CELEX: E1998C0045
Language: en
Date: 1998-03-04 00:00:00
Title: EFTA Surveillance Authority Decision No 45/98/COL of 4 March 1998 on the 13th amendment to the procedural and substantive rules in the field of State aid

23. 4. 98       ¬ EN ¬               Official Journal of the European Communities                              L 120/27
                                      EUROPEAN ECONOMIC AREA
                        EFTA SURVEILLANCE AUTHORITY
                                 EFTA SURVEILLANCE AUTHORITY DECISION
                                                       No 45/98/COL
                                                      of 4 March 1998
          on the 13th amendment to the procedural and substantive rules in the field of State
                                                              aid
          THE EFTA SURVEILLANCE AUTHORITY,
          has amended the procedural and substantive rules in the field of State aid (1), adopted on 19
          January 1994 (2), as last amended on 17 December 1997 (3), as follows.
          The following rules on short-term export-credit insurance and list of marketable risk countries
          (for the purpose of application of the rules in Chapter 17A on short-term export-credit in-
          surance) shall be added to the State aid Guidelines as a new chapter, Chapter 17A, and a new
          Annex IX, respectively:
          ‘17A.     SHORT-TERM EXPORT-CREDIT INSURANCE (1)
            17A.1. Introduction
            (1)     Export subsidies directly affect competition in the market place between rival potential
                    suppliers of goods and services. Recognising their pernicious effects, the European
                    Commission and the EFTA Surveillance Authority have consistently condemned export
                    aid in intra-EEA trade (2). However, although EEA States’ support for their exports
                    outside the EEA can also affect competition within the EEA (3), neither the Commission
                    nor the EFTA Surveillance Authority have systematically intervened in this field under
                    the respective State aid rules of the EC Treaty (Articles 92, 93 and 94) or the EEA
                    Agreement (Article 61 and Article 1 of Protocol 3 to the Surveillance and Court Agree-
                    ment). There have been several reasons for this. First, within the European Community
                    this area is partly governed by the provisions of the EC Treaty relating to external trade
                    (Articles 112 and 113). Secondly, it is not only competition within the Community or
                    the EEA that is affected by aid for exports to third countries, but also the competitive-
                    ness of EEA exporters vis-à-vis those of the EEA States’ trading partners, which give
                    similar aid. Finally, progress in controlling aid has been achieved in the OECD and
                    WTO.
          (1) Hereinafter referred to as the State aid Guidelines.
          (2) OJ L 231, 3. 9. 1994, p. 1; EEA Supplement to OJ 32, 3. 9. 1994.
          (3) OJ C 38, 5. 2. 1998, p. 19; EEA Supplement to OJ 5, 5. 2. 1998, p. 214.
 ---pagebreak--- L 120/28     ¬ EN ¬              Official Journal of the European Communities                             23. 4. 98
         (2)    While the Commission has, until the adoption of the communication corresponding to
                the present rules, refrained from exercising its State aid control powers in the areas of
                export credits and export-credit insurance, work by the European Council’s Export
                Credits Group (4) and cases before the Court of Justice of the European Communities (5)
                have, in the Commission’s opinion, shown that in one area at least, that of short-term
                export-credit insurance, the actual or potential distortions of competition in the
                Community may justify action by the Commission under the State aid rules without
                waiting for progress on other fronts.
         (3)    The EEA Agreement does not provide for a common trade policy vis-à-vis third coun-
                tries and consequently does not contain provisions corresponding to those in Articles
                112 and 113 of the EC Treaty. The Agreement therefore does not restrict the freedom of
                the EFTA States, in the same way as the EC Treaty does for EC Member States, to
                promote trade with third countries, provided such measures do not affect trade between
                the Contracting Parties to the EEA Agreement. However, as stated above, measures of
                this kind can affect competition and trade within the EEA. Furthermore, distortions of
                competition can occur not only between exporters in different EEA States in their trade
                within and outside the EEA, but also between export-credit insurers offering their
                services within the EEA. The Authority therefore considers that as concerns applic-
                ability of Article 61 of the EEA Agreement and Article 1 of Protocol 3 to the Surveil-
                lance and Court Agreement to short-term export-credit insurance, the situation is
                similar as for the application of Articles 92 and 93 of the EC Treaty. In other words the
                actual or potential distortion of competition and trade within the EEA calls for action
                by the Authority under the State aid rules.
