Opinion of the Advocate General — ECLI:EU:C:2023:840
Date: 2023-11-09
Language of the case: English

summary nature, the extracts from the minutes examined by the Commission were sufficient to ‘allow the reader to understand how the company’s key decisions … were taken and recorded in [those] … minutes’. Such an assessment – which enables the Commission to understand the reasons for the importance which the General Court attached to those minutes, even if they were the only item of evidence provided during the administrative procedure relating to the functions of the head offices – is not open to criticism before the Court of Justice, except in cases of distortion, which has not been relied on by the Commission. 84. Secondly, the Commission submits that, in paragraph 304 of the judgment under appeal, the General Court imposed on it a burden of proof which was impossible to discharge. In that paragraph, as already explained, the General Court stated that ‘the fact that the minutes [examined by the Commission] do not give details of the decisions concerning the management of the Apple Group’s IP licences, of the cost-sharing agreement and of important business decisions does not mean that those decisions were not taken’. 85. In that regard, I agree with the Commission. I do not see how it is possible, as the General Court appears to do in paragraphs 305 and 306 of the judgment under appeal, to infer from the minutes of the board of directors of a company evidence in favour of the taking of decisions with a specific subject matter in the absence of express or implicit indications to that effect. On the other hand, it is instead, in my view, possible, as the Commission did in the decision at issue, to infer from such a lack of indications, and in the absence of evidence to the contrary, factors which argue in favour of the non-existence of such decisions, in particular where it appears that that company, in practice, if not by legal obligation, normally records the relevant decisions taken by its board of directors in the minutes of its meetings. In so far as it does not allow the Commission to rely on that evidence, when it comes to proving the existence of negative facts which, by their nature, cannot be demonstrated, but only deduced from presumptions based on established positive facts or by evidence of a positive fact to the contrary, paragraph 304 of the judgment under appeal imposes, in my view, an unjustifiably excessive burden of proof on the Commission. 86. Thirdly, the Commission challenges paragraph 306 of the judgment under appeal where, inter alia, the General Court states that ‘it is apparent’ from the minutes that it examined ‘that individual directors [had been] granted very wide managerial powers’. It argues that, although the minutes in question occasionally recorded the grant of delegation of powers by the board of directors, the fact remains that only one of those powers of attorney concerned the conclusion of contracts with OEMs and telecommunications operators. 87. In that regard, in so far as the Commission seeks, by that line of argument, to call into question the assessment of the probative value of the entry in the minutes of the abovementioned power of attorney, I would point out, first, that that assessment falls, in principle, within the exclusive jurisdiction of the General Court and, secondly, that no rule or principle of EU law prohibits, in principle, the General Court from relying on a single piece of evidence to establish the relevant facts. (44) The complaint must therefore, in my view, be rejected. I would point out, however, that the Commission also challenges the admissibility as evidence of the power of attorney in question, on the ground that it was not produced during the administrative procedure. In that regard, I refer to the analysis carried out in points 42 and 43 of this Opinion. As I observed there, that power of attorney, although referred to in the minutes of the meeting of the board of directors of ASI of 27 July 2011, as the Commission asserts without being challenged by ASI and AOI, has not been produced to date. It follows that the General Court can have relied only on the entry in the minutes of the grant of that power of attorney and not on the text of it. 88. Fourthly, the Commission challenges the General Court’s conclusion set out, in particular, in paragraphs 301, 306 and 307 of the judgment under appeal that ‘formal acts’ such as issuing a power of attorney for the purposes of negotiating an agreement or signing it (in the present case, the various amendments to the cost-sharing agreement made during the relevant period) constitute functions actually performed by the head offices in relation to IP licences. The Commission accepts that, in particular, the carrying out of negotiations for the conclusion of commercial contracts, such as those with OEMs and telecommunications operators, is capable of constituting ‘significant people functions’ for the purposes of the functional and factual analysis to be carried out on the basis of Section 25 of the TCA 97. However, in the present case, those functions were allegedly performed by employees of Apple Inc., on behalf of the entire Apple Group or for the benefit of ASI and AOE, not by the head offices. Those points are also allegedly vitiated by inadequate and contradictory reasoning. 89. In that regard, it should be noted that, in the overall rationale of the reasoning carried out by the General Court in paragraphs 251 to 311 of the judgment under appeal, the assessments set out in paragraphs 303 to 309 of that judgment are intended to demonstrate that the head offices of ASI and AOE – by means of resolutions adopted by their respective boards of directors and, in particular, through a system of delegation of powers issued to individual directors or to individual executives who were not members of the branches’ staff – had the ability to perform the ‘essential functions’ of those companies. That is apparent in particular from paragraph 303 of the judgment under appeal, which sets out the subject matter of the analysis carried out by the General Court, as well as from paragraphs 305 and 309 thereof, which set out the conclusion of that analysis, according to which the Commission had erred in finding, in the decision at issue, that, in the absence of employees and a physical presence, the head offices did not have the ability to perform functions on behalf of those companies. On the other hand, there is no express statement in paragraphs 303 to 309 of the judgment under appeal that the head offices were involved in the adoption of decisions relating to the management of the IP licences, with the exception of paragraph 304 – where, as seen, the General Court merely asserts, by a line of reasoning which is, in my view, open to criticism, that the absence of traces of such decisions in the minutes examined by the Commission does not mean that those decisions were not actually taken – and paragraph 307 relating to the signing of the cost-sharing agreement, which nevertheless concerns an intra-group agreement which is in principle excluded from the subject matter of the advance decisions. As regards, lastly, paragraph 301 of that judgment, it is included in the analysis devoted to the centralised way in which strategic decisions are taken within the Apple Group. 90. I am therefore not convinced that it is correct to interpret paragraphs 301, 306 and 307 of the judgment under appeal in the manner suggested by the Commission. It seems to me that, in finding that ASI’s and AOE’s directors had participated, directly or by way of power of attorney, in negotiations with OEMs and telecommunications operators or even in the conclusion of commercial contracts or intra-group agreements, the General Court did not intend to assert that the head offices had performed ‘significant people functions’ in relation to the IP licences, but, rather, to find that the decision at issue had erroneously concluded that the Apple Group’s IP was necessarily managed by the Irish branches, since the head offices did not have the ability to take decisions relating to the management of the IP licences (see, inter alia, paragraphs 302 and 309 of the judgment under appeal). 91. In those circumstances, it appears that the Commission’s argument should be rejected in so far as it is based on a misreading of the judgment under appeal. For the same reasons, the counter-arguments put forward by Ireland and ASI and AOI that the signing of the amendments to the cost-sharing agreement and the powers of attorney relating to the negotiations and conclusion of contracts with OEMs and telecommunications operators prove that decisions relating to the management of IP licences were taken by the head offices must be rejected. There is no such finding in the judgment under appeal. 