Sigrún Davíðsdóttir's Icelog

Archive for January, 2013

Barclays, Kaupthing and the Qatari investors – updated

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I have earlier pointed out the similarities between the Kaupthing connections with the Qatari investor Sheikh Mohammed bin Khalifa al Thani and Barclays contacts with another al Thani and Qatari investors. As recounted in some details here, with Kaupthing documents, the Kaupthing saga with the Qatari investor, who bought shares in Kaupthing in September 2008 publicised at the time as showing the Qatari faith in Kaupthing, was indeed a saga of a very favourable Kaupthing loan to the Qatari investor.

This saga had surfaced in the Icelandic media but was fully documented in the SIC report in April 2010 and more recently in charges brought by the Office of the Special Prosecutor against three Kaupthing managers – Sigurdur Einarsson, Hreidar Mar Sigurdsson and Magnus Gudmundsson and Kaupthing’s second largest shareholder at the time, Olafur Olafsson. It did more than strife my mind if the Qatari share-buying in Barclays mirrored the Kaupthing story: that Barclays had lent them the money. Now the FT (subscription) is writing that this is indeed being investigated.

A recent Bloomberg article on the Libor probe refers to an investigation against Barclays chief financial officer Chris Lucas related to “payments made to Qatar’s sovereign wealth fund, the bank revealed last year.” Lucas, who had sought anonymity in the Libor investigations, is also mentioned in the FT article.

As the rumours about alleged fraud started surfacing after the Icelandic bank collapse in 2008 I heard various Icelandic bankers maintain, rather miffed, that they had not done anything differently from bankers in other banks. These words are now taking on a new meaning as we get more insight into what was actually going on in other banks, especially in the UK.

The Icelandic banking saga was laid open in the Icelandic SIC report. Unfortunately, no similar work has been done in the UK or elsewhere, with one exception: the only work comparable to the SIC report, that I am aware of, is Anton Valukas report on Lehman (earlier Icelog on Valukas’ Lehman report here), which was both extensive and thorough and a fantastic read. Recently, Valukas, in his first interview (CBS 60 Minutes) on the Lehman report, has expressed his surprise that no action has been taken against Lehman managers on the basis of his report.

The alleged Barclays deal with the Qatari is yet another addition to an ever more extensive saga of widespread questionable dealings within banks, showing a staggering lack of morality and integrity. These men were not only handsomely remunerated but in some cases knighted – and so far, the bill has been passed on to shareholders whereas none of the doers has been held accountable. That could be changing now with the Libor probe but it is still too early to say if charges will be more successfully pressed than in the SFO case against Kaupthing.

*Feb 3: Chris Lucas, Barclays finance officer for almost six years, is stepping down later this year, according to Sky News. It is unclear what sort of a leaving pay-packet he takes with him. – FT reports that Barclays general counsel Mark Harding is also leaving.


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Written by Sigrún Davídsdóttir

January 31st, 2013 at 11:18 pm

Posted in Iceland

Iceland the winner in the ESA case at the EFTA Court – updated

with 9 comments

Iceland has its Faust, Sæmundur the wise – but in the Icelandic tales of Sæmundur he beats the devil. For some reason this fairy tale comes to my mind now.

The EFTA Court has today dismissed the ESA application re Icesave. Here is the Court’s press release, highlights are mine:

Judgment in Case E-16/11 EFTA Surveillance Authority v Iceland (“Icesave”)


During a worldwide financial crisis in 2008 the Icelandic banking sector collapsed. As part of the financial crisis, the depositors of Landsbanki Íslands hf. (“Landsbanki”) at its branches in the Netherlands and the United Kingdom lost access to their deposits in the autumn of 2008. This included the so-called Icesave-on-line savings accounts. Consequently, Iceland’s Depositors’ and Investors’ Guarantee Fund should have been obliged to pay the minimum guarantee per depositor according to the rules and time limits as set out in the Icelandic law implementing Directive 94/19/EC on deposit-guarantee schemes (“the Directive”). However, no such payments were made to those depositors. The UK and Netherlands authorities arranged for a pay out of retail depositors from their own deposit-guarantee schemes. On the other hand, domestic deposits in Landsbanki had been transferred to a new bank “new Landsbanki” which was established by the Icelandic Government.