         (4)    The purpose of these rules is to remove distortions of competition due to State aid in
                that sector of the export-credit insurance business in which there is competition
                between public or publicly supported export-credit insurers and private export-credit
                insurers. This commercial sector of export-credit insurance relates to the insurance of
                short-term export-credit risks on trade within the EEA and with many countries outside
                it. Such risks are termed “marketable” and will be defined in Section 17A.2. The defini-
                tion currently comprises only so-called “commercial”, as opposed to “political”, risks in
                trade within the EEA and with the majority of OECD countries, listed in Annex IX to
                these guidelines. While EFTA States have made considerable efforts to eliminate aid
                from the commercial sector of export-credit insurance, the good functioning of the EEA
                Agreement requires safeguards to ensure a level playing field in all circumstances.
         (5)    The present rules do not deal with the insurance of medium and long-term export-
                credit risks which are largely non-marketable at the present time. In that area, the
                factors which have led the Commission and the EFTA Surveillance Authority to refrain
                from extensive use of its State aid control powers still militate against such action.
         (6)    Section 17A.2 of these rules describes the structure of the export-credit insurance
                market. As for the commercial or market sector, in which private insurers operate and
                which is covered by these rules, it distinguishes between, on the one hand, private
                export-credit insurers and, on the other hand, public or publicly supported insurers. It
                also explains why and to what extent the State aid provisions of the EEA Agreement
                apply. Finally, in Section 17A.4, the Authority states what action it considers necessary
                to ensure that any remaining State aid of the types listed in Section 17A.3 is removed
                from the market sector and requests the EFTA States pursuant to Article 1(1) of Protocol
                3 to the Surveillance and Court Agreement to take such action, if required.
 ---pagebreak--- 23. 4. 98     ¬ EN ¬              Official Journal of the European Communities                                 L 120/29
          17A.2. Market and non-market sectors of short-term export-credit insurance
          (1)    The report of the Council’s Export-Credit Group referred to in a footnote to paragraph
                 17A.1(2) (hereinafter referred to as “the report”), complaints to the Commission by
                 private export-credit insurers and cases before the Court of Justice of the European
                 Communities, have shown that in some Member States the same “official” export-credit
                 agencies that insure the medium and long-term risks of exporters for the account or
                 with the guarantee (6) of the State also operate for the account or with the guarantee of
                 the State in parts of the short-term export-credit insurance market where they are in
                 competition with private export-credit insurers that have no such links with the State.
                 Preliminary examination by the EFTA Surveillance Authority indicates that this is also
                 the case in two of the three EFTA States parties to the EEA Agreement, namely Norway
                 and Iceland. The “official” export-credit agencies in question may be government
                 departments, State-owned or State-controlled companies or wholly privately-owned and
                 controlled companies. For the purposes of these rules, such agencies will be termed
                 “public or publicly supported export-credit insurers”. As well as the “official” agencies
                 operating in both the medium/long and short-term fields, some privately owned and
                 controlled export-credit insurers that only provide short-term insurance may be
                 supported by their governments through guarantees or equivalent reinsurance arrange-
                 ments for some segments of their business. These insurers, too, must be categorised as
                 “public or publicly supported”. On the other hand, export-credit insurers mainly or
                 exclusively engaged in the short term that do not operate for the account or with the
                 guarantee (7) of the State for any of their business will be termed “private export-credit
                 insurers”.
          (2)    The report showed that when public or publicly supported export-credit insurers
                 operated for the account of or with the guarantee of the State on parts of the short-term
                 market where they were in competition with private insurers, they enjoyed certain
                 financial advantages which could distort competition against private insurers. In no
                 country did public or publicly supported export-credit insurers have a monopoly for
                 short-term business.
          (3)    One of the most difficult areas dealt with by the report was the provision of reinsurance
                 by the State, either directly or indirectly. The report identified reinsurance arrangements
                 which provide 100 % cover and are equivalent to guarantees as a subsidy. It is now
                 recognised that reinsurance facilities whereby the State only participates in or supple-
                 ments a private-sector reinsurance treaty may also give insurers benefiting from them an
                 advantage over private insurers not receiving such cover, thereby distorting competition.
