Report 2011 - EFTA Court

etween situations that are legally and factually comparable in
light of objectives set by the tax system. in Swisscom’s view,
the fact that undertakings are treated differently does not
automatically imply that they are favoured for the purposes of the
State aid assessment. Therefore, in order to determine whether a
measure is selective, it has to be examined, within the context of
the particular national system, whether the measure constitutes
an advantage for certain undertakings in comparison with others
that are in a comparable legal and factual situation.
63 The applicants claim that since captive insurance companies
are legally and factually in a different situation to insurance
companies that are unrelated, the Liechtenstein tax scheme
is not selective. They also maintain that, for those purposes,
captive insurance companies have to be distinguished from other
companies on account of their intra-group relations.
64 in that regard, the Principality of Liechtenstein argues that the
reasoning in the Commission’s decisions in the Groepsrentebox
and Hungarian Tax Scheme cases applies equally to the taxation
of captive insurance companies under the Tax Act, as there is no
reason why intra-group insurance transactions should be taxed
differently from intra-group financial credit or debt transactions.
Additionally, Reassur submits that as regards the types of risks
covered, choice of risks and entities to be insured the position
of captive insurance companies differs sufficiently from other
insurance companies to justify the difference in regulatory
framework.
65 The applicants also submit that the Liechtenstein tax measures
apply to all captive insurance companies regardless of their size.
Therefore, any legal entity, irrespective of the sector of activity
or size of operation, can qualify for the tax measures through
ownership of a captive insurance company through which it
insures its own risks. The Liechtenstein tax measures are not
materially selective, as they merely reflect the reality of group
structures. According to the Principality of Liechtenstein and
Reassur, the Commission has recognised the “economic reality
of group structures” as insufficient to categorise a tax measure
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