Report 2011 - EFTA Court

73 in this regard, it has to be examined whether the Liechtenstein
tax provisions are selective in their nature by exempting captive
insurance companies in full or in part from the duty to pay certain
taxes. if necessary, it must also be examined whether those
measures can be justified by the nature and overall structure of
the Liechtenstein tax system, as the Principality of Liechtenstein
submits.
74 The assessment whether tax provisions “favour certain undertakings
or the production of certain goods” under a particular statutory
scheme must be conducted on the basis of a comparison
with other undertakings which are in a comparable legal and
factual situation in the light of the objective pursued by the
measure in question (compare, to that effect, Cases C-308/01
GIL Insurance and Others [2004] ECR i-4777, paragraph 68,
and C-172/03 Heiser [2005] ECR i-1627, paragraph 40). in
the case of tax measures, the determination of the reference
framework has particular importance for this assessment, since
the very existence of an advantage may be established only when
compared with “normal” taxation, i.e. the tax rate in force in the
geographical area constituting the reference framework (compare
Case C-88/03 Portugal v Commission [2006] ECR i-7115,
paragraph 56).
75 The contested Decision concerns the tax provisions which the
Liechtenstein authorities implemented in favour of captive insurance
companies and the effect of these provisions during the period 6
November 2001 to 31 December 2009. Under those provisions,
captive insurance companies were fully exempt from the payment
of income and coupon tax, and partially from the payment of
capital tax.
76 The tax provisions in question accorded an economic advantage
to undertakings active in the captive insurance sector, relieving
them from some of the costs which they would otherwise have
incurred. They did not benefit undertakings in any other economic
sector. Rather, they applied exclusively to the insurance sector,
benefitting only those companies which conducted captive
insurance operations on behalf of their parent company or
companies.
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
45