          (4)    Despite the recent improvements made, with public or publicly supported export-credit
                 insurers increasingly hiving off their short-term business to separate companies or intro-
                 ducing separate accounting, it has been noted above that action is still needed to create
                 the desired level playing field. The first task is to identify the sector in which a compet-
                 itive market exists. The report used as the decisive criterion for distinguishing the
                 market sector, whether or not private reinsurance was available generally, rather than
                 only in individual cases. It was observed that the answer was generally “yes” for commer-
                 cial risks on non-public buyers, but that for political risks (including risks on public
                 buyers, currency transfer risks and non-commercial, catastrophe risks) the capacity
                 available was so inadequate that cover for such risks was clearly not to be regarded as a
                 market activity. On the basis of an analysis of the private reinsurance market by
                 reference to the three criteria of duration, location and nature of risks insured, the report
                 considered “marketable” risks to involve commercial risks with a risk period of normally
                 a maximum of three years for exports worldwide.
 ---pagebreak--- L 120/30      ¬ EN ¬              Official Journal of the European Communities                                23. 4. 98
         (5)     Subsequent comments from EC Member States, EFTA States, business associations and
                 insurers indicated that generally speaking that definition was too broad. Most of those
                 submissions agreed with the report that political risks should be excluded because the
                 private reinsurance market was not large enough, and they preferred a maximum risk
                 period of two years for commercial risks. Also, it appeared to be very difficult to reinsure
                 on the private market the commercial risk of protracted default in non-OECD coun-
                 tries.
         (6)     In view of the close links between protracted default and insolvency, protracted default
                 risks being liable to turn into insolvency, and the resulting need to classify both risks in
                 the same category (marketable or non-marketable), it is prudent to exclude all commer-
                 cial risks on non-OECD countries from the definition of marketable risks and from the
                 scope of these rules for the time being. Finally, it appears that at present there are still
                 difficulties in obtaining private reinsurance of commercial risk in some OECD coun-
                 tries.
         (7)     In view of the above, “marketable” risks are defined for the purposes of these rules as
                 commercial risks on non-public debtors (8) established in the countries listed in Annex
                 IX to these guidelines. For such risks the maximum risk period (that is, manufacturing
                 period plus credit period with normal Berne Union starting point and usual credit term)
                 is less than two years.
         (8)     All other risks (that is, political, catastrophe (9) risks and commercial risks on public
                 buyers and on countries not listed in Annex IX) are considered not yet to be mar-
                 ketable.
         (9)     “Commercial risks” are defined for the purposes of these rules as:
                 — arbitrary repudiation of a contract by a debtor, that is, any arbitrary decision by a
                     non-public debtor to interrupt or terminate the contract without legitimate reason,
                 — arbitrary refusal by a non-public debtor to accept the goods covered by the contract
                     without legitimate reason,
                 — insolvency of a non-public debtor or his guarantor,
                 — non-payment by a non-public debtor or by a guarantor of a debt resulting from the
                     contract, that is, protracted default.
         (10)    The capacity of the private reinsurance market varies. This means that the definition of
                 marketable risks is not immutable and may change over time; for example, it might be
                 extended to cover political risks. The definition will therefore have to be reviewed regu-
                 larly (namely, at least once a year) by the Authority. The Authority will consult the
                 EFTA States and, if appropriate, other interested parties on such reviews. In so far as
                 necessary, changes to the definition will have to take account of the scope of EEA legis-
                 lation governing export-credit insurance, in order to avoid any conflict or legal uncer-
                 tainty.
