Report 2011 - EFTA Court

undertaking owned either by an undertaking in the financial
sector other than an insurance undertaking or a group of
insurance undertakings within the meaning of Article 7 or
by an undertaking not in the financial sector, the purpose of
which is to provide reinsurance cover exclusively for the risks
of the undertaking or undertakings to which it belongs or of
an undertaking or undertakings of the group of which it is a
member”. Article 6(1) of the same Act stipulates that selfinsurance
(captive) may be provided as direct insurance or
reinsurance. Under Article 6(2), insurance companies may provide
both self-insurance and insurance of third parties. According to
Article 6(3), supervision may be exempt on an individual basis, in
accordance with Article 2(2) of the Act.
21 Articles 17 and 28m of the Ordinance on the insurance
Supervision Act (verordnung zum Gesetz betreffend die Aufsicht
über versicherungsunternehmen) set out minimum requirements
for the capital of captive insurance companies. According to
Article 17(2) of the Ordinance, the minimum guarantee fund
for captive insurance undertakings must amount to EUR 2.3
million. if the insurance undertaking covers all or some of the
risks included in insurance classes 10 to 15, then the minimum
guarantee fund must amount to EUR 3.5 million. According to
Article 28m(2), if the captive insurance company in question
is a captive reinsurance undertaking, the minimum guarantee
fund must amount to EUR 3.2 million. Under the same Article,
the supervisory authority may, in the case of captive reinsurance
undertakings, permit a reduction of the minimum guarantee fund
to an amount of EUR 1.1 million.
III FACTS AND PRE-LITIGATION PROCEDURE
22 By a letter of 14 March 2007, ESA requested certain information
from the Liechtenstein authorities concerning various tax
derogations for particular forms of companies under the Tax
Act in order to assess the compatibility of those tax rules with
the State aid provisions of the EEA Agreement, in particular
Article 61 thereof. in the letter, the Liechtenstein authorities
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