Report 2011 - EFTA Court

119 Accordingly, the question whether a State measure qualifies as
existing aid or as new aid must be resolved without reference to
the time which has elapsed since the measure was introduced
and independently of any previous administrative practice of
ESA.
120 in the case at hand, the contested provisions were introduced into
the Tax Act in 1997, with effect from 1 January 1998. Therefore,
they were enacted after Liechtenstein’s accession to the EEA
Agreement. Consequently, the measures cannot be regarded as
“existing aid” within the meaning of Article 1(b)(i) of Part ii of
Protocol 3.
121 The applicants refer to the Commission’s practice regarding
the taxation of intra-group activities in the Belgian Co-ordination
Centres cases and the judgment of the General Court in Joined
Cases T-50/06, T-56/06, T-60/06, T-62/06 and T-69/06 Ireland
and Others v Commission [2007] ECR ii-172. However, the factual
and legal situation in those cases differs considerably from the
one in the present case. Therefore, those rulings cannot serve
as precedents for classifying the contested tax provisions in the
present dispute as existing aid.
122 Moreover, contrary to the argument advanced by Reassur, it is
irrelevant whether the group to which Reassur belongs (Schindler)
has operated an insurance captive which has received favourable
tax treatment in Liechtenstein since 1989. Whether a measure
constitutes new or existing aid must be made by reference to
the provisions providing for the aid and not at the level of the
beneficiaries (compare Case C-44/93 Namur-Les Assurances
du Crédit [1994] ECR i-3829, paragraph 28). However, there is
nothing in the case-file to suggest that the introduction of the
special tax measures for captive insurance undertakings was
a non-substantial alteration of a pre-existing tax scheme for
captive insurance activity, or, for that matter, that any previous
aid scheme for captive insurance activity existed. Apart from its
claim that Schindler’s captive insurance institute was subject
to the same tax treatment, Reassur submitted no information
concerning the legal basis, nature or functioning of the alleged
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
57