         17A.3. Factors distorting competition between private and public or publicly
                 supported export-credit insurers
         (1)     The factors that may distort competition in favour of public or publicly supported
                 export-credit insurers insuring marketable risks include (10):
                 — de jure or de facto State guarantees of borrowing and losses. Such guarantees enable
                     insurers to borrow at rates lower than the normal market rates or make it possible
                     for them to borrow money at all. Furthermore, they obviate the need for insurers to
                     reinsure themselves on the private market,
 ---pagebreak--- 23. 4. 98     ¬ EN ¬               Official Journal of the European Communities                                L 120/31
                 — any difference in obligations, compared with private insurers, to maintain adequate
                     provisions. It should be noted than when Council Directive 73/239/EEC (11) was
                     amended by Directive 87/343/EC (12) it was understood that the exclusion of export-
                     credit insurance operations for the account of or guaranteed by the State (Article
                     2(2) (d) of the original Directive) did not include operations in the field of short-term
                     commercial risks which public or publicly supported export-credit insurers effected
                     for their own account and not guaranteed by the State (13). This means that to insure
                     short-term commercial risks, public or publicly supported insurers must have a
                     certain amount of own funds (solvency margin, including guarantee fund) and tech-
                     nical provisions (notably an equalisation reserve) and must have obtained authorisa-
                     tion in accordance with Article 6 et seq. of Directive 73/239/EEC,
                 — relief or exemption from taxes normally payable (such as company taxes and taxes
                     levied on insurance policies),
                 — awards of aid or provisions of capital by the State. With regard to the latter, the prin-
                     ciple should be observed that, unless the State is acting as would a private investor in
                     a market economy, capital injections involve State aid (14); provision by the State of
                     services in kind, such as access to and use of State infrastructure, facilities or priv-
                     ileged information (for instance, information about debtors gathered by embassies)
                     on terms not reflecting their cost, and reinsurance by the State, either directly, or
                     indirectly via a public or publicly-supported export-credit insurer, on terms more
                     favourable than those available from the private reinsurance market, which leads
                     either to under-pricing of the reinsurance or to the artificial creation of capacity that
                     would not be forthcoming from the private market.
          (2)    The types of treatment listed in paragraph 17A.3(1) give, or may give, the export-credit
                 insurers that receive them a financial advantage over other export-credit insurers. Such
                 financial advantages granted to certain enterprises distort competition and constitute
                 State aid within the meaning of Article 61(1) of the EEA Agreement.
          (3)    Article 61(1) is applicable to all measures which grant a financial or economic advantage
                 to certain enterprises or products and involve a charge on, or a loss to public funds,
                 whether actual or contingent, and for which nothing or little is required from the bene-
                 ficiary concerned, in so far as such measures affect trade between Contracting Parties
                 and distort or threaten to distort competition by favouring certain undertakings or the
                 production of certain goods (15).
          (4)    The financial advantages listed in paragraph 17A.3(1) in respect of marketable risks as
                 defined in paragraphs 17A.2(7) to (9) affect intra-EEA trade in services. Moreover, they
                 lead to variations in the insurance cover available for marketable risks in different EEA
                 States, thereby distorting competition between companies in EEA States and having
                 secondary effects on intra-EEC trade regardless of whether intra-EEA exports outside
                 the territories of the Contracting Parties are concerned (16). The exceptions provided for
                 in Article 61 of the EEA Agreement do not apply to aid for the insurance of marketable
                 risks. The distorting effects of such aid within the EEA outweigh any possible national
                 or common EEA interest in supporting exports. That view has been confirmed by the
                 judgment of the European Court of Justice in Case C-63/89, which was directly
                 concerned with the issue addressed by the present rules. The Court held that although
                 the Directive on partial harmonisation of equalisation reserves for insurance companies,
 ---pagebreak--- L 120/32      ¬ EN ¬              Official Journal of the European Communities                                  23. 4. 98
                 which exempted export-credit insurance operations for the account of or guaranteed by
                 the State, was not unlawful, the factors distorting competition between private and
                 public or publicly supported export-credit insurers “might justify recourse to legal action
                 to penalise infringement of the provisions” (i.e. of Article 92 of the EC Treaty) (17). In its
                 judgment in Case C-44/93, the Court assumed that the advantages in question consti-
                 tute State aid and confirmed that the Commission might take action to secure their
                 withdrawal.
         17A.4. Action required to eliminate distortions of competition in short-term export-
                 credit insurance with respect to marketable risks
          (1)    State aid of the types listed in paragraph 17A.3(1), which is enjoyed by publicly
                 supported export-credit insurers for the marketable risks defined in paragraphs 17A.2(7)
                 to (9), may distort competition and would therefore be ineligible for exemption under
                 the State aid rules of the EEA Agreement.
