Report 2011 - EFTA Court

134 in ESA’s view, the publication of 6 November 2001 was
sufficiently clear and precise to warn any prudent operator that
the Liechtenstein captive insurance scheme was likely to be
characterised as operating aid. Since such aid would only be
declared compatible in exceptional circumstances and could not
normally be exempted from the general prohibition on State aid,
its recovery from the beneficiaries would be a likely outcome.
ESA submits further that the differences, highlighted by the
applicants, between the Åland islands scheme and the contested
tax provisions in the case at hand are not relevant.
135 The Commission supports ESA’s view. it contends that following
the adoption of a decision to initiate the procedure under Article
108(2) TFEU, there is, at the very latest, a significant element of
doubt as to the legality of a measure. Accordingly, no prudent
operator could entertain a legitimate expectation that a measure
such as the one at issue did not constitute State aid.
136 According to the Kingdom of Norway, any trader in regard
to whom an institution has given rise to justified hopes may
rely on the principle of protection of legitimate expectations.
Consequently, it follows from settled Commission practice,
implicitly upheld by the ECJ, that beneficiaries under a scheme in
one Member State may derive legitimate expectations capable of
preventing recovery of aid granted, from, inter alia, a Commission
decision finding that a similar scheme in another Member State
does not constitute State aid.
137 Norway accepts, in principle, ESA’s premise that Commission
decisions may negate legitimate expectations concerning the
compatibility with State aid rules of similar measures in other
Member States, in the same vein as such decisions may give rise
to legitimate expectations in the first place. However, Norway
takes the view that this likewise dictates that there must be a
certain symmetry between the circumstances which gave rise
to the justified hopes and those which are capable of disrupting
them.
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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