# C_2010237EN.01001901.xml

| 2.9.2010 | EN | Official Journal of the European Union | C 237/19 |
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2.9.2010

EN

Official Journal of the European Union

C 237/19

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Action brought on 15 June 2010 by Reassur Aktiengesellschaft against the EFTA Surveillance Authority

(Case E-6/10)

2010/C 237/03

An action against the EFTA Surveillance Authority was brought before the EFTA Court on 15 June 2010 by Reassur Aktiengesellschaft, represented by Ulrich Soltész and Philipp Melcher, acting as agents for Reassur Aktiengesellschaft, Aeulestrasse 5, 9490 Vaduz, LIECHTENSTEIN.

Reassur Aktiengesellschaft 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, in its entirety; |
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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, in its entirety;

| 2. | Annul Article 3 of 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, at least insofar as it orders recovery for the period prior to 31 March 2009;
  and |
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2.

Annul Article 3 of 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, at least insofar as it orders recovery for the period prior to 31 March 2009;

and

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

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

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

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

| — | The applicant is the reinsurance captive of the Schindler group which has been exclusively engaged in reinsuring certain types of risks of companies belonging to the Schindler group. |
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The applicant is the reinsurance captive of the Schindler group which has been exclusively engaged in reinsuring certain types of risks of companies belonging to the Schindler group.

| — | The applicant contends that since captive (re)insurance companies cover risks, for which insurance coverage is not normally offered by commercial insurance companies, and as their activities are confined to intra-group risk coverage, they are not active in a market where they are in competition with other market players. They are therefore not engaged in an economic activity and do not qualify as undertakings. Consequently, taxation pursuant to the provisions of the Liechtenstein Tax Act concerning taxation of captive (re)insurance companies cannot have distorted competition or intra-EEA trade. The contested tax provisions are not selective and do therefore not constitute State aid. |
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The applicant contends that since captive (re)insurance companies cover risks, for which insurance coverage is not normally offered by commercial insurance companies, and as their activities are confined to intra-group risk coverage, they are not active in a market where they are in competition with other market players. They are therefore not engaged in an economic activity and do not qualify as undertakings. Consequently, taxation pursuant to the provisions of the Liechtenstein Tax Act concerning taxation of captive (re)insurance companies cannot have distorted competition or intra-EEA trade. The contested tax provisions are not selective and do therefore not constitute State aid.

| — | Moreover, the applicant claims that the EFTA Surveillance Authority:






  — | was wrong in choosing the procedure applicable to ‘unlawful aid’ and in adopting a recovery decision, |
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Moreover, the applicant claims that the EFTA Surveillance Authority:

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was wrong in choosing the procedure applicable to ‘unlawful aid’ and in adopting a recovery decision,

| — | violated the principle of legitimate expectations by ordering recovery for the period from 6 November 2001 through at least 31 March 2009. |
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violated the principle of legitimate expectations by ordering recovery for the period from 6 November 2001 through at least 31 March 2009.

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