92. That said, I note that the difficulty of attributing an unequivocal meaning to the findings set out in paragraphs 301 and 307 of the judgment under appeal and of clearly defining their scope is, once again, attributable to the General Court’s failure to take a position on the question of whether, and under what conditions, ‘significant people functions’ performed by the parent company on behalf or for the benefit of that company outside Ireland may be taken into account in the allocation for tax purposes of the economic ownership of property that generates profits held by a non-resident company, the chargeable profit of which in Ireland should be defined for the purposes of Section 25 of the TCA 97. In that regard, I refer to point 61 of this Opinion. 93. In fact, the analysis of the activities outside the Irish branches set out in paragraphs 296 to 309 of the judgment under appeal appears to be influenced by the premiss, which, as has been seen, is erroneous, underlying the General Court’s examination of the complaints against the Commission’s primary line of reasoning, that is to say that the latter had used an ‘exclusion’ approach. Starting from such a premiss, it was not necessary, in order to invalidate the primary line of reasoning as a whole, to demonstrate that the head offices had actually performed significant functions with regard to the IP licences, but it was sufficient to prove that they had the ability to take those decisions or, even more generally, the ability to take ‘[key company] decisions’ (paragraph 305 of the judgment under appeal) or decisions ‘concerning [the] essential functions’ of ASI and AOE (paragraph 303 of the judgment under appeal). 94. In any event, if the Court of Justice were to consider that the General Court had implicitly held, in paragraphs 301 and 307 of the judgment under appeal, that, by issuing to executives of Apple Inc. – whether or not they were members of ASI’s and AOE’s boards of directors – delegations of powers for the signing of intra-group contracts or agreements, the head offices had actually performed, with regard to the IP licences, relevant functions for the purposes of the analysis to be carried out under Section 25 of the TCA 97, I agree with the Commission that the purely formal nature of those acts and the amalgamation of functions performed by the group holding company with the functions attributable to the head offices to which such a delegation system gives rise do not support such a conclusion. 95. In the light of the foregoing, I consider that the third part of the first ground of appeal is in part admissible and well founded, as set out at the end of the examination of the individual complaints raised. 4. Conclusions on the first ground of appeal 96. On the basis of all the foregoing considerations, the first ground of appeal is, in my view, well founded. By focusing on the functions and risks assumed by Apple Inc. with regard to the Apple Group’s IP, instead of focusing solely on the activities performed by the branches and the head offices, respectively, with regard to the management and use of the IP licences, the General Court carried out a factual analysis and classification of the facts examined in the light of a different legal test from that which it itself considered applicable under Section 25 of the TCA 97, which requires the taking into account of the allocation of assets, functions and risks between the branch and the other parts of that company and, pursuant to the arm’s length principle, precludes the taking into account of the role played by separate entities. C. Second ground of appeal 97. The second ground of appeal is directed against the grounds of the judgment under appeal by which the General Court upheld the complaints raised by Ireland and ASI and AOE against the Commission’s subsidiary line of reasoning. I recall that, in the context of that reasoning, set out in recitals 325 to 360 of the decision at issue, the Commission contended that, even if it were accepted that the IP licences had to be allocated outside Ireland, the profit allocation methods endorsed in the advance decisions had nonetheless led to undervaluing the annual chargeable profits of ASI and AOE in Ireland in so far as they were based on inappropriate choices, which had produced a result departing from a reliable approximation of a market-based outcome in line with the arm’s length principle. More specifically, after finding that the advance decisions had adopted one-sided profit allocation methods similar to the transaction net margin method (‘the TNMM’) laid down by the OECD Transfer Pricing Guidelines, (45) the Commission concluded that the Irish tax authorities had endorsed three erroneous methodological choices, relating to the identification of the Irish branches as ‘tested parties’ – that is to say, as parties on whose activities the analysis carried out in the context of the selected one-sided profit allocation method focused (recitals 328 to 333 of the decision at issue) – to the choice of the operating costs as the profit level indicator (recitals 334 to 345 of the decision at issue) and to the levels of return accepted (recitals 346 to 359 of the decision at issue). 98. The second ground of appeal is divided into three parts. The first part relates to an error in the determination of the standard of proof to be applied in order to establish the existence of an advantage in the case of advance decisions relating to the allocation of profits, the second relates to a procedural irregularity and the third relates to an infringement of Article 107(1) TFEU and/or a distortion of national law. 1. First part of the second ground of appeal 99. By the first part of its second ground of appeal, directed against paragraphs 349, 416, 434 and 435 of the judgment under appeal (which refer to paragraphs 319 and 332 thereof), the Commission submits that the General Court adopted an incorrect standard of proof in considering that it was for the Commission to demonstrate that the profit allocation set out in the advance decisions had led to a reduction in ASI’s and AOE’s tax liability as compared with that which those companies would have borne under the normal rules of taxation and that the finding of methodological errors was not sufficient. (46) It submits that, when assessing, in the light of the arm’s length principle, whether an advance decision such as that at issue gives rise to an advantage for the purposes of Article 107(1) TFEU, the applicable standard of proof is the same as in the case of recourse to the market economy operator test and that, therefore, it is for the Commission only to prove the ‘plausibility’ of an advantage, while it is for the Member State concerned to demonstrate that such an advantage is justified. The Commission also refers to the judgment of 8 December 2011, France Télécom v Commission, (47) in which, apart from situations in which the private investor test is applied, the Court of Justice held that, in order to establish the existence of an advantage within the meaning of Article 107(1) TFEU, it is sufficient to provide proof that the national measure at issue is inherently capable of reducing the tax burden of the recipient undertakings. 100. ASI and AOI as well as Ireland submit that the first part of the second ground of appeal is ineffective since, even assuming that, as the Commission claims, it was for Ireland and Apple to demonstrate the absence of an advantage, the latter discharged that burden of proof by submitting ad hoc reports on the allocation of profits to the Irish branches, drawn up by their respective tax advisors, from which it was apparent that the tax base of those companies had been determined in accordance with Section 25 of the TCA 97 and the arm’s length principle (‘the ad hoc reports’). 101. In that regard, it is certainly true that, in its analysis of the levels of return accepted in the advance decisions (paragraphs 418 to 478 of the judgment under appeal), the General Court, first, confirmed the reliability of the comparability study set out in the ad hoc reports which validated ex post those returns (paragraphs 450 to 464 of the judgment under appeal) and, secondly, found that the corrected comparability analysis carried out by the Commission in recitals 353 to 356 of the decision at issue (‘the corrected comparability analysis’) was not capable of invalidating the conclusions set out in those reports (paragraphs 469 and 477 of the judgment under appeal). However, in the context of the third part of its second ground of appeal, the Commission criticised the sections of the judgment under appeal in which the General Court essentially endorsed the calculation methodology used in the ad hoc reports and found that the corrected comparability analysis was incapable of calling into question the conclusions of those reports. The question of whether the present complaint is ineffective therefore depends on the outcome of the analysis of those criticisms. 102. On the substance, ASI and AOI, as well as Ireland and the Grand Duchy of Luxembourg, submit that the Commission seeks, in essence, to obtain a reversal of the burden of proof. ASI and AOI also submit that the Commission’s complaint has no factual basis, since the General Court concluded that none of the three methodological errors found by the Commission in the decision at issue had been demonstrated. 