Report 2011 - EFTA Court

that ESA’s findings in this regard are not compatible with its own
decision practice. 6
47. ESA, supported by the Commission, contests that argument.
in the view of ESA and the Commission the concept of
“undertaking” has been defined in the case-law of the Court
of Justice of the European Union (“the ECJ”) as “every entity
engaged in an economic activity regardless of the legal status
of the entity and the way in which it is financed.” 7 ESA submits
that in this respect, “economic activity” is the definitive factor in
determining whether an entity is an “undertaking”. Further, there
is settled case-law, that “economic activity” means “any activity
consisting in offering goods and services on a given market”, 8
which thus presupposes the assumption of risk for the purpose of
remuneration. 9
48. Concerning the submissions that the insurance services in
question are only provided in-house, ESA, with the support of the
Commission, contends that there is an important distinction to
be made between activities that are truly carried in-house, i.e. by
a department within company and services which are provided by
a separate legal person, even if it is wholly owned by the recipient
of the services. in the latter case, the companies concerned have
established a formal structure in which risk is transferred to a
company within the group, which provides insurance services
for arm’s length remuneration as an alternative to purchasing
insurance on the open market. it is maintained that this is in part
done in order to ensure that the economic activity concerned
and the profit are treated differently for tax purposes and that
6 Reference is made to EFTA Surveillance Authority Decision No 349/07/COL of 18 July
2007 concerning the Norwegian Road Administration Møre and Romsdal District Office, OJ
2007 C 310/07, p. 30.
7 The EFTA Surveillance Authority and the Commission refer to Case C-41/90 Klaus Höfner
[1991] ECR i-1979, paragraph 21. The Commission also refers to C-35/96 Commission v
Italy, cited above, paragraph 36.
8 Reference is made to C-35/96 Commission v Italy, cited above, paragraph 36; Joined Cases
C-180/98 to C-184/98 Pavel Pavlov and Others [2000] ECR i-6451, Cassa di Risparmio di
Firenze and Others, cited above, paragraph 108.
9 The EFTA Surveillance Authority refers to Joined Cases C-180/98 to C-184/98 Pavel
Pavlov and Others [2000] ECR i-6451, and C-475/99 Ambulanz Glöckner [2001] ECR
i-8089.
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
95