E-(EVA-hof)

EFTA-case

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Deadlines: Motivation departement:    16 March 2018
Written observations:                           2 May 2018 (ultimate deadline)

Keywords: failure to implement; investment

Subject:
-           EEA Agreement;
-           Agreement between the EFTA States on the Establishment of a Surveillance Authority and a Court of Justice (hereinafter: SCA);
-           Directive 2011/61/EU of the European Parliament and of the Council of 8 June 2011 on Alternative Investment Fund Managers and amending Directives 2003/41/EC and 2009/65/EC and Regulations (EC) No 1060/2009 and (EU) No 1095/2010;

Facts of the case:

ESA seeks a declaration from the Court that Iceland has failed to fulfil its obligations under the Act referred to at points 30, 31bb, 31eb, 31i and 31d of Annex IX to the EEA Agreement, that is Directive 2011/61/EU (hereinafter: Act) as adapted by Protocol 1 to the EEA Agreement, and under Article 7 of the EE Agreement, by failing to adopt the measures necessary to implement the Act within the time prescribed, and/or by failing to notify the ESA of the measures it has adopted to implement the Act.

On 11.01.2017, after correspondence, ESA issued a letter of formal notice in which it concluded that Iceland had failed to fulfil its obligations under the Act and Article 7 EEA by failing to adopt the measures necessary to implement the Act, and/or by failing to notify the Authority of measures taken to ensure implementation of the Act. On 09.03.2017, the Icelandic Government sent a reply to the letter of formal notice in which it informed the Authority that the Act had still not been implemented. In this letter of reply the Icelandic Government further stated that the Minister of Finance and Economic Affairs planned to present a legislative proposal before parliament in the course of the spring to implement the Act. Having received no further information, ESA delivered a reasoned opinion on 12.07.2017, maintaining the conclusion set out in its letter of formal notice. Pursuant to Article 31 SCA, ESA required Iceland to take the measures necessary to comply with the reasoned opinion within two months following its delivery, that is, no later than 12.09.2017. When the deadline set in the reasoned opinion expired, ESA had received no indication that Iceland had either adopted any measures to comply with the reasoned opinion, or had identified a timeframe for the adoption of such measures. Since Iceland did not comply with the reasoned opinion by the deadline set therein, ESA on 13.12.2017 decided to bring the matter before the Court pursuant to Article 31 SCA.

ESA requests the Court to:

a. Declare that Iceland has failed to fulfil its obligations under the Act referred to at points 30, 31bb, 31eb, 31i and 31d of Annex IX to the EEA Agreement (Directive 2011/61/EU of the European Parliament and of the Council of 8 June 2011 on Alternative Investment Fund Managers and amending Directives 2003/41/EC and 2009/65/EC and Regulations (EC) No 1060/2009 and (EU) No 1095/2010), as adapted by Protocol 1 to the EEA Agreement, and under Article 7 of the Agreement, by failing to adopt the measures necessary to implement that act within the time prescribed, and/or by failing to notify the EFTA Surveillance Authority of the measures it has adopted to implement that act.

b. order Iceland to bear the costs of these proceedings.

Cited (recent) case-law: /

Policy area: FIN