103. I would point out that, according to settled case-law, it is for the Commission to prove the existence of ‘State aid’ within the meaning of Article 107(1) TFEU and thus also to prove that the condition of granting an advantage is fulfilled. (48) In particular, the Commission is required, in the interests of sound administration of the fundamental rules of the TFEU relating to State aid, to conduct a diligent and impartial examination of the contested measures, so that it has at its disposal, when adopting the final decision, the most complete and reliable information possible for that purpose. (49) Moreover, the Court has previously held that the Commission cannot assume that an undertaking has benefited from an advantage constituting State aid solely on the basis of a negative presumption, based on a lack of information enabling the contrary to be found, if there is no other evidence capable of positively establishing the actual existence of such an advantage. (50) Those principles also apply when the Commission applies the private operator test. It is the latter that has the burden of proving that the conditions for the application of that test have not been satisfied (51) and to assess, in the light of all relevant evidence, whether the recipient company would manifestly not have obtained comparable facilities from a private operator. (52) Therefore, even applying the private operator principle, the Commission cannot rely merely on ‘plausible’ allegations, the accuracy of which it is not required to prove. (53) With regard to the judgment in France Télécom, I would point out that it is apparent in particular from paragraph 19 of that judgment that, even though the characteristics of the tax regime at issue had not made it possible to determine in advance for each tax year the precise level of taxation for that year, it was nevertheless accepted that that regime was capable of resulting, and in fact had resulted, in the beneficiary’s liability to tax being lower than it would have been if the general law regime had been applied. 104. That said, I note that, in the present case, the finding of an advantage within the meaning of Article 107(1) TFEU, which the Commission reached at the end of its subsidiary line of reasoning, is not based on ‘a mere hypothesis, which was neither confirmed nor rebutted by the information at [its] disposal’, (54) or on mere ‘plausible assertions’, but on the finding of specific errors vitiating, according to the Commission, the profit allocation method accepted in the advance decisions and affecting the various elements of the calculation that led to the determination of ASI’s and AOE’s chargeable profits. In my view, it cannot be ruled out that, as the Commission maintains, fundamental errors in the determination of the methodology applicable to the profit allocation operation for the purposes of calculating the tax base of a non-resident company operating through a branch may necessarily lead to an undervaluation of those profits compared to an arm’s length result and are therefore inherently or manifestly capable of reducing the tax burden of that company compared with taxation regarded as normal. In such cases, the Commission may, in my view, be entitled to rely, in order to prove the existence of a selective advantage within the meaning of Article 107(1) TFEU, on proof of the existence of such an error and on the fact that the Member State concerned has failed to demonstrate that it has no effect on whether the level of profits thus calculated corresponds to an arm’s length value. (55) The General Court therefore, in my view, incorrectly assessed the standard of proof in the case of decisions such as that at issue. 105. In the present case, however, it must be noted that, following a detailed analysis, challenged by the Commission both as to the substance and from the perspective of compliance with the limits of judicial review, the General Court held that the methodological errors identified in the decision at issue had not been demonstrated and merely found, in essence, that there was no contemporaneous data justifying the choices relating to the calculation method accepted in the advance decisions. Therefore, the error with regard to the standard of proof would have no real impact on the correctness of the conclusions reached by the General Court if the complaints put forward by the Commission in the second and third parts of that plea were shown to be unfounded. It is therefore necessary to examine those complaints. 2. The second and third parts of the second ground of appeal 106. By the second part of its second ground of appeal, the Commission submits that, at several points in its analysis, the General Court relied on arguments which did not appear in the applications lodged by ASI and AOE and by Ireland, but were based on documents annexed to them – the ad hoc reports, to which the applicants had made only general references, in particular. The Commission was therefore not given the opportunity to take a position on some of the grounds which had led to the annulment of the decision at issue. Moreover, the General Court raised of its own motion some of the complaints examined. 107. Those objections will be examined in the course of the analysis relating to the complaints raised in the context of the third part of the second ground of appeal. At this stage, I would merely point out that, according to settled case-law, in order to guarantee legal certainty and the sound administration of justice, the summary of the pleas in law which must appear in the application, in accordance with Article 21 of the Statute of the Court of Justice of the European Union, applicable to the General Court by virtue of the first paragraph of Article 53 of that statute, and Article 76(d) of the Rules of Procedure of the General Court, must be sufficiently clear and precise to enable the defendant to prepare its defence and the competent court to rule on the action. (56) Whilst the body of the application may be supported and supplemented on specific points by references to extracts from documents annexed thereto, a general reference to other documents, even those annexed to the application, cannot make up for the absence of the essential arguments in law which must appear in the application. It is not for the General Court to seek and identify, in the annexes, the pleas and arguments on which it may consider the action to be based. (57) Similar requirements are called for where a submission is made in support of a plea in law raised before the General Court. (58) It follows that the applicant is required to set out in a sufficiently systematic manner the arguments relating to each plea, and the General Court cannot be obliged to reconstruct the legal structure intended to support that plea. (59) 108. By the third part of its second ground of appeal, the Commission submits that the General Court infringed Article 107(1) TFEU and/or distorted national law when, at the end of its factual analysis, it concluded that the subsidiary line of reasoning did not make it possible to establish the existence of an advantage within the meaning of that provision. In particular, the Commission challenges the General Court’s legal characterisation of the facts, which, in its view, infringes the separate entity approach and the arm’s length principle. It raises three complaints, first, alleging errors made by the General Court in the analysis relating to the choice of the Irish branches as ‘tested parties’ for the purposes of applying the selected profit allocation method (paragraphs 328 to 351 of the judgment under appeal), secondly, relating to the choice of the operating costs as the profit level indicator (paragraphs 352 to 417 of the judgment under appeal) and, thirdly, relating to the levels of return accepted (paragraphs 418 to 478 of the judgment under appeal). Ireland and ASI and AOI submit that the complaints raised in the context of that part of the second ground of appeal are inadmissible as a whole, as they seek to challenge factual and ineffective assessments, and are also unfounded. (a) The first complaint 109. By the first complaint of the third part of the second ground of appeal, directed against paragraphs 337 to 343 of the judgment under appeal, the Commission challenges, first, the classification of the functions performed by the Irish branches as ‘less complex’ for the purposes of choosing the tested party. That classification is allegedly the consequence of an incorrect assessment of those functions by reference to the Apple Group’s IP, not to the IP licences held by ASI and AOE. Since it seeks to challenge the incorrect legal classification of the functions performed by the Irish branches, that complaint is, in my view, admissible. I refer in that regard to point 39 of this Opinion. 