The preferential treatment granted by Ireland effectively configures as state aid, a practice which is not only incompatible with the internal market principles of free competition and non-discrimination, but also unethical.
The Commission’s pronouncement epitomizes an appropriate response to Ireland’s ad hoc corporate tax break regime, specifically tailored for Apple. Margrethe Vestager’s clampdown outlines as an arithmetic operation designated to determine the tax amount Apple should have deposited with the Irish fiscal authorities in absence of such tax allowance.
Under such tax arrangement envisioning a 0.005% (instead of 12%) tax rate, CEO Tim Cook’s multinational technology company channeled its non-US sales towards its Irish subsidiaries – artificial corporate entities absolving the mere function of fiscal addresses without effectively generating the profit otherwise declared. Such corporate governance structure and transfer pricing practice, allowed the Cupertino-based enterprise to make visible some activities in countries other than those where value was effectively produced, thus sidestepping ordinary taxation in relation to the real incomes and royalties for the period 2003-2014.
The well-founded claim has been advanced that Apple Irish subsidiaries provide something like 6 000 job posts in Ireland, a source of income those employees would not otherwise receive. Nonetheless, the observation that an economic activity provides a source of individual and short-term payments for a more or less wide segment of the local population, must not transcend from questions of justice nor derail attention away from the fact that a state is effectively accommodating a multinational business in exchange for boosting employment and foreign direct investments (FDIs) in the marketplace.
The Irish tax ruling towards Apple configures as a distortion of a just labour market, in that it perpetuates a situation which deprives the democratic state of collecting the taxes that should be devoted to public spending, to aggregate wealth distribution and to service provision. This is even more salient if one considers that the Irish state granted Apple a fiscal preferential treatment at a time when the economy of the ex-Celtic Tiger was in particularly bad shape.
As a corollary, the argument that Ireland is not willing to cash in the €13bn so to persist in its domestic development strategy of attracting colossal FDIs of multinationals via low taxation, is not defensible nor relevant. In fact, Ireland must demand that money. On the basis of the observations on a state’s societal functions exposed above, what should be surprising is not the Commission’s clampdown to claw taxes back, but rather the tax allowance granted by the Irish state to Apple itself.
Rather than addressing such ethical considerations, the temptation has proved high amid media reactions to appeal to quantitative considerations, with analysts unable to refrain from pinpointing that €13bn constitutes a trivial and derisory amount of money in the eyes of the US giant. Yet the debate here is not how disruptive it is for the giant Apple to pay something like €13bn, how contentious it is for Ireland to cash in the payment, nor how bold the Commission’s deliberation is. The latter, despite being essentially unprecedented for its range – €13bn is the largest tax liability judgement handed down by EU’s competition division so far – is novel neither in the problem it addresses, nor in the principle it invokes. Analogous cases were dealt with by the Commission vis-à-vis Starbucks in the Netherlands as well as Fiat Finance and Trade and Amazon in Luxembourg already in 2014 and 2015. Hence, mediatic reactions must not be overheated nor indulge in adversarial and polemic connotations related to the European Commission’s injunction issued against Apple. They should be scaled down to a judicial and corporate governance perspective, more apt to tackle structural problematics as to where and how to tax multinationals – by their very nature multi-territorial if not extra-territorial.
Having said this, the record-breaking compass of the tax bill ordered by the Commission is undeniably considerable and undoubtedly rife with political repercussions. The tussle around the Cupertino-based company, coupled with the sanctions hitting Google and the blow suffered by TTIP negotiations, adds up to increasingly deteriorating transatlantic relations between Brussels and Washington.
On the EU side, Vestager’s manoeuvre might imply that the Commission is willing to expand Brussels’ reach into Member States’ internal taxation policies. It might set a precedent triggering investigations of other multinationals and other Member States which implement similar corporate tax schemes of low taxation, such as the already mentioned Luxembourg and the Netherlands. The Commission has recently re-launched its proposal for a Common Consolidated Corporate Tax Base which would homogenize the treatment of enterprises’ profits in Member States and introduce an algorithm to calculate the percentage tax rates of return on investments (while leaving Member States a certain margin of manoeuvre to set tax rates).16 comments