Against this background the EFTA Surveillance Authority (“ESA”) lodged an application with the EFTA Court. ESA sought a determination that Iceland had failed to comply with its obligations resulting from the Directive, in particular Articles 3, 4, 7 and 10 thereof, (first plea) and/or Article 4 EEA (second and third pleas) since it did not ensure payment of the minimum amount of compensation (EUR 20 000) to Icesave depositors in the Netherlands and the United Kingdom within the given time limits. The application was supported by the European Commission as intervener.

Written observations were submitted by the Principality of Liechtenstein, the Kingdom of the Netherlands, the Kingdom of Norway and the United Kingdom. These EEA States limited their observations to the first plea only.

In today’s judgment, the Court dismissed the application.

As regards the first plea, the Court noted at the outset that the nature of the result to be achieved is determined by the substantive provisions of the particular directive. Moreover, it noted that as a result of the crises, the regulatory framework of the financial system had been subject to revision and amendment in order to enhance financial stability. However, the present judgment had to be based on the Directive as it stood at the relevant time, without these amendments and without the improved protection of depositors.

The Court held that the Directive did not envisage the alleged obligation of result to ensure payment to depositors in the Landsbanki branches in the Netherlands and the United Kingdom in a systemic crisis of the magnitude experienced in Iceland. How to proceed in a case where the guarantee scheme was unable to cope with its payment obligations remained largely unanswered by the Directive. The only operative provision that deals with non-payment is Article 7(6) according to which depositors have the possibility to bring an action against the responsible scheme. An action against or an obligation on the EEA State in question, though, was not envisaged in the Directive’s provisions. Moreover, neither case law nor a comparison with secondary law supported the first plea.

However, it was stated that this did not mean that depositors necessarily remain unprotected in such a case. Depositors may fall within the remit of other parts of the safety net. They may benefit from other provisions of EEA law regarding financial services, as well as the activities of supervisory bodies, central banks, or governments. The question in the present case, however, was whether the EEA States are legally responsible under the Directive in case of such an enormous event.

Concerning the second plea, it was held that the principle of non-discrimination requires that there is no difference in treatment of depositors by the guarantee scheme itself and the way in which it uses its funds. Insofar, discrimination under the Directive is prohibited. However, the transfer of domestic deposits from the old Landsbanki into the new Landsbanki was made before the Icelandic Financial Supervisory Authority, Fjármálaeftirlitið, rendered its declaration that triggered the application of the Directive. Thus, depositor protection under the Directive never applied to depositors in Icelandic branches of Landsbanki. Accordingly, the transfer of domestic deposits – whether it leads in general to unequal treatment or not – did not fall within the scope of the non-discrimination principle as stipulated by the Directive and could not lead to an infringement of the aforementioned provisions of the Directive read in light of Article 4 EEA. Consequently, the second plea was dismissed.

As regards the third plea, the Court noted that it is settled case law that the principle of non- discrimination, which has its basis in Article 4 EEA, requires that comparable situations must not be treated differently and that different situations must not be treated in the same way. Moreover, it was held that ESA had expressly limited the scope of its application. In ESA’s view the breach had been constituted by the failure of the Icelandic Government to ensure that Icesave depositors in the Netherlands and the United Kingdom received payment of the minimum amount of compensation provided for in the Directive within the time limits laid down in the Directive, as it did for domestic depositors. ESA added that the compensation of domestic and foreign depositors above and beyond that minimum amount is not to be discussed in the context of the present proceedings.

Thus, considering ESA’s self-limitation, the Court was bound to assess whether Iceland was under a specific obligation to ensure that payments were made to Icesave depositors in the Netherlands and the United Kingdom. However, since the Court had already held that the Directive, even read in light of Article 4 EEA, imposes no obligation on the defendant to ensure that payments are made in accordance with the requirements of the Directive to Icesave depositors in the Netherlands and the United Kingdom, it was found that such an obligation of result could only be deemed to exist if it followed directly from Article 4 EEA itself. The Court held that this is not required under the principle of non-discrimination. A specific obligation upon the defendant that would not even establish equal treatment between domestic depositors and those depositors in Landsbanki’s branches in other EEA States could not be derived from that principle. Consequently, the third plea, and the application as a whole was dismissed.

