Order of the General Court (First Chamber) of 26 March 2025

Uitspraak

ORDER OF THE GENERAL COURT (First Chamber)

26 March 2025 (^*)

( Action for annulment – Request to initiate an investigation – Refusal by EIOPA – Act not open to challenge – Inadmissibility )

In Case T‑1094/23,

Evroins inshurans grup AD, established in Sofia (Bulgaria), represented by H. Drăghici, A. Morogai and F. Giurgea, lawyers,

applicant,

v

European Insurance and Occupational Pensions Authority (EIOPA), represented by S. Rosenbaum and S. Dispiter, acting as Agents, and by H.‑G. Kamann, Z. Mzee and F. Boos, lawyers,

defendant,

THE GENERAL COURT (First Chamber),

composed of R. Mastroianni (Rapporteur), President, I. Gâlea and T. Tóth, Judges,

Registrar: V. Di Bucci,

having regard to the written part of the procedure,

makes the following

Order

1        By its action based on Article 263 TFEU, the applicant, Evroins inshurans grup AD, seeks annulment of the letter of the European Insurance and Occupational Pensions Authority (EIOPA) of 19 September 2023, bearing reference EIOPA-23-719 on the initiation of an investigation under Article 17 of Regulation (EU) No 1094/2010 of the European Parliament and of the Council of 24 November 2010 establishing a European Supervisory Authority [(EIOPA)], amending Decision No 716/2009/EC and repealing Commission Decision 2009/79/EC (OJ 2010 L 331, p. 48) (‘the contested letter’).

 Background to the dispute

2        The applicant is a Bulgarian joint stock company with its registered office in Sofia (Bulgaria). It owns almost all the shares in Euroins Romania Asigurare – Reasigurare SA (‘Euroins Romania’), an insurance undertaking domiciled in Romania.

3        For the purposes of the supervision of a group which includes the applicant, a college of supervisors composed of the Autoritatea de Supraveghere Financiară (Financial Supervisory Authority, Romania) (‘the Romanian supervisory authority’) and the Komisiya za finansov nadzor (Financial Supervision Commission, Bulgaria) was put in place within the meaning of Article 212(1)(e) of Directive 2009/138/EC of the European Parliament and of the Council of 25 November 2009 on the taking-up and pursuit of the business of Insurance and Reinsurance (Solvency II) (OJ 2009 L 335, p. 1).

4        On 17 March 2023, the Romanian supervisory authority adopted a decision withdrawing Euroins Romania’s operating licence (‘the withdrawal decision’) and, after verifying that that company was insolvent, requested the initiation of its winding up and the appointment of the Romanian Insurers’ Guarantee Fund as interim administrator.

5        On 24 March 2023, the applicant contacted EIOPA to raise its concerns regarding a potential breach of EU law by the Romanian supervisory authority. In particular, the applicant stated that (i) the withdrawal decision infringed Directive 2009/138, (ii) the actions and behaviour of the Romanian supervisory authority breached the general administrative principles of the European Union, (iii) the actions of that supervisory authority were disproportionate and (iv) the actions taken by that supervisory authority with regard to Euroins Romania had been mutually contradictory.

6        On 28 March 2023, EIOPA adopted a report, which contained its assessment concerning the valuation of technical provisions gross and net of reinsurance for the motor third-party liability portfolio of Euroins Romania (‘the EIOPA report’).

7        On 11 April 2023, Euroins Romania challenged the withdrawal decision before the Curtea de Apel Bucureşti (Court of Appeal, Bucharest, Romania).

8        On 16 May 2023, the applicant brought an appeal against the EIOPA report before the Board of Appeal of the European supervisory authorities, pursuant to Article 60 of Regulation No 1094/2010.

9        By application lodged at the Registry of the General Court on 18 July 2023, the applicant brought an action, registered as Case T‑416/23, seeking the annulment of the EIOPA report. By order of 16 October 2023, Evroins inshurans grup v EIOPA (T‑416/23, not published, EU:T:2024:708), the General Court dismissed the action as inadmissible.

10      Following email exchanges between the applicant and EIOPA during the period between March and August 2023, the chairperson of that authority adopted the contested letter on 19 September 2023.

11      By the contested letter, notified to the applicant by email of 20 September 2023, the chairperson of EIOPA decided that an investigation in respect of a breach of EU law against the Romanian supervisory authority would not be appropriate and closed the applicant’s request without initiating an investigation.

 Forms of order sought

12      The applicant claims that the Court should:

–        annul the contested letter;

–        order EIOPA to reassess its request to initiate an investigation regarding a potential breach of EU law by the Romanian supervisory authority.

13      EIOPA contends that the Court should:

–        dismiss the action as inadmissible;

–        order the applicant to pay the costs.