          (2)    The EFTA States are therefore requested within the meaning of Article 1(1) of Protocol
                 3 to the Surveillance and Court Agreement to amend, where necessary, their export-
                 credit insurance systems for marketable risks in such a way that the granting of State aid
                 of the following types to public or publicly supported export-credit insurers in respect
                 of such risks is ended before 1 January 1999:
                 (a) State guarantees for borrowing or losses;
                 (b) exemption from the requirement to constitute adequate reserves and the other
                     requirements listed in the second indent of paragraph 17A.3(1);
                 (c) relief or exemption from taxes or other charges normally payable;
                 (d) award of aid or provisions of capital or other forms of finance in circumstances in
                     which a private investor acting under normal market conditions would not invest in
                     the company or on terms a private investor would not accept;
                 (e) provision by the State of services in kind, such as access to and use of State infra-
                     structure, facilities or privileged information (for instance, information about debtors
                     gathered by embassies), on terms not reflecting their cost;
                 (f) reinsurance by the State, either directly, or indirectly via a public or publicly-
                     supported export-credit insurer, on terms more favourable than those available from
                     the private reinsurance market, which leads either to under-pricing of the rein-
                     surance cover or to the artificial creation of capacity that would not be forthcoming
                     from the private market.
          (3)    However, pending the outcome of the review mentioned in paragraph 17A.4(6), existing
                 complementary State reinsurance arrangements remain permissible for an interim
                 period, provided that:
                 — the State reinsurance is a minority element in the insurer’s overall reinsurance
                     package,
                 — where the reinsurance treaties of the insurer combine marketable and non-mar-
                     ketable risks, and any State reinsurance thus unavoidably attaches to marketable risk,
                     the level of State reinsurance for marketable risks must not exceed that which would
                     have been available from the private reinsurance market if reinsurance had been
                     sought for those risks in isolation,
                 — the State reinsurance does not act so as to enable the insurer to insure business on
                     individual buyers beyond the limits set by the participating private-market rein-
                     surers,
                 — the premium for State reinsurance demonstrably reflects the risk, is calculated using
                     commercial market techniques and, where an equivalent market premium rate is
                     available, is at least equal to that rate,
                 — the State reinsurance for marketable risks is open to all credit insurers who are able
                     to satisfy the common eligibility criteria.
 ---pagebreak--- 23. 4. 98      ¬ EN ¬              Official Journal of the European Communities                               L 120/33
          (4)     For the purposes of complying with paragraphs 17A.4(2) to (3), public or publicly-
                  supported export-credit insurers will, at the very least, have to keep a separate adminis-
                  tration and separate accounts for their insurance of marketable risks and non-marketable
                  risks for the account or with the guarantee of the State, demonstrating that they do not
                  enjoy State aid in their insurance of marketable risks. The accounts for business insured
                  on the insurer’s own account should comply with the act referred to in point 12b of
                  Annex IX to the EEA Agreement (18).
          (5)     Furthermore, an EFTA State providing reinsurance cover to an export-credit insurer by
                  way of participation or involvement in private sector reinsurance treaties covering both
                  marketable and non-marketable risks will have to demonstrate that its arrangements do
                  not involve State aid within the meaning of paragraph 17A.4(2)(f).
          (6)     For this purpose the EFTA Surveillance Authority, in close liaison with the EFTA
                  States, will continuously, as from the publication of these rules, monitor such arrange-
                  ments on the basis of six-monthly reports submitted by EFTA States concerned and by
                  February 1999 will carry out a complete review of such arrangements. The review will
                  take into account all the knowledge and experience acquired in the mean time about
                  the operation of the short-term export-credit insurance market, and EFTA States’ inter-
                  vention therein, from the reports on implementation supplied under paragraph
                  17A.4(14) from the first of the annual reviews to be undertaken under paragraph
                  17A.4(15) and from any notifications of use of the escape clause under paragraphs
                  17A.4(8) to (13). Should the review find that the arrangements in an EFTA State involve
                  State aid, the EFTA State will be required to terminate them by the end of 1999 at the
                  latest.
          (7)     The principle that export-credit insurance for marketable risks should be provided by
                  public or publicly supported export-credit insurers only if the financial advantages listed
                  in paragraphs 17A.4(2), subject to paragraph 17A.4(3), are withdrawn from them may be
                  departed from in the circumstances set out in paragraphs (8) to (13) (escape clause).
          (8)     In certain countries, cover for marketable export-credit risks may be temporarily un-
                  available from private export-credit insurers or from public or publicly-supported
                  export-credit insurers operating for their own account, owing to a lack of insurance or
                  reinsurance capacity. Therefore those risks are temporarily considered to be non-mar-
                  ketable.
