Report 2011 - EFTA Court

ESA’s analysis, captive insurance companies provided commercial
services to private undertakings. Therefore, any assistance
provided to them by the state through tax exemptions had to be
viewed in that context.
30 ESA stated, moreover, that the tax provisions in question had
conferred a selective advantage upon certain undertakings.
According to ESA, qualification for a lower rate of taxation
than was normally due, or an exemption from paying taxes in
general, conferred an advantage on the eligible companies. Those
companies were granted an advantage because their operating
costs were reduced in comparison with others that were in a
similar factual and legal position. Furthermore, by exempting
shares or parts of captive insurance companies from coupon
tax, the Liechtenstein legislation also made it more attractive to
invest in captive insurance companies than in other undertakings.
investors in captive insurance companies were, therefore, granted
an advantage.
31 On ESA’s assessment, under the Liechtenstein tax provisions,
captive insurance companies received a selective advantage
compared to those entities which paid the full income, capital and
coupon taxes in Liechtenstein. in ESA’s view, the tax reductions
and exemptions accorded to captive insurance companies were
designed to attract a mobile and tax sensitive service sector to
Liechtenstein. Therefore, there was no reason to conclude that
captive insurance companies were in a different legal and factual
position to those other parties. in that regard, ESA observed that
the tax measures in question were only available and applicable
to undertakings that had sufficient resources to form a captive
insurance company. Further, ESA held that the measures could
not be justified by the logic of the tax system and that they
distorted competition.
32 in its Decision, ESA rejected the view that the measures were
existing aid. instead, it qualified those measures as new aid and
found that the Principality of Liechtenstein had not complied with
its obligations under Article 1(3) of Part i of Protocol 3 to notify.
Joined Cases E-4/10, E-6/10 and E-7/10 Principality of Liechtenstein, Reassur Aktiengesellschaft,
xxxxxxxxxxxxxxxxxxxxxxxxx
Swisscom RE Aktiengesellschaft v EFTA Surveillance Authority
Summary Judgment
CAses Case
e-xx/x
e-8/11
e-4/10
e-6/10
e-7/10
33