Report 2011 - EFTA Court

selective. Moreover, according to the applicants, the contested
Liechtenstein provisions differ from the aid scheme implemented
by Finland for captive insurance companies in the Åland
islands case, as they are not regionally specific, do not require
foreign ownership or a minimum level of economic strength or
capitalisation.
66 ESA contends that the measures in question are indeed materially
selective. in ESA’s view, the beneficiary undertakings are in the
same legal and factual situation as those which pay the full
income, capital and coupon taxes in Liechtenstein. in contrast,
captive insurance companies in Liechtenstein receive a selective
advantage. The Commission supports ESA’s assessment and
submits further that in analysing the selective character of a tax
measure, only the differences that are relevant to the objective of
the tax system in question can be taken into account. Therefore,
the elements cited by the applicants as justifying the difference
are irrelevant.
67 in the Commission’s view, the fact that the tax measures apply
to all captive insurance companies regardless of size, or that the
requirements for captive insurance companies are horizontal in
nature, is equally irrelevant. What is crucial is that other types
of companies which are in the same factual and legal situation
cannot benefit from the same tax advantages.
68 ESA also disputes the assertion made by the applicants that
creating a captive insurance company is an option open to any
undertaking. ESA notes that while it was an essential part of the
Commission’s reasoning in its decisions in the Groepsrentebox
and Hungarian Tax Scheme cases, cited by the applicants, that the
action which leads to the beneficial tax treatment is open to any
undertaking, the option of forming a captive insurance company
is not.
Findings of the Court
69 The Court recalls that the definition of aid is more general than
that of a subsidy. The concept of aid not only includes positive
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 Judgment
CAses Case
e-xx/x
e-8/11
e-4/10
e-6/10
e-7/10
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