This is how I understand the judgement:

Re the first part, breach of the Directive, it is interesting that the Court sides with Iceland that circumstances were extraordinary and could not pose the obligation on Iceland since the Directive only referred to failure of single banks, not the major part of the financial system.

Re discrimination, the course of events in Iceland was such that the Court decides there was no discrimination involved.

Further, re discrimination in a wider context, there can be no discrimination since there was no breach of the directive.

The judgement in full is here.


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Written by Sigrún Davídsdóttir

January 28th, 2013 at 11:25 am

Posted in Iceland

Waiting for the EFTA Court judgement on Icesave – the essentials

with 4 comments

On Monday January 28, at 11.30am, the EFTA Court will deliver its judgement in the Icesave case brought by the EFTA Surveillance Authority, ESA, against Iceland.

The ESA summary of its case against Iceland is:

The EFTA Surveillance Authority submits that by failing to ensure payment of the minimum amount of compensation to Icesave depositors in the Netherlands and in the United Kingdom within the time limits laid down in Directive 94/19/EC, Iceland has failed to comply with its obligations arising under Articles 3(1), 4(1), 7(1) and 10(1) of Directive 94/19/EC. Additionally or in the alternative, the EFTA Surveillance Authority submits that Iceland has breached the prohibition on discrimination on grounds of nationality under Article 4 EEA. 

Here are some of the key issues to bear in mind once the judgement has been read: 

1 EFTA Court judgements are only yes/no rulings – a yes / no as to X having failed/not failed to comply with certain EU directives / European Economic Area Agreement.

2 The Court does not meet out sanctions, only answers “yes” or “no” as mentioned above. Consequently, the fact that no sanctions will be mentioned in the judgement can’t be seen as a partial victory for those the Court finds against.

3 A judgement from the EFTA Court is a proper judgement, not only “advisory” – and there is no instance of appeal. This is the final instance in deciding a failure or not when it comes to an EU/EEA directive/agreement. (According to a Sky report the president of Iceland Olafur Ragnar Grimsson has stated that the judgement is only “advisory.” That is not correct.*)

4 In cases where ESA is the applicant ESA is also a guardian of the judgement in the sense that ESA will keep an eye on if the judgement is fulfilled or not. – However, it is not necessarily crystal clear right away, from the judgement, what action needs to be taken.

5 In one case ESA has brought a country twice to the EFTA Court for the same reason. This happened in a case against Norway, related to public service pension payment, which ESA deemed to fail to comply with a EU directive on gender equality.

Three years after the original judgment ESA concluded that Norway, having had ample time, had fail to make the necessary changes to comply with the directive. Although Norway had started taking action ESA waited no longer and brought another case:

,,More than three years after the EFTA Court required Norway to recalculate the survivor pension of approximately 4000 pensioners, less than half of them has received the payment they are entitled to. The EFTA Surveillance Authority has therefore brought Norway to the EFTA Court for not complying with the judgment.

This is the first time that the Authority has had to take an EFTA State to the EFTA Court for failure to comply with a Court judgment.” – Full text here.

The interesting parallel here is that Norway was supposed to fulfil the judgement by a financial compensation, ie paying 4000 pensioners an extra sum – but yes, three years later they hadn’t yet done so. This case is still in the consultative process, not yet at the Court.

6 The only authority with constitutional rights to speak on behalf of Iceland is the Icelandic Government. Anyone else, ia the president of Iceland, can of course have his or her opinion but these opinions carry no authority as to what action Iceland will take on the issue, but are, in this context, purely personal opinions.

7 In case the judgement goes against Iceland (on one or both issues), the Dutch and the British Governments will most likely wait until after the Icelandic election to take Icesave again up with the Icelandic Government.

8 The Icesave case – if and how the British and Dutch demands for Iceland reimbursing the European minimum guarantee for Icesave depositors in respective countries – was a bone of contention in Iceland for several years following the collapse of the Icelandic banks in October 2008. From those opposing an agreement, it seemed as if the financial future of Iceland could only be assured by not paying.

It is interesting to note that although Iceland did not save its three largest banks, financial bailouts of smaller institutions have indeed not come cheap, probably costing Iceland 20-25% of its GDP and still counting. (Comparable cost in Ireland is 40%, in the UK 5%). This cost has hardly been mentioned at all in Iceland and has only recently become clear.

An ESA overview of all relevant actions re its case is here.