110. As regards the substance, I would point out that, in the context of the analysis of the first ground of appeal, I have come to the conclusion that the General Court’s assertion that the Irish branches performed ‘routine’ functions with regard to the IP licences is based on a comparison between those functions and those performed by Apple Inc. with regard to the Apple Group’s IP and that, in making that comparison, the General Court infringed the arm’s length principle which, according to the findings in the judgment under appeal, governed the application of Section 25 of the TCA 97. That error also affects the assessment which led the General Court to approve the choice of the Irish branches as tested parties, as is apparent from paragraph 341 of the judgment under appeal in particular, which refers to the conclusions of the factual analysis carried out in the context of the examination of the pleas in the action against the primary line of reasoning. 111. Admittedly, as Ireland in particular submits, in paragraph 340 of the judgment under appeal, the General Court stated that, since the subsidiary line of reasoning was based on the premiss that ‘the Apple Group’s IP [had been] correctly allocated to the head offices’, the Commission could not claim, at the same time, that it was the Irish branches ‘which performed the most complex functions in relation to that IP’. However, that assertion is based on an error in logic. Although it is true that, in the context of its subsidiary line of reasoning, the Commission accepted the premiss that the IP licences had to be allocated to the head offices, that does not mean, as the General Court instead appears to hold, that the latter also took for granted that there was evidence capable of justifying such an allocation – which it disputed – and, in particular, the exercise, by the head offices, of significant people functions in relation to those licences. 112. More generally, contrary to what ASI and AOI in particular claim, the General Court did not, in any part of the grounds of the judgment under appeal relating to the choice of the Irish branches as ‘tested parties’, conclude that, in the relationship between the Irish branches and the head offices, the former were the least complex entities. (60) It is apparent from paragraphs 3.18 and 3.19 of the 2010 version of the OECD Transfer Pricing Guidelines that the choice of the party to be tested must be consistent with the functional analysis of the transaction and requires the role played respectively by the various parties involved in the transaction to be taken into consideration (see also the end of paragraph 2.59). It follows that the grounds put forward by the General Court in paragraphs 333 to 336 of the judgment under appeal and in paragraphs 342 and 343 thereof do not by themselves make it possible, in so far as they take into account only the situation of the Irish branches, to invalidate the premiss on which the Commission relied in its subsidiary line of reasoning, that is to say that the head offices, as parties to the transaction which performed the less complex functions, should have been tested. 113. Secondly, the Commission challenges paragraph 335 of the judgment under appeal, in which the General Court held that the OECD Transfer Pricing Guidelines do not necessarily require that the entity that performs the least complex functions be chosen as the party to be tested in the context of the TNMM, but merely recommend choosing the entity in respect of which there is the largest amount of reliable data. It submits that, in that paragraph, the General Court found of its own motion that there had been an error of interpretation of those OECD guidelines which had not been raised by the applicants at first instance. That argument is, in my view, based on a misinterpretation of the judgment under appeal and must therefore be rejected. Paragraph 335 of the judgment under appeal, read in the context of the reasoning set out by the General Court in paragraphs 334 to 336 of that judgment, does not specifically criticise the decision at issue, but merely gives reasons for the conclusion set out in paragraph 334 and confirmed in paragraph 336 that, ‘provided that the functions of the tested party have been correctly identified, and that the return for those functions has been correctly calculated, the fact that one party or another has been chosen as the tested party is irrelevant’. 114. Thirdly, the Commission challenges the validity of that conclusion. It submits that, contrary to what the General Court stated in paragraph 336 of the judgment under appeal, the choice of the party to be tested is a fundamental step in the application of the TNMM. That challenge is, in my view, admissible even though it is directed against the interpretation of the OECD Transfer Pricing Guidelines accepted by the General Court. I refer in that regard to the considerations set out in point 39 of this Opinion. 115. On the substance, I agree with the Commission as to the importance which, in the context of those guidelines, is attributed to the choice of the party to be tested in the event of the application of the TNMM. It is apparent from paragraphs 3.18 and 3.19 in particular of the 2010 version of those guidelines – on which the General Court in all likelihood relied in paragraph 335 of the judgment under appeal – that the possibility of conducting a comparative analysis based on reliable data, which makes it possible to identify correctly the transfer price to be allocated to the transaction at issue in accordance with the arm’s length principle, depends on that choice. The Commission is therefore right when it states that that choice is not neutral, but decisively influences the reliability of the result of the analysis carried out under the TNMM. 116. On the basis of the foregoing and within the limits set out above, I consider that the first complaint in the third part of the second ground of appeal is well founded. (b) The second complaint 117. By the second complaint of the third part of its second ground of appeal, the Commission challenges paragraphs 352 to 417 of the judgment under appeal, in which the General Court set aside the conclusions set out in the decision at issue that, even assuming that the choice of the Irish branches as tested parties was correct, the choice of taking ASI’s and AOE’s operating costs as the profit level indicator had led to chargeable profits of those companies in Ireland which did not reflect a reliable approximation of a market-based outcome in line with the arm’s length principle. (1) The choice of the operating costs as the profit level indicator for the Irish branch of ASI 118. In recitals 336 to 342 of the decision at issue, the Commission considered that the choice of the operating costs of ASI’s Irish branch as the profit level indicator did not properly reflect the risks assumed and the activities carried out by that branch and therefore its contribution to ASI’s turnover. For the same reasons, it considered that the Berry ratio, a profit level indicator based on the ratio between gross profit and operating expenses used in the ad hoc reports, did not make it possible to determine an arm’s length return for the functions performed by that branch. According to the Commission, ASI’s sales would have been a more appropriate indicator. The validity of that conclusion was rejected by the General Court in paragraphs 359 to 407 of the judgment under appeal. 119. First, the Commission submits that the General Court failed to take account of the functional analysis set out in the decision at issue when, in paragraph 360 of the judgment under appeal, it stated that the Commission had based its statements relating to the unsuitability of the operating costs to reflect the functions performed by ASI’s Irish branch on an exclusion approach. In that regard, I refer to the discussion carried out in the context of the examination of the first part of the first ground of appeal. The same error also vitiates paragraph 365 of the judgment under appeal, in which the General Court concluded that the Commission had, in essence, merely stated that ASI’s sales would have been an appropriate profit level indicator. I agree with the Commission that, in that paragraph, the General Court conducted a compartmentalised reading of the decision at issue by not taking account of the analysis set out in other parts of it, in recitals 294 to 305 in particular, which list the functions and risks which the Commission considered to have been assumed by, inter alia, ASI’s Irish branch. 120. Secondly, the Commission challenges paragraphs 366 to 372 of the judgment under appeal, in which the General Court criticised the rejection, in recital 340 of the decision at issue, of the Berry ratio as a suitable financial ratio for estimating the arm’s length remuneration in the present case. The Commission submits, first of all, that, in their respective actions, ASI and AOE as well as Ireland confined themselves on that point to mere references to the content of the ad hoc reports. An examination of the file before the General Court, including the replies to the General Court’s written questions, confirms that allegation as regards Ireland. ASI and AOE addressed the issue more substantially, while limiting their analysis to only one of the conditions required for the application of that indicator. The Commission therefore does not err in stating that the General Court’s examination of the Berry ratio is largely unconnected with the arguments raised by the applicants and discussed at first instance. 