Report 2011 - EFTA Court

it was already established at the time of the introduction of the
contested measures that the alleged fiscal or social nature of
a measure does not suffice to shield it from the application of
the State aid rules (see Case Italy v Commission, cited above,
paragraph 13).
148 Further, in light of the mandatory nature of the review of State
aid by ESA under Article 63 EEA and Protocol 3, undertakings
to which aid has been granted may not, in principle, entertain
a legitimate expectation that the aid is lawful, unless it has
been granted in compliance with the procedure laid down in
that Article. Moreover, a diligent economic operator should
normally be able to determine whether that procedure has been
followed. in particular, where aid is implemented without prior
notification to ESA, so that it is unlawful under Article 1(3) of
Part i of Protocol 3, the recipient of the aid cannot as a rule
have a legitimate expectation that its grant is lawful (see, for
comparison, in relation to Article 88(3) EC, now Article 108(3)
TFEU, Joined Cases C-183/02 P and C-187/02 P Demesa and
Territorio Histórico de Álava v Commission [2004] ECR i-10609,
paragraphs 44 and 45, and the case-law cited, and Unicredito
Italiano, cited above, paragraph 104).
149 in the case at hand, the publication on 6 November 2001 of
the Commission decision of 11 July 2001 to open the formal
procedure as regards the tax measures in favour of captive
insurance companies in the Åland islands informed potential
beneficiaries of similar measures in the EEA States of the
risk attached to any aid in breach of Article 61(1) EEA, in that
recovery might be ordered. After publication, there was clearly
a situation of uncertainty as to the legality of the measure.
Beneficiaries were made aware of the possibility that the aid
might be considered to infringe Article 61(1) EEA and recovery
could be sought. in that case, they should either not accept
the advantages or make provision for possible subsequent
financial consequences in accordance with general accounting
practices (see Joined Cases Fesil and Finnfjord and Others,
paragraph 172).
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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