# C_2010256EN.01000901.xml

| 23.9.2010 | EN | Official Journal of the European Union | C 256/9 |
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23.9.2010

EN

Official Journal of the European Union

C 256/9

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Action brought on 9 July 2010 by Swisscom RE Aktiengesellschaft against the EFTA Surveillance Authority

(Case E-7/10)

2010/C 256/09

An action against the EFTA Surveillance Authority was brought before the EFTA Court on 9 July 2010 by Swisscom RE Aktiengesellschaft, represented by Dr. Michael Sánchez Rydelski, Rechtsanwalt for Swisscom RE Aktiengesellschaft, Kirchstrasse 12, 9490 Vaduz, LIECHTENSTEIN.

Swisscom RE Aktiengesellschaft requests the EFTA Court to:

| 1. | annul 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; |
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1.

annul 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 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 |
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2.

in the alternative, declare void Articles 3 and 4 of 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. |
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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, Swisscom RE Aktiengesellschaft, a wholly owned subsidiary of Swisscom AG, has carried out captive reinsurance operations in Liechtenstein for the Swisscom Group since its establishment in 1997. |
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The Applicant, Swisscom RE Aktiengesellschaft, a wholly owned subsidiary of Swisscom AG, has carried out captive reinsurance operations in Liechtenstein for the Swisscom Group since its establishment in 1997.

| — | The Applicant submits that the EFTA Surveillance Authority incorrectly applied Article 61(1) of the EEA Agreement. The Liechtenstein tax measures do not constitute State aid because captives do not qualify as undertakings within the meaning of Article 61(1) of the EEA Agreement. Furthermore, the Liechtenstein tax measure cannot be regarded as selective measures under Article 61(1) of the EEA Agreement. |
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The Applicant submits that the EFTA Surveillance Authority incorrectly applied Article 61(1) of the EEA Agreement. The Liechtenstein tax measures do not constitute State aid because captives do not qualify as undertakings within the meaning of Article 61(1) of the EEA Agreement. Furthermore, the Liechtenstein tax measure cannot be regarded as selective measures under Article 61(1) of the EEA Agreement.

| — | Moreover, the Applicant claims:






  — | that, should the Court conclude that the Liechtenstein tax measures were to involve State aid, the EFTA Surveillance Authority erred in ordering the recovery of the alleged aid as from 6 November 2001; and |
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Moreover, the Applicant claims:

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that, should the Court conclude that the Liechtenstein tax measures were to involve State aid, the EFTA Surveillance Authority erred in ordering the recovery of the alleged aid as from 6 November 2001; and

| — | that the EFTA Surveillance Authority did not provide adequate reasoning on essential points in its assessment, as required by Article 16 of the Surveillance and Court Agreement. |
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that the EFTA Surveillance Authority did not provide adequate reasoning on essential points in its assessment, as required by Article 16 of the Surveillance and Court Agreement.

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