121. The Commission then puts forward a series of arguments to show that the General Court erred in law in the assessment made in paragraphs 366 to 372 of the judgment under appeal. It submits, in essence, that the General Court’s conclusion is based on an incorrect classification of ASI’s Irish branch as a routine logistical service provider without assuming any risk. ASI and AOI as well as Ireland assert that such a classification cannot be called into question at the appeal stage. That objection must, in my view, be rejected. In so far as that classification depends on the correct application of the principles laid down in the OECD Transfer Pricing Guidelines on which Apple and Ireland relied to justify ex post the advance decisions as well as the appropriateness of the operating costs as the profit level indicator of the ASI branch, the arguments raised by the Commission do not fall outside the limits of the Court’s review of the facts at the appeal stage. In that regard, I refer to point 39 of this Opinion. 122. On the substance, the arguments raised by the Commission against the General Court’s assessments relating to the application of the Berry ratio must be considered together with the complaints directed against paragraphs 375 to 407 of the judgment under appeal. In those paragraphs, the General Court, after examining the risks which, according to the Commission, had to be allocated to ASI’s Irish branch and which justified a profit level indicator of that branch based on sales and not on operating costs, concluded that none of those risks had actually been assumed by that branch. If those complaints were well founded, they would show that the General Court relied on an incorrect classification of ASI’s branch as a ‘low-risk distributor’ for the purposes of applying the OECD Transfer Pricing Guidelines. It is true that it appears to follow from paragraph 374 of the judgment under appeal that the analysis set out in paragraphs 375 to 407 of the judgment under appeal is superfluous, given the interpretation of paragraph 2.87 of the OECD Transfer Pricing Guidelines accepted by the General Court in paragraph 357 of that judgment. (61) However, the complaints put forward by the Commission are not ineffective for that reason alone. In paragraphs 357 and 364 of the judgment under appeal, the General Court acknowledges that, according to paragraph 2.87 referred to above, the ability of the profit indicator chosen to correctly reflect the value of the functions performed by the tested party depends, inter alia, on the risks assumed by it. 123. The Commission challenges, in turn, paragraphs 375 to 390 of the judgment under appeal, relating to the risk connected with turnover (recital 337 of the decision at issue, in which that risk is defined as ‘inventory risk’), paragraphs 391 to 400 of that judgment, relating to the risk connected with the warranty for Apple products (recital 338 of the decision at issue) and paragraphs 401 to 407 of that judgment, relating to the risk associated with relations with third-party contractors (recital 339 of the decision at issue). As in the context of the first ground of appeal, the Commission submits, in essence, that the General Court applied an incorrect legal test contrary to the arm’s length principle in classifying the Irish branch of ASI as a low-risk distributor by comparing the risks assumed by that branch with the risk policies of Apple Inc. 124. However, the analysis of the grounds of the judgment under appeal confirms the approach criticised by the Commission. First of all, with regard to the risk connected with turnover, the evidence referred to by the General Court in paragraphs 381, 382 and 383 of the judgment under appeal refers to the centralised conclusion by Apple Inc. of framework agreements with the OEMs and the main buyers of Apple products and to the definition, again at centralised level, of the international pricing of Apple products. Moreover, in paragraphs 385 and 386 of the judgment under appeal, the General Court concluded, on the basis of all the evidence submitted, including the ad hoc reports, that the risks inherent in products remaining unsold or a drop in demand could not be allocated to the Irish branch of ASI in so far as both supply and demand were ‘determined centrally, outside that branch’ (paragraph 386). As regards, next, the risk connected with product warranties, the conclusion reached by the General Court in paragraph 400 of the judgment under appeal that it cannot be inferred from the fact that the Irish branch of ASI managed the AppleCare service that that branch assumed the economic consequences connected with warranties for Apple products, is based on the finding that the functions performed by that branch were of an ancillary nature – a finding which, as I have already explained in point 52 of this Opinion, follows from the linking of functions performed by the latter with those performed by Apple Inc., not with those assumed by the head offices. Lastly, with regard to the risks connected with the activities of third-party contractors, I note that, in essence, the General Court merely refers to the considerations set out in paragraphs 376 to 390 of the judgment under appeal concerning the risk connected with the possibility of a decrease in demand and the possibility of unsold products, to which the risk relating to products not managed in Ireland is equated because they have been subcontracted outside that Member State. In the discussion of the first ground of appeal, to which I refer, I came to the conclusion that the allocation of profits to a non-resident company under Section 25 of the TCA 97 and the arm’s length principle which it incorporates must be limited to taking into consideration the situation of the various parties which make up that company in their relations with each other. However, in the decision at issue, the Commission, while not denying that policies relating to centralised risk management had been put in place by Apple Inc., demonstrated, without being overruled on the point by the General Court, and without limiting itself, as has been seen, to an exclusion approach, that, in relation to the head offices, the Irish branch of ASI had assumed a certain level of risk. On the other hand, as has been seen, in order to rule out the assumption by the Irish branch of ASI of the risks referred to in recitals 337, 338 and 339 of the decision at issue and to classify that branch as a ‘low-risk distributor’ whose profits could be correctly reflected by means of an indicator based on operating expenses, the General Court relied on the functions performed by Apple Inc. and on the centralised management by the latter of all the risks considered and therefore, once again, on an incorrect legal criterion. (2) The choice of the operating costs as the profit level indicator for the Irish branch of AOE 125. The Commission challenges paragraphs 408 to 412 of the judgment under appeal in which the General Court concluded that it had not succeeded in demonstrating that, as set out in recitals 343 to 345 of the decision at issue, the profit level indicator based on total costs was more appropriate for the purposes of determining the arm’s length profits for AOE’s Irish branch. 126. It submits, first of all, that neither ASI and AOE nor Ireland had raised any complaints against those recitals of the decision at issue. In addition to not being challenged, that fact is confirmed by the file before the General Court and is, moreover, consistent with the fact that, as is apparent in particular from recitals 167 and 343 of the decision at issue, the same ad hoc reports proposed an indicator based on the total costs for the AOE branch. In those circumstances, the General Court, in my view, exceeded the limits of its power of review by raising of its own motion and upholding complaints which had not been put forward by the applicants and which related to points of the decision at issue which the latter had, at least implicitly, approved. I would also point out that, according to settled case-law, it is not for the Courts of the European Union in the context of their review of complex economic assessments made by the latter in the field of State aid – such as those relating to the definition of the most appropriate profit indicator in the context of the application of the TNMM – to substitute their own economic assessment for that of the Commission. (62) That court carries out, in that context, a limited review which is necessarily confined to verifying whether the rules on procedure and on the statement of reasons have been complied with, whether the facts have been accurately stated and whether there has been any manifest error of assessment or misuse of powers. (63) In the present case, I note that, in paragraphs 409 and 410 of the judgment under appeal, the General Court noted that the OECD Transfer Pricing Guidelines on which the Commission relied in recitals 343 and 344 of the decision at issue ‘do not recommend the use of [a] particular profit level indicator, such as the total costs, and do not preclude the use of operating costs …’. Without it being necessary to take a position on the General Court’s reading of the abovementioned guidelines, which the Commission does not explicitly challenge, I would merely point out that, even assuming that that reading were correct, the mere fact that ‘it is not inconceivable, in principle, that operating costs may constitute an appropriate profit level indicator’ (paragraph 410 of the judgment under appeal) does not in itself constitute a factor on which the General Court could rely, without substituting its own discretion for that of the Commission and its own arguments for those of the parties. 