 Law

14      Pursuant to Article 130(1) and (7) of the Rules of Procedure of the General Court, if the defendant so requests, the Court may give a decision on inadmissibility or lack of competence without going to the substance of the case. In the present case, since EIOPA has requested a ruling on the inadmissibility of the action, the Court, finding that it has sufficient information from the documents in the case file, has decided to give a ruling on that request without taking further steps in the proceedings.

15      EIOPA contends that the present action is inadmissible. As regards the first head of claim, EIOPA submits, first, that the contested letter does not constitute a challengeable act for the purposes of Article 263 TFEU and, second, that the applicant does not have standing to bring proceedings. As regards the second head of claim, EIOPA submits that the General Court does not have jurisdiction to issue directions.

16      The applicant disputes the plea of inadmissibility raised by EIOPA, claiming that the contested letter constitutes a challengeable act for the purposes of Article 263 TFEU.

17      As regards the admissibility of its second head of claim, the applicant is of the view that the request to order EIOPA to reassess the complaint relating to the breach of EU law is a consequence of the annulment of the contested letter and is not to be construed as an independent action brought before the General Court.

 Admissibility of the first head of claim, seeking annulment of the contested letter

18      EIOPA contends that the contested letter does not constitute a challengeable act for the purposes of Article 263 TFEU, since it has, in accordance with Article 17(2) of Regulation No 1094/2010, a broad discretion to deal with a potential breach of EU law, and that individuals cannot require it to adopt a specific position, including by initiating a procedure under Article 17(2) of Regulation No 1094/2010. EIOPA further submits that the first head of claim is inadmissible also because Article 17(2) of Regulation No 1094/2010 does not grant procedural rights comparable to those provided for in Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles [101] and [102 TFEU] (OJ 2003 L 1, p. 1).

19      The applicant disputes EIOPA’s arguments. It claims that the contested letter constitutes a challengeable act for the purposes of Article 263 TFEU, since it fulfils the conditions for it to be classified as an act producing binding legal effects. In the first place, the applicant claims that the contested letter is an act which lays down in a definite manner EIOPA’s position following an investigation procedure, in which that authority decides on the lawfulness of the actions of the Romanian supervisory authority and their compliance with EU law and rejects its rights and interests in putting an end to the unlawful acts of that authority. In the second place, the applicant submits that, even if that act were to be regarded as an act informing it of EIOPA’s ‘discretion’ not to initiate an investigation, such discretion should have been exercised within certain procedural limits and should have been reasoned.

20      In addition, as regards its standing to bring proceedings, the applicant submits that the contested letter is an act addressed to it and which is of direct and individual concern to it. In the alternative, the applicant submits that that act is, in any event, challengeable, since (i) EIOPA infringed its obligation to state reasons and (ii) it consists in a misuse of powers on the part of that authority.

21      In that regard, it should be recalled that, according to the case-law, any measures adopted by the institutions, bodies, offices and agencies of the European Union, whatever their form, which are intended to have binding legal effects, are regarded as acts open to challenge, for the purposes of Article 263 TFEU (judgment of 31 March 1971, Commission v Council, 22/70, EU:C:1971:32, paragraph 42; see, also, judgment of 13 October 2011, Deutsche Post and Germany v Commission, C‑463/10 P and C‑475/10 P, EU:C:2011:656, paragraph 36 and the case-law cited).

22      It also follows from settled case-law that, where an EU institution, body, office or agency is not bound to initiate a procedure, but has a discretion which excludes the right for individuals to require it to adopt a specific position, it is not open to persons who have lodged a complaint to bring an action before the EU judicature against a decision to take no further action on their complaint. That possibility would arise only if those persons had procedural rights, comparable to those they might have in the case of a procedure under Regulation No 1/2003, enabling them to require that institution, body, office or agency to inform them and to grant them a hearing (see judgment of 9 September 2015, SV Capital v EBA, T‑660/14, EU:T:2015:608, paragraph 48 and the case-law cited).

23      Actions brought by natural or legal persons against the European Commission’s refusal (i) to initiate a procedure for a declaration of failure to fulfil obligations under Article 258 TFEU (order of 17 July 1998, Sateba v Commission, C‑422/97 P, EU:C:1998:395, paragraph 42), (ii) to bring an action under Article 106(3) TFEU (judgment of 22 February 2005, Commission v max.mobil, C‑141/02 P, EU:C:2005:98, paragraphs 68 to 70) and (iii) to examine complaints put forward for failure to respect merger decisions (judgment of 9 October 2018, 1&1 Telecom v Commission, T‑43/16, EU:T:2018:660, paragraphs 37 to 49) have thus been declared inadmissible. Similarly, the action brought against EIOPA’s refusal of a request for an investigation to be initiated under Article 17 of Regulation No 1094/2010 was declared inadmissible (order of 24 June 2016, Onix Asigurări v EIOPA, T‑590/15, EU:T:2016:374, paragraphs 50 to 57).

