Report 2011 - EFTA Court

– Swisscom, represented by Dr Michael Sánchez Rydelski,
Rechtsanwalt;
– ESA, represented by Xavier Lewis, Director, and Bjørnar
Alterskjær, Deputy Director, Department of Legal & Executive
Affairs, acting as Agents.
42. Pursuant to Article 20 of the Statute of the Court and Article
97 of the Rules of Procedure, written observations have been
received from:
– the Kingdom of Norway, represented by Pål Wennerås,
Advocate, Office of the Attorney General (Civil Affairs) and
Mads Tollefsen, Adviser, Ministry of Foreign Affairs, acting as
Agents;
– the European Commission (“the Commission”), represented
by Richard Lyal, legal advisor, and Carlos Urraca Caviedes,
member of its Legal Service, acting as Agents.
VI SUMMARy OF THE PLEAS IN LAw AND ARGUMENTS
43. The Principality of Liechtenstein, Reassur and Swisscom, the
applicants in cases E-4/10, E-6/10 and E-7/10, firstly plead that
ESA did not apply Article 61(1) EEA correctly against captive
insurance companies. They jointly argue that the contested
tax provisions do not distort competition by favouring certain
undertakings or the protection of certain goods under Article
61(1) EEA. in this regard, it is submitted that captive insurance
companies do not qualify as “undertakings” within the meaning
of Article 61(1) and that the contested tax measures do not
confer a selective advantage. The applicants further argue that the
tax measures have no effect on intra-EEA trade and that they do
not distort competition under Article 61(1).
44. Secondly, the applicants claim that ESA erred in classifying its
measures, in its order for recovery of the aid, as “existing aid”
within the meaning of Article 1 (b) (v) Part ii of Protocol 3 SCA.
They contend that by its Decision, ESA has violated the principles
of legitimate expectations, legal certainty and of homogeneity
and equal treatment, all general principles of EEA law. it is also
Joined Cases E-4/10, E-6/10 and E-7/10 Principality of Liechtenstein, Reassur Aktiengesellschaft,
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Swisscom RE Aktiengesellschaft v EFTA Surveillance Authority
Summary Report
CAses Case
e-xx/x
e-4/10
e-6/10
e-7/10
93