          (9)     In such circumstances, those temporarily non-marketable risks may be taken on to the
                  account of a public or publicly-supported export-credit insurer for non-marketable risks
                  insured for the account of or with the guarantee of the State. The insurer should, as far
                  as possible, align its premium rates for risks with the rates charged elsewhere by private
                  export-credit insurers for the type of risk in question.
          (10)    An EFTA State intending to use the escape clause should immediately notify the EFTA
                  Surveillance Authority of its draft decision. That notification should contain a market
                  report demonstrating the unavailability of cover for the risks in the private insurance
                  market by producing evidence thereof from two large, well-known international private
                  export-credit insurers as well as a national credit insurer, thus justifying the use of the
                  escape clause. Alternatively, evidence of unavailability of cover in the private insurance
                  market may possibly be demonstrated by means of a market report by an independent
                  consultant which the Authority considers reliable and impartial. The notification
                  should, moreover, contain a description of the conditions which the public or publicly
                  supported export-credit insurer intends to apply in respect of such risks.
          (11)    Within two months of the receipt of such notification, the Authority will examine
                  whether the use of the escape clause is in conformity with the above conditions and
                  compatible with the EEA Agreement.
 ---pagebreak--- L 120/34       ¬ EN ¬              Official Journal of the European Communities                                   23. 4. 98
          (12)     If the Authority finds that the conditions for the use of the escape clause are fulfilled, its
                   decision on compatibility is limited to two years from the date of the decision, provided
                   that the market conditions justifying the use of the escape clause do not change during
                   that period.
          (13)     Furthermore, the Authority may, in consultation with the EFTA States, revise the condi-
                   tions for the use of the escape clause; it may also decide to discontinue it or replace it
                   with another appropriate system.
          (14)     These rules will apply from 1 January 1998 until the end of the year 2002. The EFTA
                   States are requested to inform the EFTA Surveillance Authority within two months of
                   notification of these rules, whether they accept its recommendations. Furthermore, by 1
                   January 1999 at the latest, the EFTA States must inform the Authority of the action
                   they have taken to comply herewith. Should it appear either through those reports or
                   otherwise that the systems in operation in the EFTA States still involve State aid, the
                   Authority will assess such aid pursuant to Article 61 of the EEA Agreement and Article
                   1 of Protocol 3 to the Surveillance and Court Agreement, in accordance with the policy
                   set out above.
          (15)     In cooperation with the EFTA States and interested parties, the Authority will review
                   the definition of marketable risks and the operation of the present rules in the light of
                   market developments and possible EEA-relevant legislation. All information received by
                   the Authority from EFTA States and interested parties in connection with such reviews
                   will, with the permission of the supplier of the information, be made available to all the
                   other participants in the review.
         (1) This chapter corresponds to the communication of the Commission to the Member States
             pursuant to Article 93(1) of the EC Treaty applying Articles 92 and 93 of the Treaty to short-
             term export-credit insurance (OJ C 281, 17.9.1997, p. 4).
         (2) In its Seventh report on competition policy (1977), point 242, the European Commission
             stated that export aids in intra-Community trade “cannot qualify for derogation whatever
             their intensity, form, grounds or purpose”.
         (3) See judgment of the Court of Justice in Case C-142/87 Belgium v. Commission [1990] ECR
             I-959. See also Case C-44/93 Assurances du Crédit v. OND and Belgium [1994] ECR I-3829,
             paragraph 30.
         (4) “L’assurance crédit et le marché unique 1992 (court-terme)”, report presented to the coordi-
             nation group, rapporteur P. Callut.
         (5) See Case C-63/89 Assurances du Crédit and Cobac v. Council and Commission [1991] ECR
             I-1799, and Case C-44/93 Assurances du Crédit v. OND and Belgium [1994] ECR I-3829.
         (6) In some cases, medium and long-term business may be conducted not under a guarantee, but
             under a comprehensive reinsurance agreement with the government.
         (7) Or with equivalent reinsurance arrangements.
         (8) Or non-public guarantors. A public debtor or guarantor is a debtor or guarantor who, in one
             form or another, represents the public authority itself and cannot either judicially or adminis-
             tratively be declared insolvent. For the purposes of these rules, publicly-owned or publicly-
             controlled companies resident in the countries listed in Annex IX to these guidelines as a
             marketable risk country and subject to the normal provisions of private company law are
             considered to be non-public debtors/guarantors.
