAT.

Case No: 1240/5/7/15, CAT order of 22 August 2016

LCD follow-on claim fights on – with territorial limitations

LCD follow-on claim fights on – with territorial limitations

The High Court has refused to dismiss a follow-on claim by monitor manufacturer Iiyama against members of the liquid crystal display (LCD) cartel but has not allowed it to claim that sales that occurred outside the EU infringed EU competition law.

The Court found that in relation to the supply chains between the parties the cartel was implemented outside the EU so fell outside the territorial scope of Article 101. The Court did observe, however, that the European Commission had found that the cartel was implemented in the EU so that there was a breach of Article 101. The question for the Court was whether the claimants could establish that they had suffered harm due to the implementation of the cartel in the EU.  It found that the claimants had pleaded an arguable case on this point, although there was not much evidence which specifically supported the plea and no doubt LG and Samsung would closely scrutinise it.

The Court also held that the claimants had an arguable case against the UK subsidiaries of one of the South Korean defendants even though they were not addressees of the European Commission’s decision.

It seems then that the focus of Iiyama’s claims was on their indirect purchases, where a supply chain could be traced back to the overcharges of the cartel members that were implemented in the EU. (UK) Ltd & Ors v Samsung Electronics Co Ltd & Ors [2016] EWHC 1980 (Ch)

Ofcom recommends part separation of Openreach and BT

Ofcom has issued a progress report recommending a partial separation of BT Group from its internet infrastructure business, Openreach.  But this measure is short of the full unbundling that BT’s competitors have been pushing for.

Ofcom began its review of digital connection capacity in March last year.  Early in 2016 it said that Openreach should be more independent from BT so as to deliver necessary investment in high-speed broadband infrastructure over the next decade.

Ofcom is seeking to open up Openreach’s ducts and poles to allow competitors to connect their own systems.

Current regulations require Openreach to allow access to all customers on non-discriminatory terms.  Ofcom believes that BT still has the ability and incentive to make investment decisions that favour its own retail operations, rather than the network as a whole.

Under the proposal Openreach would be a separate company with its own board but the size of its budget would ultimately be controlled by BT.

This semi-separation might be seen as a cautious move by Ofcom.  A full divestment would take time and create potential for market disruption.  But the proposed approach will leave many disappointed by leaving investment decisions in the hands of BT, albeit, such decisions would need to be made in the interests of all Openreach customers.  If Ofcom is not satisfied that it can hold BT accountable under the new model or roll-out, speeds and service fall short of expectations, a full separation might need to be considered.

Ofcom press release and progress update: supporting investment in ultrafast broadband networks, 26 July 2016

Google faces new and renewed EU antitrust objections

The European Commission has sent two further Statements of Objections to Google. In a supplementary Statement of Objections, the Commission has supported its preliminary conclusion that Google has abused its dominant position by systematically favouring its comparison shopping service in its search result pages.

In a separate set of objections, the Commission has set out its preliminary view that Google has abused its dominant position by artificially restricting the possibility of third party websites to display search advertisements from Google's competitors.

EU Commissioner Vestager has stated that Google has developed “incredible and innovative products” but that this does not give it the right to deny others the opportunity to innovate and compete. 

In the shopping comparison search case the Commission has rejected Google’s argument that websites such as Amazon and eBay compete with Google’s shopping service and it views these players more as customers than competitors.  Commissioner Vestager maintains that even if the Commission accepted Google’s market definition, its practices would still have restricted competition.

In the new advertising objections the Commission claims that Google has an 80 per cent share of the EEA search advertising market through its AdSense platform.  The Commission is concerned that Google has restricted how third parties obtain and use advertising from its competitors through a range of practices: requiring third parties not to source search ads from Google's competitors; requiring third parties to take a minimum number of search ads from Google and reserve the most prominent space on their search results pages to Google search ads; and requiring third parties to obtain Google's approval before making any change to the display of competing search ads.

The Commission has not provided a timeline for conclusion of these cases.

Scene set for UK’s largest opt-out collective action

MasterCard faces a £19 billion action for damages on behalf of consumers who were overcharged as a result of its interchange fees on payment transactions.  Press reports suggest that a claim is about to be brought by Quinn Emanuel in the Competition Appeal Tribunal which would be the second opt-out collective action to be brought under the UK’s new competition law damages regime introduced with effect from 1 October 2015.

The proceedings have a long administrative history dating back at least to the December 2007 European Commission infringement decision against MasterCard in relation to its cross-border multilateral interchange fees (MIF).  The Commission found that MasterCard had infringed Article 101 TFEU in that the MIF arrangements restricted competition between acquiring banks and increased the costs of accepting cards without leading to efficiencies within the meaning of Article 101(3) TFEU.  On 11 September 2014, the Court of Justice dismissed the appeal and cross-appeals challenging a General Court judgment that upheld the Commission’s original decision.

Assuming that the CAT grants a collective proceedings order, the case would test the boundaries of the new regime. The affected class is potentially extensive comprising all consumers and, conceivably, not only MasterCard holders who paid increased prices for their goods and services as a result of the practices.  This is also an indirect purchaser action for a huge sum of money. 

On paper, it appears to be just the type of case that the new regime was expected to encourage.  However, it can be expected that the case will be fiercely contested as the administrative proceedings have been.  While the trial is not expected to begin until 2018, potential claimants and class representatives in other cases will be watching developments closely.

First collective action launched in the CAT

The Competition Appeal Tribunal has published a notice of application to commence collective proceedings under the amended section 47B of the Competition Act 1998.  If the CAT decides to make a collective proceedings order (CPO) the case will be the first opt-out class action following the Consumer Rights Act reforms.  The proposed action combines follow-on damages actions relating to the 2014 mobility scooters decision of the Office of Fair Trading. 

The application is brought by the proposed class representative (Ms Dorothy Gibson), the General Secretary of the National Pensioners Convention that represents around 1000 UK pensioners’ organisations.  The relief sought is damages to be assessed on an aggregate basis.  The application states that the action should proceed on an opt-out basis as it would be highly impractical for it to proceed on an opt-in basis in view of the vulnerability of the members and the sums at stake.

The CAT may only make a CPO if it considers that the person who bought the proceedings is a person who the CAT could authorise to act as the representative and if the CAT considers that the claims raise the same, similar or related issues of fact or law and are suitable to be brought in collective proceedings.

The procedural rules governing collective proceedings are set out in Rules 73-98 of the CAT Rules, with guidance in Section 6 of the 2015 Guide to Proceedings.

Case 1257/7/7/16 - Dorothy Gibson v Pride Mobility Products Limited