127. It is certainly true that, according to the case-law just referred to, in its review of the complex economic assessments made by the Commission, the Courts of the European Union must establish not only whether the evidence relied on is factually accurate, reliable and consistent, but also whether that evidence contains all the information which must be taken into account in order to assess a complex situation and whether it is capable of substantiating the conclusions drawn from it. In the present case, at the end of its examination, the General Court did not find that there had been an error of assessment, but rather that there was insufficient evidence capable of supporting the Commission’s argument. However, that classification alone does not, in my view, make it possible to overcome the essential part of the reasoning of the General Court, which states, in essence, that one of the indicators accepted in its view by the OECD Transfer Pricing Guidelines is more appropriate than that designated by the Commission. 128. It is also true that, in paragraph 95 of the judgment in Fiat Chrysler, the Court stated that, without harmonisation in that regard, any fixing of the methods and criteria for determining an ‘arm’s length’ outcome falls within the discretion of the Member States. However, as I have already stated in point 21 of this Opinion, the present case differs from that which gave rise to that judgment. In any event, it must be held that, as the Commission submits, the General Court failed to take account of the argument which it put forward in the decision at issue and at first instance that, in view of the functions and risks actually assumed by AOE’s Irish branch, in particular when compared with those assumed by that company’s head office, the circumstance, on which the General Court relies in paragraph 411 of the judgment under appeal, that that branch did not have ownership of the raw material, semi-finished products and finished products did not in itself allow total costs to be regarded as inapplicable as a profit indicator and, in any event, did not permit the application of such an indicator, which had moreover been endorsed by Apple’s and Ireland’s advisors themselves, to be regarded as manifestly incorrect. (3) Conclusions on the second complaint 129. On the basis of all the foregoing considerations, I consider that the second complaint of the third part of the second ground of appeal is also well founded. (c) The third complaint 130. By the last complaint in the third part of the second ground of appeal, the Commission challenges paragraphs 418 to 478 of the judgment under appeal, in which the General Court set aside the reasoning which had led it to reject, in recitals 346 to 359 of the decision at issue, the levels of return of the Irish branches of ASI and AOE accepted in the advance decisions. 131. As regards the 1991 advance decision, the Commission had submitted, first, that the levels of return accepted were not justified and, secondly, that the threshold laid down for AOE, above which its chargeable profits were no longer calculated on the basis of the percentage of 65% of the operating costs of the Irish branch of that company, constituted tax relief which would have been granted on the basis of criteria unrelated to the tax system, such as employment considerations (recital 347 of the decision at issue). The General Court invalidated those assessments, in essence, on two grounds. First, in paragraphs 440 and 441 of the judgment under appeal – on the basis of its own assessment of the evidence, which cannot be called into question at the appeal stage and which, moreover, is not disputed by the Commission – the General Court considered that the circumstance that the abovementioned 65% threshold had been accepted by the Irish authorities on the basis of employment-related considerations had not been established. In paragraph 444 of the judgment under appeal, it also stated that the fact that that threshold had never been reached, and therefore the ceiling mechanism provided for in the 1991 advance decision had never been implemented, ruled out the presence of an advantage within the meaning of Article 107(1) TFEU. 132. The Commission submits that, in making that finding, the General Court erred in law by confusing the condition relating to the existence of an advantage within the meaning of that provision and the quantification of the sums to be repaid which may even be zero. It refers in support of its argument to the judgment of 13 February 2014 in Mediaset. (64) In that regard, I note that the facts of the case which gave rise to that judgment, which concerned identifying the beneficiaries of a tax aid scheme and quantifying for each of them the amount to be repaid, differ from those of the present proceedings, in which it is instead necessary to determine whether the provision, in an advance decision, of an individualised method of calculation which was never actually applied can give rise to an advantage within the meaning of Article 107(1) TFEU. At least in so far as the advantage identified by the Commission in the decision at issue corresponds to the extent of the tax relief which would have resulted from the application of the abovementioned threshold, the circumstances of the present case appear more akin to a situation in which the aid was decided upon but not paid. Therefore, it seems to me that the Commission’s argument should be rejected. 133. Secondly, in paragraphs 445 to 447 of the judgment under appeal, the General Court held, in essence, that, in so far as the Commission challenged the levels of return accepted by the Irish tax authorities as being too low for the functions performed by the Irish branches, in view of the assets and risks inherent to those functions, it had not demonstrated that the branches had performed functions of such a kind as to be remunerated by higher levels of return. The General Court refers in that regard to the conclusions set out in paragraphs 348 and 407 of the judgment under appeal. On this point, I therefore refer to the considerations already set out in the analysis of the first and second complaints of the third part of the second ground of appeal. 134. As regards the levels of return accepted in the 2007 advance decision, the Commission had first of all called into question the reliability of the comparability studies on which the ad hoc reports were based, since the companies selected by those studies were not, in its view, comparable to ASI and AOE. In paragraphs 450 to 464 of the judgment under appeal, which are not the subject of the complaint, the General Court concluded that the Commission had not succeeded in demonstrating the alleged errors. The Commission had then carried out the corrected comparability analysis referred to in point 72 of this Opinion, using the companies selected in the abovementioned ad hoc reports, and adopting as the profit level indicator, for ASI, sales and, for AOE, total costs. The General Court, while acknowledging that such an analysis would have enabled the Commission to demonstrate the existence of a selective advantage (paragraph 468 of the judgment under appeal), nevertheless rejected its validity on three grounds, all of which are challenged by the Commission. First, the General Court, referring to paragraphs 402 to 412 of the judgment under appeal, noted that the Commission had not demonstrated that the use of the operating costs as the profit level indicator was inappropriate in the present instance (paragraph 470 of the judgment under appeal). On that point, I refer to what has already been set out in the context of the examination of the second complaint of the third part of the second ground of appeal. Secondly, the General Court, referring to paragraphs 348 to 407 of the judgment under appeal, recalled that the analysis carried out by the Commission in the context of its subsidiary line of reasoning was based on the premiss that the Irish branch of ASI had performed complex functions and assumed significant risks, but that that premiss had not been demonstrated. 