Report 2011 - EFTA Court

Landsorganisasjonen i Norge [2002] EFTA Ct. Rep. 114, paragraph
62, and E-5/07 Private Barnehagers Landsforbund [2008] EFTA Ct.
Rep. 62, paragraph 78).
54 According to settled case-law of the ECJ, any activity consisting
in offering goods or services on a given market is an “economic
activity” (compare, in particular, Case 118/85 Commission v
Italy [1987] ECR 2599, paragraph 7, Joined Cases C-180/98 to
C-184/98 Pavlov and Others [2000] ECR i-6451, paragraph 75,
and Case C-49/07 MOTOE [2008] ECR i-4863, paragraph 22).
55 in the contested Decision, ESA found that providing insurance was
a service, which, in principle, was an economic activity, and that
captive insurance companies offered such services for a premium
on a given market. in ESA’s view, the fact that captive insurance
companies met demand for insurance from certain undertakings
was sufficient to conclude that they offered their services on a
market. By establishing a captive, the insurance of those risks
was, according to ESA, “captive” to one company of the group,
which meant that other insurance companies active in the market
could not compete for that insurance.
56 As regards the arguments of the applicants relating to the activity
of captive insurance companies in the free insurance market,
from the documents submitted to the Court, it is impossible to
conclude that the facts on which ESA based its findings were
inaccurately stated or that there has been any manifest error of
assessment or a misuse of powers in this regard. On the contrary,
it is apparent from the case-file that captive insurance companies
are, at least to some extent, exercising economic activities on the
market, even if some of their services are not available, or not
available at a reasonable price, on the insurance market.
57 With respect to the applicants’ arguments regarding the
availability of commercial insurance for the risks insured and
the absence of an activity on a market in competition with other
market players, it should be borne in mind that, as the present
case concerns a State aid scheme, it was legitimate for ESA
to confine itself to examining the general characteristics of
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