24      In the present case, it is common ground that the applicant submitted a request to EIOPA pursuant to Article 17 of Regulation No 1094/2010. That provision provides EIOPA with a mechanism for dealing with breaches of EU law by the national authorities in their supervisory activities. Accordingly, Article 17(1) provides that ‘where a competent authority has not applied the acts referred to in Article 1(2) [of Regulation No 1094/2010] or has applied them in a way which appears to be a breach of Union law, including the regulatory technical standards and implementing technical standards established in accordance with Articles 10 to 15 [of that regulation], in particular by failing to ensure that a financial institution satisfies the requirements laid down in those acts, [EIOPA] shall act in accordance with the powers set out in paragraphs 2, 3 and 6 of this Article.’

25      Article 17(2), (3) and (6) of Regulation No 1094/2010 sets out three stages to the mechanism enabling EIOPA to deal with breaches of EU law by the national authorities in their supervisory activities. In particular, Article 17(2) provides that, ‘upon a request from one or more competent authorities, the European Parliament, the Council, the Commission or the relevant stakeholder group, or on its own initiative and after having informed the competent authority concerned, [EIOPA] may investigate the alleged breach or non-application of Union law.’

26      It is thus apparent from Article 17(2) of Regulation No 1094/2010 and, in particular, from the use of the verb ‘may’, that EIOPA has a discretionary power in respect of investigations, both when it receives a request from one of the bodies expressly referred to in that provision and when it acts on its own initiative (order of 24 June 2016, Onix Asigurări v EIOPA, T‑590/15, EU:T:2016:374, paragraph 53).

27      It follows that EIOPA is not in any way required to act pursuant to Article 17 of Regulation No 1094/2010.

28      That interpretation is also consistent with EIOPA’s objectives and tasks as well as with the general scheme of the mechanism established by Article 17 of Regulation No 1094/2010. According to Article 1(6) of that regulation, the objective of EIOPA is to protect the public interest by contributing to the short-, medium- and long-term stability and effectiveness of the financial system, for the EU economy, its citizens and businesses. In addition, it is clear from recital 26 of Regulation No 1094/2010 that the mechanism established by Article 17 of that regulation is intended to ensure (i) the integrity, transparency, efficiency and orderly functioning of financial markets, (ii) the stability of the financial system, and (iii) neutral conditions of competition for financial institutions in the European Union. Ensuring the correct and full application of EU law is a core prerequisite for these purposes. In other words, the objective of that mechanism is not to provide individual protection or redress in disputes between a natural or legal person and a competent authority at the national level (order of 24 June 2016, Onix Asigurări v EIOPA, T‑590/15, EU:T:2016:374, paragraph 55).

29      In the light of those factors, it must be noted that the lodging of a request such as that made by the applicant in the present case does not create any special legal relationship between the applicant and EIOPA and cannot require that authority to carry out an investigation under Article 17(2) of Regulation No 1094/2010.

30      In those circumstances, contrary to the applicant’s arguments, it must be held that the refusal decision does not produce binding legal effects. In particular, since the applicant could not require EIOPA to initiate an investigation under Article 17(2) of Regulation No 1094/2010, EIOPA’s refusal to initiate such a procedure on its own initiative was not capable of affecting the applicant’s interests by bringing about a distinct change in its legal position.

31      Accordingly, the contested letter cannot be classified as a challengeable act for the purposes of Article 263 TFEU.

32      In the light of the foregoing considerations, the applicant’s first head of claim seeking annulment of the contested letter must be rejected as manifestly inadmissible, without it being necessary to examine the applicant’s arguments relating to compliance with the obligation to state reasons and to EIOPA’s alleged misuse of powers.

33      In those circumstances, and without it being necessary to examine the admissibility of the second head of claim, the plea of inadmissibility raised by EIOPA must be upheld and, consequently, the action must be dismissed as inadmissible in its entirety.

 Costs

34      Under Article 134(1) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the applicant has been unsuccessful, it must be ordered to bear its own costs and to pay those incurred by EIOPA, in accordance with the form of order sought by the latter.

On those grounds,

THE GENERAL COURT (First Chamber)

hereby orders:

1.      The action is dismissed as inadmissible.

2.      Evroins inshurans grup AD shall bear its own costs and pay those incurred by the European Insurance and Occupational Pensions Authority (EIOPA).

Luxembourg, 26 March 2025.