E-12/17 EFTA Surveillance Authority v Iceland

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;
-           Commission Implementing Regulation (EU) No 448/2013 of 15 May 2013 establishing a procedure for determining the Member State of reference of a non-EU AIFM pursuant to Directive 2011/61/EU of the European Parliament and of the Council (hereinafter: Act);
-           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:

The EFTA Surveillance Authority (hereinafter: ESA) seeks a declaration from the Court that Iceland has failed to fulfil its obligations under Article 7 of the EEA Agreement by failing to make the Act as adapted by Protocol 1 to the EEA Agreement, part of its legal order.

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 Article 7 EEA by failing to make the Act part of its internal legal order. 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, providing a basis for making the Act part of Iceland’s internal legal order. 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 the notification, that is, no later than 12.09.2017. At the point in time at which the deadline set in the reasoned opinion expired, the Authority 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 Article 7 of the EEA Agreement by failing to make the act referred to at point 31bbc of Annex IX to that Agreement (Commission Implementing Regulation (EU) No 448/2013 of 15 May 2013 establishing a procedure for determining the Member State of reference of a non-EU AIFM pursuant to Directive 2011/61/EU of the European Parliament and of the Council), as adapted by Protocol 1 to the EEA Agreement, part of its legal order.
b. order Iceland to bear the costs of these proceedings.

Cited (recent) case-law: /

Policy area: FIN