Appeal of Apple tax ruling could take six or more years

As Taoiseach Enda Kenny struggles to win Cabinet approval to appeal against the European Commission's order that Ireland recoup €13 billion of unpaid taxes from Apple, any case may need to be championed by successive governments, as it drags on for years.

Ireland has a period of two months and 10 days from Tuesday to lodge an initial appeal in Europe.

While Kenny failed on Wednesday to persuade Cabinet to back an appeal, he’s hoping to win over wavering Independent Ministers today – though they are likely insist the Dáil is recalled early from recess to vote on the matter.

In the event a decision to appeal is made, the State will need the stomach for legal action that may take up to six years, or even longer, according to Marco Hickey, head of LK Shields Solicitors' EU competition and regulated markets unit.

In the first instance, an appeal, most likely by the Department of Finance, would be made to the General Court in Luxembourg. Apple is also entitled to lodge an appeal. A case before this court typically takes 24-36 months, according to Hickey.

Judge rapporteur

The General Court is composed of at least one judge from each of the 28 EU member states. While it is legally possible for a judgment to be delivered by the full court, most cases have a limited chamber of three to five judges.

“One of the judges is appointed ‘judge rapporteur’ by the chamber and he or she will be mainly responsible for the case, notably for the drafting of the report for the hearing or the judgment,” Hickey said.

Cases before the General Court are mainly conducted in written form. It would start off with the Government’s appeal application, followed by the commission’s reply, prepared and sent by its legal service with the assistance of the EU directorate general for competition. The General Court tries to limit the number of written pleadings to avoid a case being bogged down by multiple rounds of replies, according to Hickey.

The second stage usually involves an oral hearing. A few weeks before this, the “judge rapporteur” drafts a summary of the parties’ arguments.

Pleadings presentation

“The court may also send written questions to the parties, to be replied to in writing in advance of the hearing, or orally at the hearing,” says Hickey.

During the hearing, each party is usually given 15-30 minutes to present their pleadings.

They may then be asked a series of questions by the judges, which can be very detailed.

The judges then deliberate the case based on a draft judgment prepared by the “judge rapporteur” and deliver their ruling in open court.

It typically takes 24-36 months, sometimes longer, before a case has been through the General Court, according to Hickey.

Judgments of the General Court can be challenged, either in part or in whole, before the Court of Justice of the European Union (ECJ), the EU’s supreme court, by any unsuccessful party.

This also usually takes up to three years, according to Hickey.

ECJ cases are generally dealt with by five judges and involve an “advocate general” in addition to a “judge rapporteur” being assigned.

In line with General Court cases, ECJ procedures involve a written and oral, or public hearing, stage.

However, the court can also ask the “advocate general” to prepare an official opinion on the case, which is published some weeks before the hearing.

While advocate general opinions are not binding, they are often in practice followed by the court.