Report 2011 - EFTA Court

contended that the Decision lacks reasoning and does therefore
not accord with Article 16 SCA.
Assessment under Article 61(1) EEA
The definition of “undertaking” within the meaning of Article
61(1)
45. in response to the argument that ESA applied Article 61(1) EEA
erroneously, the applicants claim that the contested provisions
of the Liechtenstein Tax Act do not constitute State aid within the
meaning of Article 61(1) EEA.
46. Firstly, the applicants contest ESA’s finding that captive insurance
companies qualify as undertakings within the meaning of Article
61(1). in this regard, it is submitted that captive insurance
companies are not active on the free insurance market, as they
only provide in-house services. The applicants argue that these
companies insure risks for which coverage on the free insurance
market does not always exist. Swisscom submits that two risk
groups it is covering cannot be insured on the open market.
To this effect, Swisscom submitted to ESA during the formal
investigation a confirmation from Swiss Re. Secondly, only
operations which are available on the free and open insurance
market can be classified as an economic activity which confers
the status of undertaking in the sense of Article 61(1) EEA,
captive insurance companies do not qualify as “undertakings”
within the meaning of that Article. 5 in this regard the Principality
of Liechtenstein submits that an entity which does not exercise
its activity on a market in competition with other market players
cannot be considered to carry out an economic activity within the
meaning of the competition rules. The applicants also contend
5 As to the definition of “undertaking” and “economic activity” the Principality of
Liechtenstein and Swisscom refer to Case C-35/96 Commission v Italian Republic [1998]
ECR i-3851 and to Case C-222/04 Cassa di Risparmio di Firenze and Others [2006] ECR
i-289.
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