135. The Commission submits that the General Court misinterpreted the decision at issue and that the corrected comparability analysis was based on the premiss that ASI could not be regarded as a provider of basic logistics services, which justified taking sales as a profit level indicator, but not on the premiss that the functions performed by the latter were ‘of a complex nature and were decisive for the success of the Apple brand’ (paragraph 471 of the judgment under appeal). In that regard, it is not disputed that the corrected comparability analysis was carried out on the assumed premiss that the situation of ASI was comparable to that of the companies selected in the ad hoc reports, since it is based on the data of those companies (recital 354 of the decision at issue). While it is true that the criticisms put forward by the Commission with regard to that comparability in recital 351 of the decision at issue were based, in particular, on the ‘non-negligible’ or even ‘considerable’ nature of the risks assumed by ASI in relation to those companies, it must be acknowledged that, in so far as it uses the latter’s data, the corrected comparability report necessarily disregards those criticisms. Moreover, the Commission explicitly states, in recital 353 of the decision at issue, that the corrected comparability analysis is carried out ‘notwithstanding [the] general and specific concerns with the comparability studies carried out in the ad hoc reports’. Therefore, irrespective of any other consideration, the General Court does not, in my view, correctly interpret the decision at issue when, in paragraph 471 of the judgment under appeal, it suggests that that comparability report is based on the unsubstantiated premiss that the functions performed by ASI were ‘of a complex nature and were decisive for the success of the Apple brand’. Finally, in paragraphs 473 and 474 of the judgment under appeal, the General Court recalls the grounds already set out earlier on the basis of which it invalidated the Commission’s reasoning on the inappropriateness of the choice of sales as the profit level indicator for ASI. In that regard, I would therefore simply refer to what has already been said in the analysis of the second complaint of the third part of the second ground of appeal. 136. On the basis of all the foregoing considerations, I consider that the present complaint must also be upheld in so far as it follows from the foregoing. 3. Conclusions on the second ground of appeal 137. It is apparent from an analysis of the second and third parts of the second ground of appeal, taken together, that the General Court erred in the definition of the standard of proof incumbent on the Commission. It also appears that it made a series of errors of law in the analysis which led it to conclude that the Commission had not demonstrated the methodological errors identified in the context of its subsidiary line of reasoning. In those circumstances, the second ground of appeal must, in my view, be considered well founded in its entirety. D. Referral of the case back to the General Court 138. In accordance with Article 61 of the Statute of the Court of Justice of the European Union, if the appeal is well founded, the Court of Justice is to set aside the decision of the General Court. It may itself give final judgment in the matter, where the state of the proceedings so permits, or refer the case back to the General Court for judgment. It follows from the foregoing that the appeal is well founded and that the judgment must be set aside in its entirety. The complaints raised by Ireland and ASI and AOE at first instance, relating to the alleged ‘exclusion’ approach, must be definitively rejected. For the rest, I consider that, in the light of the errors of law committed by the General Court, which vitiate its assessments as regards both the primary line of reasoning and the subsidiary line of reasoning, the Court of Justice does not have before it the elements enabling it to give final judgment on the actions at first instance and that the cases must be referred back to the General Court, reserving the costs, so that the latter may carry out a new analysis and rule on the pleas not examined. VI. Conclusion 139. In the light of the foregoing considerations, I propose that the Court of Justice should set aside the judgment under appeal, refer the cases back to the General Court and reserve the costs. 1 Original language: Italian. 2 T‑778/16 and T‑892/16, EU:T:2020:338. 3 On State aid SA.38373 (2014/C) (ex 2014/NN) (ex 2014/CP) implemented by Ireland to Apple (OJ 2017 L 187, p. 1). 4 In recitals 49 to 52 of the decision at issue, the Commission stated that, under the Irish law applicable during the relevant period, ASI and AOE, although incorporated in Ireland and having a trade activity in that country, were not considered tax resident in Ireland, since they were directly or indirectly controlled by a company resident in the United States (Apple Inc.). However, since, beyond the Irish branches, ASI and AOE had no tax presence in the United States or elsewhere, the Commission concluded that they were ‘stateless for tax residency purposes’. 5 In the judgment under appeal, the General Court refers to those licences as ‘Apple Group IP licences’. That designation, which I will keep unchanged in the quotations from sections of the judgment under appeal, is disputed by the Commission, which considers it imprecise in that it allegedly does not reflect the fact that they are territorially limited licences conferred on ASI and AOE. 6 See, inter alia, judgment of 8 November 2022, Fiat Chrysler Finance Europe v Commission (C‑885/19 P and C‑898/19 P, EU:C:2022:859, paragraph 68; ‘the judgment in Fiat Chrysler’). 7 July 2010, OECD Publishing, Paris, https://doi.org/10.1787/20769717 (‘the OECD Transfer Pricing Guidelines’). 8 In recitals 87 to 89 of the decision at issue, the Commission explained that the authorised OECD approach consists of a two-step analysis according to which income is allocated to a permanent establishment. The first step of that approach is to hypothesise the permanent establishment as a distinct and separate enterprise ‘engaged in the same or similar activities under the same or similar conditions, taking into account the functions performed, assets used and risks assumed by the enterprise through the permanent establishment and through the other parts of the enterprise’. It is in this context that the notion of ‘significant people functions’ is introduced. Under the first step, the authorised OECD approach allocates to the permanent establishment the economic ownership of assets for which the significant functions relevant thereto are performed by people in the permanent establishment. Under the second step, the OECD Transfer Pricing Guidelines are applied by analogy to the permanent establishment’s dealings with other parts of the company to ensure that the performance of all of its functions in relation to those dealings is rewarded on an arm’s length basis. 9 Before the General Court and at the hearing before the Court of Justice, the Commission assessed the tax actually paid on ASI’s and AOE’s profit at 1% in 2003 and 0.005% in 2004. ASI and AOE argue that the profits of those companies during the relevant period were subject to deferred tax in the United States on foreign income. 10 See judgment of 27 April 2023, Casa Regina Apostolorum della Pia Società delle Figlie di San Paolo v Commission (C‑492/21 P, EU:C:2023:354, paragraph 106). 11 See judgment of 22 June 2023, Gmina Miasto Gdynia and Port Lotniczy Gdynia-Kosakowo v Commission (C‑163/22 P, EU:C:2023:515, paragraph 99). 12 C‑164/98 P, EU:C:2000:48 (‘the judgment in DIR International’). 13 C‑486/15 P, EU:C:2016:912 (‘the judgment in Commission v France and Orange’). 14 See judgment in DIR International, paragraph 42. 15 See judgment in DIR International, paragraph 48. 16 See judgment of 22 December 2008, British Aggregates v Commission (C‑487/06 P, EU:C:2008:757, paragraphs 142 to 144). See also judgment of 6 October 2021, World Duty Free Group and Spain v Commission (C‑51/19 P and C‑64/19 P, EU:C:2021:793, paragraphs 70 to 79). 17 C‑167/19 P and C‑171/19 P, EU:C:2022:176, paragraph 47. See also judgment of 11 March 2020, Commission v Gmina Miasto Gdynia and Port Lotniczy Gdynia Kosakowo (C‑56/18 P, EU:C:2020:192, paragraph 121). 18 See also, implicitly, judgments of 20 September 2017, Commission v Frucona Košice (C‑300/16 P, EU:C:2017:706, paragraphs 35 to 37); of 14 November 2019, Silec Cable and General Cable v Commission (C‑599/18 P, EU:C:2019:966, paragraph 82); and of 31 January 2019, Pandalis v EUIPO (C‑194/17 P, EU:C:2019:80, 102 to 109); and order of 7 September 2017, Natural Instinct v M. I. Industries (C‑218/17 P, EU:C:2017:655, paragraph 4). 