*When a national court seeks the opinion of the EFTA Court, a so called Note for Guidance, this opinion is for guidance only. An EFTA Court judgement is, like a High Court ruling, not only advisory. As is stated in the Agreement between the EFTA States on the Establishment of a Surveillance Authority and a Court of Justice  (ESA/Court Agreement) (main part), article 33: “The EFTA States concerned shall take the necessary measures to comply with the judgments of the EFTA Court.” In other words, an EFTA State has to comply with the judgements of the EFTA Court.

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Written by Sigrún Davídsdóttir

January 26th, 2013 at 10:34 pm

Posted in Iceland

Warming up for the Icesave judgement – updated

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Alors, on Monday January 28 the EFTA Court will rule in the Icesave case, which ESA applied to put to the court.

The thrust of the case is:

The EFTA Surveillance Authority submits that by failing to ensure payment of the minimum amount of compensation to Icesave depositors in the Netherlands and in the United Kingdom within the time limits laid down in Directive 94/19/EC, Iceland has failed to comply with its obligations arising under Articles 3(1), 4(1), 7(1) and 10(1) of Directive 94/19/EC. Additionally or in the alternative, the EFTA Surveillance Authority submits that Iceland has breached the prohibition on discrimination on grounds of nationality under Article 4 EEA. 

Having studied some EFTA Court judgments where ESA is the applicant it is fair to conclude that it is not promising to be on the receiving end of an ESA action: ESA almost never loses a case as ESA is clearly most careful in choosing and preparing its action. But ESA will not win its case on statistics – and it is notoriously difficult to gauge a judgement.

I have not met a single informed person, unrelated to the Icelandic case, who thinks that Iceland is likely to win but there is not much debate on the issue in Iceland right now. The heat is out of the Icesave issue in Iceland.

One Icelander has however aired his strong view, president Olafur Ragnar Grimsson. He used an interview with Sky in Davos today to send icy regards to former Prime Minister Gordon Brown (whom Grimsson might run into in the Davos corridors of power) and his Government at the time for putting Iceland on a list of countries harbouring terrorism when Landsbanki assets were frozen following the collapse of the Icelandic banks.

Correct, this was a harsh action, caused Iceland and Icelandic companies serious problems and it is difficult to see it was necessary – but it doesn’t only show Brown’s panic at a time when some British banks were teetering on the brink of collapse. It also shows an extreme frustration within the British Government and Whitehall, built up over more than half a year, by lack of reaction from the Icelandic banks to demands by the FSA and by lack of understanding – so as not to say misleading information – from the Icelandic Government. Grimsson did not mention this rather unflattering part of the Icesave Saga. The UK authorities took action – albeit brutal and harsh – and saved Icelandic authorities from themselves closing down the banks.

The presentation made by the Icelandic Government during 2008, until the banks collapsed in early October, is spelled out here (see paragraph 26-30)in the ESA application to the EFTA Court. This is one of ESA’s arguments for its case.

But even if the Court rules in favour of ESA Monday will not mark an end to the Icesave saga. The Court will only rule on a yes/no to alleged failures by the Icelandic Government to comply with EU directives and the EEA Agreement. It will not order Iceland to anything. However, the judgement will no doubt be used by the British and Dutch Government to knock on the door of the Icelandic Ministry of Finance to remind Icelanders that well, Iceland still hasn’t paid what these two countries think they are owed.

Iceland’s refusal to pay the Icesave debt has, misleadingly been presented as a popular uprising against bailing out banks. The debt to the two Governments arose as they bailed out depositors in Icesave – not banks, bankers or bondholders. Deposit holders who may well argue that they kept their money in Icesave because they heard Icelandic politicians, for example in this Channel 4 report, as well as bankers, tell them that their money was save and Iceland had a deposit guarantee scheme, just like the UK and the Netherlands.

At the hour of extreme national anxiety the Icelandic Government made the understandable decision to secure domestic deposit holders. But that hour has long passed and the UK and the Netherlands think it is high time to get their money back.

*See earlier Iceogs on Icesave here. Here is the ESA page with all relevant information re the ESA Icesave case.

Updated: According to Sky Grimsson said the judgement will only be advisory, and that “it will not lead to any financial obligations or transactions of any sort”. – As far as I know, an EFTA Court judgement is all but advisory. It is the final say in our earthly realm of reality – there is no other court that can rule on a breach of EU directive/EEA Agreement or not, for an EEA country.


