15.7.2010

Official Journal of the European Union

C 191/11

Action brought on 21 May 2010 by the Principality of Liechtenstein against the EFTA Surveillance Authority

(Case E-4/10)

2010/C 191/09

An action against the EFTA Surveillance Authority was brought before the EFTA Court on 21 May 2010 by the Principality of Liechtenstein, represented by Dr Andrea Entner-Koch, acting as Agent for the Principality of Liechtenstein, EEA Coordination Unit, Austrasse 79/Europark, FL-9490 Vaduz.

The Principality of Liechtenstein requests the EFTA Court to:

1.	Annul the EFTA Surveillance Authority’s Decision No 97/10/COL of 24 March 2010 regarding the taxation of captive insurance companies under the Liechtenstein Tax Act;

2.	In the alternative, declare void Articles 3 and 4 of the EFTA Surveillance Authority’s Decision No 97/10/COL of 24 March 2010, to the extent that they order the recovery of the aid referred to in Article 1 of that Decision; and

3.	Order the EFTA Surveillance Authority to pay the costs of the proceedings.

Legal and factual background and pleas in law adduced in support:

—

The EFTA Surveillance Authority’s Decision No 97/10/COL of 24 March 2010 declared that the tax rules applicable to captive (re)insurers in Liechtenstein, under Articles 82(a) and 88(d)(3) of the Liechtenstein Tax Act, constituted State aid within the meaning of Article 61(1) of the EEA Agreement, as they taxed captive (re)insurers more favourably than ‘normal insurance companies’. The EFTA Surveillance Authority further decided that the alleged aid constituted unlawful aid subject to recovery from the captive (re)insurers as from 6 November 2001.

—	The applicant contends that the tax provisions at stake do not constitute State aid within the meaning of Article 61(1) of the EEA Agreement

—

The applicant claims that the EFTA Surveillance Authority:

—	erred when it applied Article 61(1) of the EEA Agreement to the taxation of captives under the Liechtenstein Tax Act, and when it ordered the repayment of the alleged unlawful aid from the captive (re)insurances as from 6 November 2001;

—	wrongfully applied Article 61(1) of the EEA Agreement towards captives, given their special nature and restricted ambit of activities;

—	did not provide adequate reasoning in its contested Decision, as required by Article 16 of the Surveillance and Court Agreement.