19 See judgment of 27 April 2023, Fondazione Cassa di Risparmio di Pesaro and Others v Commission (C‑549/21 P, EU:C:2023:340, paragraph 80 and the case-law cited). 20 See, in particular, paragraphs 73 and 74 and 96 to 105 of the judgment in Fiat Chrysler. 21 In accordance with the authorised OECD approach, the aim of the analysis in the first step is to identify the assets, functions and risks that must be allocated to the permanent establishment of a company. 22 A similar line of argument is set out in recitals 290 and 323 of the decision at issue, while a more general reference to the lack of physical presence and personnel of the head offices appears in numerous recitals and in the title of Section 8.2.2.2(b) of that decision. 23 C‑214/12 P, C‑215/12 P and C‑223/12 P, EU:C:2013:682, paragraph 112. 24 C‑203/16 P, EU:C:2018:505, paragraphs 77 to 81. 25 See, to that effect, judgment of 8 June 2023, Severstal and NLMK v Commission (C‑747/21 P and C‑748/21 P, EU:C:2023:459, paragraphs 45 and 46 and the case-law cited). 26 See judgment of 2 March 2021, Commission v Italy and Others (C‑425/19 P, EU:C:2021:154, paragraph 53). 27 See judgment in Andres, paragraph 78. 28 Judgment in Fiat Chrysler, paragraph 85. 29 According to settled case-law, the determination of the reference framework must follow from an objective examination ‘of the content, the structure and the specific effects of the applicable rules under the national law’ of the Member State concerned (see judgment in Fiat Chrysler, paragraph 72 and the case-law cited). 30 See, to that effect, Opinion of Advocate General Kokott in Commission v Luxembourg and Others (C‑457/21 P, EU:C:2023:466, point 88). 31 It is apparent from the file that these are, in particular, powers of attorney issued to the CEO and to the vice-president of Apple Inc. 32 See judgment of 2 September 2010, Commission v Scott (C‑290/07 P, EU:C:2010:480, paragraph 91 and the case-law cited). 33 C‑300/16 P, EU:C:2017:706, paragraph 71 (‘the judgment in Commission v Frucona Košice’). 34 See also judgment of 29 June 2023, TUIfly v Commission (C‑763/21 P, EU:C:2023:528, paragraph 47). 35 ASI and AOI merely assert that they provided the Commission with the minutes of the meeting of the board of directors of ASI of 27 July 2011 in which the power of attorney in question is referred to, but do not comment on the Commission’s assertion that the text of that power of attorney (which from the minutes appear to be included as an annex to those minutes) was never produced. 36 The observations of 14 April 2015, to which ASI and AOI also referred, merely assert that the terms of the contracts with OEMs and telecommunications operators are defined centrally by executives in Cupertino and that, prior to 2013, executives in the United States signed those contracts on behalf of ASI on the basis of the power of attorney. They also state that, once formalised, those contracts were performed by ASI’s Irish branch through the issuance of purchase orders. Similarly, Ireland’s observations of 29 January 2016 merely assert that the contracts with OEMs are signed and performed by executives of ASI. Before the General Court, ASI and AOE produced a document explaining the arrangements for the joint (Apple Inc. and ASI) negotiation and signature of the contracts with the OEMs. They also produced one of those contracts which bore, for ASI, the signature of an employee of Apple Inc., designated director of ASI for the reference financial year. 37 Paragraph 1.42 of the transfer pricing guidelines specifies that the functional analysis seeks to ‘identify and compare the economically significant activities and responsibilities undertaken, assets used and risks assumed by the parties to the transactions’. 38 [1988] I.R. 10 note 4507 (‘the judgment in Dataproducts’). 39 Exhibit B to the cost-sharing agreement, as amended in 2009, included two tables concerning the relevant functions relating to intangible property subject to the agreement and the related risks. Each of those functions and risks had an ‘x’ next to it in the columns for, respectively, Apple Inc. (identified as ‘Apple’) and ASI and AOE (identified collectively as ‘International Participants’), except for IP Registration and Defence, which was associated solely with Apple Inc. (see paragraph 260 of the judgment under appeal). 40 While it is true that, in paragraph 269 of the judgment under appeal, it is stated that quality control could even be outsourced through agreements with third-party manufacturers, there are no further indications in the judgment under appeal as to the existence of such agreements concluded by ASI and AOE. 41 Without being challenged on that point by ASI and AOI, the Commission stated that the ‘Executive Team’ and the Chief Executive Officer of the group to which the General Court refers are the executives and the CEO of Apple Inc., respectively. 42 In its appeal, the Commission begins by asserting that the issue at the heart of the appeal specifically concerns the legality of the General Court’s taking into account of the functions performed by Apple Inc. 43 See judgment of 22 June 2023, Gmina Miasto Gdynia and Port Lotniczy Gdynia-Kosakowo v Commission (C‑163/22 P, EU:C:2023:515, paragraph 85). 44 See order of 11 September 2019, Camomilla v EUIPO (C‑68/19 P, EU:C:2019:711, paragraph 10 and the case-law cited). 45 The TNMM, described in paragraph 2.58 et seq. of the OECD Transfer Pricing Guidelines, examines the net profit relative to an appropriate base (for example, costs, sales, assets) that a taxpayer realises from a controlled transaction. This applies to only one of the companies involved in the transaction: the ‘tested’ party. 46 I note that the General Court set out the same standard of proof in the judgment of 24 September 2019, Netherlands and Others v Commission (T‑760/15 and T‑636/16, EU:T:2019:669). 47 C‑81/10 P, EU:C:2011:811, ‘the judgment in France Télécom’, paragraphs 24 to 27. 48 See judgment of 4 March 2021, Commission v Fútbol Club Barcelona (C‑362/19 P, EU:C:2021:169, paragraph 62). 49 See judgment of 11 November 2021, Autostrada Wielkopolska v Commission and Poland (C‑933/19 P, EU:C:2021:905, paragraph 114 and the case-law cited). 50 See judgment of 17 September 2009, Commission v MTU Friedrichshafen (C‑520/07 P, EU:C:2009:557, paragraphs 55 and 58). 51 See judgment of 11 November 2021, Autostrada Wielkopolska v Commission and Poland (C‑933/19 P, EU:C:2021:905, paragraph 108 and the case-law cited). 52 See, to that effect, judgment of 29 June 2023, TUIfly v Commission (C‑763/21 P, EU:C:2023:528, paragraph 79 and the case-law cited). 53 See, to that effect, judgment of 7 May 2020, BTB Holding Investments and Duferco Participations Holding v Commission (C‑148/19 P, EU:C:2020:354, paragraph 53). 54 See judgment of 17 September 2009, Commission v MTU Friedrichshafen (C‑520/07 P, EU:C:2009:557, paragraph 52). 55 Interpreting, to that effect, paragraph 211 of the judgment of 24 September 2019, Netherlands v Commission (T‑760/15, EU:T:2019:669), see judgment of 12 May 2021, Luxembourg and Amazon v Commission (T‑816/17 and T‑318/18, EU:T:2021:252, paragraphs 309 to 311). The latter judgment has been appealed by the Commission in Case C‑457/21 P, currently under deliberation. 56 See, to that effect, judgment of 11 September 2014, MasterCard and Others v Commission (C‑382/12 P, EU:C:2014:2201, paragraph 41). 57 See, to that effect, judgment of 16 March 2023, GABO:mi v Commission (C‑696/21 P, EU:C:2023:217, paragraphs 47 and 48 and the case-law cited). 58 See judgment of 11 September 2014, MasterCard and Others v Commission (C‑382/12 P, EU:C:2014:2201, paragraph 41). 59 See, to that effect, judgment of 16 March 2023, GABO:mi v Commission (C‑696/21 P, EU:C:2023:217, paragraph 49 and the case-law cited). 60 Paragraphs 342, 343 and 371, to which ASI and AOI refer, merely emphasise the ‘non-complex and easily identifiable nature’ of the functions performed by the Irish branches, but do not make any comparison with those performed by the head offices. 61 In paragraph 357 of the judgment under appeal, the General Court finds that it follows from paragraph 2.87 of the Transfer Pricing Guidelines that ‘the choice of profit level indicator is not fixed for any type of function, provided that that indicator reflects the value of the function in question’ and that, accordingly, ‘both sales and operating costs may constitute an appropriate profit level indicator under those guidelines’ (see paragraph 363 of the judgment under appeal, which refers to paragraph 357 thereof). 62 See, to that effect, judgment of 29 June 2023, TUIfly v Commission (C‑763/21 P, EU:C:2023:528, paragraph 76 and the case-law cited). 63 See judgment of 7 May 2020, BTB Holding Investments and Duferco Participations Holding v Commission (C‑148/19 P, EU:C:2020:354, paragraph 56 and the case-law cited). 64 C‑69/13, EU:C:2014:71, paragraphs 36 and 37. See, to that effect and in similar circumstances, judgment of 15 September 2022, Fossil (Gibraltar) (C‑705/20, EU:C:2022:680, paragraph 41).