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Written by Sigrún Davídsdóttir

January 23rd, 2013 at 9:53 pm

Posted in Iceland

Cyprus and Iceland – and the fight against corruption

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A small island, with a banking sector eight times its GDP, weak supervision, foreign money flowing in and some Russian connections. Iceland or Cyprus? Both.

With Cyprus now struggling to finalise bailout terms it is interesting to reflect on how similar the two islands are. In early October 2008, as the Icelandic banks were crashing, the Governor of the Icelandic Central Bank David Oddsson (leader of the conservatives 1991-2005, prime minister 1991-2004, CBI Governor 2005-2009, now editor or Morgunbladid) stunned the nation and the international community by announcing that Iceland did not need to turn to the IMF – Russia was willing to lend Iceland, apparently enough to pull the country out of financial quagmire.

Interestingly, this loan never materialised nor was it clear how or why the offer was made. Apparently the Russian ambassador did mediate the offer but then did not have the backing in Kremlin he either had understood or misunderstood he had. There is no lack of rumours as to why Kremlin might have been interested in bailing out the Icelandic government and who stood behind this. It is only safe to assume that the offer is unlikely to have been a fabrication of the staunchly conservative Oddsson but does indeed indicate some Russian interests in the Icelandic banks.

With Cyprus, Russian money flow and it is clear that there are huge Russian interests at stake. The Russian interests materialised in December 2011 when Russia lent Cyprus €2.5bn, maturing in 2016. Until last autumn, Cyprus seemed to hope for further €5bn from Russia but it now seems clear – at least for the time being – that more is not forthcoming from that part of the world.

The island has, through close contacts for many decades, been the chosen port into Europe for Russian money – also the money rising from dodgy privatisation deals and the oligarchs. Among those who made use of Cypriot money route are Bjorgolfur Thor Bjorgolfsson and his father Bjorgolfur Gudmundsson, who used money made in Russia in the ‘90s to buy Landsbanki; father and son have had companies registered in Cyprus.

It is clear that Cypriot supervision of the financial sector was more than lacking when it comes to supervising the flow of money from Russia and elsewhere. It seems fair to assume that there is money in Cypriot companies whose beneficial owners are unknown and money in Cypriot banks untested by the “know your customer” rule.

The key programme objective number 1, according to the Memorandum of Understanding is:

to restore the soundness of the Cypriot banking sector by thoroughly restructuring, resolving and downsizing financial institutions, strengthening of supervision, addressing expected capital shortfall and improving liquidity management;

But there is nothing specific on how this should be done, what is the target and how this will be verified. And there is nothing about the corruption thought to hover over the Cypriot banks, enabling the flow of dirty money into the tiny island economy. After all, why do funds float to countries like Cyprus – and for that matter Luxembourg – if not to do something that cannot be achieved in the more mature economies of Europe (though it is an uncomfortable thought why rich Russians are now so prominent in London)?

I have earlier stressed the correlation between the Eurozone crisis and corruption. Cyprus fits the case. It is an uncomfortable thought that the European Union might – yet again – close its eyes to corruption and deal with the Cypriot banks as if they were all about cricket and fair play.

Fortunately, most articles on the Cyprus bailout mention the Russian money, lastly articles in NYTimes, by Thomas Landon and James Kanter, who quotes Olli Rehn saying that a precondition for aid is that Cyprus needs to adopt “new laws against money laundering.”

If the EU insists on something more than just constructing some Potemkin villages, a bailout will hardly happen any time soon. Even after the next presidential election in February – a term now often mentioned – seems too soon. The euro was put in precarious conditions when EU postponed for two years to deal properly with Greece. Cyprus, with a GDP of around €20bn, is a much smaller problem and postponing a bailout there will hardly have Greek-portioned consequences.

Corrupt money is not just about ethics and morale but about the lethal effect of corrupt money management. If nothing is done now regarding the Cypriot banks, it is yet another victory for evil forces, which ultimately distort competition and crowd out healthy companies.

*An earlier Icelog on Cyprus is here, with links to documents such as the Memorandum of Understanding and IMF data on Cyprus – and here is an earlier blog, linked to an article of mine on Le Monde Diplomatique English website, on the correlation between crisis and corruption.