         (9) That is, war, revolution, natural disasters, nuclear accidents, and so forth, not so-called
             “commercial, catastrophe risks” (catastrophic accumulations of loss on individual buyers or
             countries) which may be covered by excess of loss reinsurance and are commercial risks.
 ---pagebreak--- 23. 4. 98        ¬ EN ¬               Official Journal of the European Communities                           L 120/35
          (10) The tying by a public or publicly supported export-credit insurer of insurance of non-marke-
               table risks to the acceptance of cover for marketable risks might infringe Article 54 of the
               EEA Agreement. Such action could both be the subject of proceedings by the EFTA Surveil-
               lance Authority or the Commission and challenged in the courts and before national compe-
               tition authorities.
          (11) First Council Directive 73/239/EEC of 24 July 1973 on the coordination of laws, regulations
               and administrative provisions relating to the taking-up and pursuit of the business of direct
               insurance other than life assurance (OJ L 228, 16.8.1973, p. 3), see point 2 of Annex IX to
               the EEA Agreement.
          (12) Council Directive 87/343/EEC of 22 June 1987 amending Directive 73/239/EEC on the
               coordination of laws, regulations and administrative provisions relating to the taking-up and
               pursuit of the business of direct insurance other than life assurance (OJ L 185, 4.7.1987, p.
               72), see third indent of point 2 of Annex IX to the EEA Agreement.
          (13) See judgment of the Court of Justice in Case C-63/89, Assurances du Credit and Cobac v.
               Council and Commission, cited in footnote 5, p. 1848 (paragraph 22).
          (14) See Chapters 19 and 20 of the present State aid Guidelines.
          (15) See judgments of the Court of Justice in Case 30/59 Steenkolenmijnen v. High Authority
               [1961] ECR pp. 1 to 19; Case 173/73 Italy v. Commission [1974] ECR, p. 709, Case 730/79
               Philip Morris v. Commission [1980] ECR, p. 2671.
          (16) In its judgment in Case C-142/87 Belgium v. Commission, cited in a footnote to paragraph
               17 A.1(1), the European Court of Justice held that not only aid for intra-Community exports,
               but also aid for exports outside the Community can influence intra-Community competition
               and trade. Both types of operation are insured by export-credit insurers and aid with respect
               to both can therefore have effects on intra-Community competition and trade.
          (17) See paragraph 24 of the Judgment by the European Court of Justice in Case C-63/89 cited
               in a footnote to paragraph 17 A.1(3). Advocate-General Tesauro, in his opinion in the case,
               considered that when there is competition between private and public or publicly backed
               export-credit insurers, “it is highly doubtful whether the States can legitimately provide
               financial backing for public operators. To do so might be incompatible with the rules on
               public aid . . .” ([1991] ECR I-1835, point 15).
          (18) Council Directive 91/674/EEC of 19 December 1991 on the annual accounts and consoli-
               dated accounts of insurance undertakings (OJ L 374, 31.12.1991, p. 7), as adapted for the
               purpose of the EEA Agreement by EEA Joint Committee Decision No 7/94 (OJ L 160,
               28.6.1994; EEA Supplement to OJ 17, 28.6.1994).’
                                                        ‘ANNEX IX
          LIST OF MARKETABLE RISK COUNTRIES FOR THE PURPOSE OF APPLICA-
          TION OF THE RULES IN CHAPTER 17A ON SHORT-TERM EXPORT-CREDIT
                                                       INSURANCE
          Countries which are Contracting Parties to the EEA Agreement
          Austria
          Belgium
          Denmark
 ---pagebreak--- L 120/36       ¬ EN ¬          Official Journal of the European Communities                      23. 4. 98
         Finland
         France
         Germany
         Greece
         Ireland
         Italy
         Luxembourg
         Netherlands
         Portugal
         Spain
         Sweden
         United Kingdom
         Iceland
         Liechtenstein
         Norway
         Other countries which are members of the OECD and which are considered to be marketable
         risk countries
         Australia
         Canada
         Japan
         New Zealand
         Switzerland
         United States of America’
         Done at Brussels, 4 March 1998.
                                                          For the EFTA Surveillance Authority
                                                                    Knut ALMESTAD
                                                                     The President