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Written by Sigrún Davídsdóttir

January 13th, 2013 at 8:55 pm

Posted in Iceland

Whistleblowers, how to avoid the “big brother” computer systems

with 5 comments

The other day, talking to a friend who is interested in computer systems and how to obtain data, he told me a thing I hadn’t heard of and found very fascinating. In some of the groundbreaking whistleblower stories of recent years the data was acquired in a very clever way.

As everyone who knows anything about computers is aware of it’s very difficult to copy things from a computer system without this being logged somehow and somewhere. In other words, it’s neigh impossible to copy or print without leaving a traceable path.

Alors, what does a person – let’s say a banker or someone working for a pharmaceutical company, just to simplify the story – who is itching to share some interesting information on an organisation he/she thinks is doing something that shouldn’t be done? Well, this person just picks up his/her mobile phone and takes photos of the information on the screen. Data obtained in this way has already figured in some well-known cases.

This very simple way doesn’t leave a trace and employers can’t very well point cameras at all staff. The answer might be a thin distorting film on the computer screen that makes it impossible to take photos of anything on the screen. But so far, that’s not a standard. This simple trick of photographing the screen must send shiver down the spine of all those working on security and of all those who think information can’t be ripped from their computer systems.

This simple action is cutely retro: it’s the same technique as used during the Cold War and in classic spy stories.

Not that I would exhort anyone to steal information – just reporting what I heard, #just saying.

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Written by Sigrún Davídsdóttir

January 5th, 2013 at 10:44 pm

Posted in Iceland

Oral hearings in the Aurum case start Monday January 7

with 2 comments

One of the most spectacular lending stories from the collapsed Icelandic banks, from Glitnir, comes up in the Reykjavik District Court as oral hearings in the Aurum case start Monday January 7. This is essentially a story how Glitnir’s two main shareholders – Jon Asgeir Johannesson and his long-time business partner Palmi Haraldsson – got a loan of ISK6bn, ca €35.5m, from the bank and ended up getting rid of the loan by selling, for 1 krona, the company where the debt was placed (yes, this sounds crazy but this was Icelandic banking for favoured clients pre-collapse).

Those charged are Johannesson, for  exerting undue influence on Glitnir CEO Larus Welding and Bjarni Johannesson who managed Glitnir’s business relations with Johannesson and his companies. A third Glitnir employee, Magnus Arnar Arngrimsson is also being charged. The charges relate to the three Glitnir employee regard breach of fiduciary duty.

From these ISK6bn it is alleged that Johannsson and Haraldsson each personally got ISK1bn whereas the whole amount was lost to the bank. The loan saga is recounted in an earlier Icelog. Here is further to the charges brought now by the Office of the Special Prosecutor and here is an earlier log on Aurum, also connected to an international freezing order, which the Glitnir ResCom secured against Johannesson in the summer of 2010. Earlier, the Glitnir ResCom brought a case against Johanesson and Glitnir managers for losses caused by the Aurum lending.

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Written by Sigrún Davídsdóttir

January 4th, 2013 at 4:04 pm

Posted in Iceland

Icesave: the EFTA Court Icesave judgement decision January 28

with 2 comments

The long-awaited judgement in the Icesave case, the action brought by the EFTA Surveillance Authority against Iceland, is due at 11.30 on January 28 in Luxembourg where the EFTA Court resides.

The thrust of the case is:

The EFTA Surveillance Authority submits that by failing to ensure payment of the minimum amount of compensation to Icesave depositors in the Netherlands and in the United Kingdom within the time limits laid down in Directive 94/19/EC, Iceland has failed to comply with its obligations arising under Articles 3(1), 4(1), 7(1) and 10(1) of Directive 94/19/EC. Additionally or in the alternative, the EFTA Surveillance Authority submits that Iceland has breached the prohibition on discrimination on grounds of nationality under Article 4 EEA. 

Much has been said and written and about this dispute and it is excellent that ESA took action so as to clarify the issues at stake. In addition, a clarification of a state’s obligation regarding the deposit guarantee scheme is of European and general interest.

Here is a link to earlier Icelogs on Icesave.

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Written by Sigrún Davídsdóttir

January 4th, 2013 at 2:58 pm

Posted in Iceland