11 October 2024 (*)

( Interim relief – European System of Financial Supervisors – Mechanism enabling EIOPA to deal with breaches of EU law by the national authorities in their supervisory activities – Decision not to open an investigation – Refusal of a request not to publish a decision – Application for suspension of operation of a measure – Failure to comply with procedural requirements – Inadmissibility )

In Case T‑367/24 R,

Evroins inshurans grup AD,

established in Sofia (Bulgaria), represented by H. Drăghici and F. Giurgea, lawyers,

applicant,

European Insurance and Occupational Pensions Authority (EIOPA),

represented by S. Rosenbaum, A. Terstegen-Verhaag and S. Dispiter, acting as Agents, and by H.-G. Kamann, Z. Mzee and F. Boos, lawyers,

defendant,

makes the following

By its application based on Articles 278 and 279 TFEU, the applicant, Evroins inshurans grup AD, seeks suspension of the operation of Decision BoA-O-2024-03 of the Board of Appeal of the European Supervisory Authorities of 24 June 2024 refusing a request not to publish the decision given in the context of an appeal that the applicant brought against the decision of the European Insurance and Occupational Pensions Authority (EIOPA) of 19 September 2023 until the General Court has delivered a final decision in the main proceedings (‘the contested decision’).

Background to the dispute and forms of order sought

The applicant is a company governed by Bulgarian law. It holds 98.57% of the shares in Euroins Romania Asigurare-Reasigurare S.A.

On 17 March 2023, the Autoritatea de Supraveghere Financiarã (Financial Supervisory Authority, Romania) withdrew the operating licence of Euroins Romania Asigurare-Reasigurare. It also decided to initiate the winding-up of that financial institution and to appoint the Romanian Insurers’ Guarantee Fund as interim administrator of that financial institution.

On 4 August 2023, in a letter sent to EIOPA, the applicant raised its concerns regarding the general compliance of the actions of the Romanian Financial Supervisory Authority with EU law. In that context, it requested that EIOPA initiate an investigation.

By letter of 19 September 2023, EIOPA informed the applicant that an investigation into a possible infringement of EU law against the Romanian Financial Supervisory Authority would not be appropriate and closed the applicant’s request (EIOPA-23-719).

On 20 November 2023, the applicant brought an action before the Court for annulment of the decision of EIOPA of 19 September 2023, registered as Case T‑1094/23.

On the same day, the applicant also brought an appeal before the Board of Appeal of the European Supervisory Authorities, pursuant to Article 60 of Regulation (EU) No 1094/2010 of the European Parliament and of the Council of 24 November 2010 establishing a European Supervisory Authority (European Insurance and Occupational Pensions Authority), amending Decision No 716/2009/EC and repealing Commission Decision 2009/79/EC (OJ 2010 L 331, p. 48), against the decision of EIOPA of 19 September 2023.

On 11 March 2024, the Board of Appeal of the European Supervisory Authorities issued Decision BoA-D-2024-02 declaring the appeal brought by the applicant against the decision of EIOPA of 19 September 2023 (‘Decision BoA-D-2024-02’) inadmissible.

On 19 March 2024, the applicant requested that the Board of Appeal of the European Supervisory Authorities not make Decision BoA-D-2024-02 available to the public.

On 11 May 2024, the applicant brought an action before the Court for annulment of Decision BoA-D-2024-02, registered as Case T‑247/24.

On 24 June 2024, the Board of Appeal of the European Supervisory Authorities communicated the contested decision to the applicant.

By application lodged at the General Court Registry on 18 July 2024, the applicant brought an action for, inter alia, annulment of the contested decision.

By separate document, lodged at the Court Registry on 19 July 2024, the applicant made the present application for interim measures, in which it claims that the President of the General Court should:

–order that the operation of the contested decision be suspended;

and, consequently,

–order the Board of Appeal of the European Supervisory Authorities not to publish, in whole or in part, Decision BoA-D-2024-02.

In its observations on the application for interim measures, lodged at the Court Registry on 1 August 2024, EIOPA contends that the President of the General Court should:

–dismiss the application for interim measures;

–order the applicant to pay the costs.

It is apparent from reading Articles 278 and 279 TFEU together with Article 256(1) TFEU that the judge hearing an application for interim measures may, if he or she considers that the circumstances so require, order that the operation of a measure challenged before the General Court be suspended or prescribe any necessary interim measures, having regard to the rules of admissibility laid down in Article 156 of the Rules of Procedure of the General Court.

The first sentence of Article 156(4) of the Rules of Procedure provides that applications for interim measures are to state ‘the subject matter of the proceedings, the circumstances giving rise to urgency and the pleas of fact and law establishing a prima facie case for the interim measure applied for’.

The judge hearing an application for interim relief may order suspension of operation of an act and other interim measures, if it is established that such an order is justified, prima facie, in fact and in law, and that it is urgent in so far as, in order to avoid serious and irreparable harm to the applicant’s interests, it must be made and produce its effects before a decision is reached in the main action. Those conditions are cumulative, and consequently an application for interim measures must be dismissed if any one of them is not satisfied. The judge hearing an application for interim relief is also to undertake, when necessary, a weighing of the competing interests (see order of 2 March 2016, Evonik Degussa v Commission, C‑162/15 P-R, EU:C:2016:142, paragraph 21 and the case-law cited).

Furthermore, under Article 156(5) and Article 76(d) of the Rules of Procedure, an application for interim measures must, in particular, be made by a separate document, indicate the subject matter of the proceedings and contain a summary of the pleas in law and arguments relied on.

It follows from a combined reading of Article 156(4) and (5) and Article 76(d) of the Rules of Procedure that an application for interim measures must be sufficient in itself to enable the defendant to prepare its defence and the judge hearing the application to rule on it, where necessary, without other supporting information. In order to ensure legal certainty and the proper administration of justice, it is necessary, if such an application is to be admissible, that the essential elements of fact and law on which it is founded be set out coherently and comprehensibly in the application for interim measures itself. While the application may be supported and supplemented on specific points by references to particular passages in documents which are annexed to it, a general reference to other written documentation, even if annexed to the application for interim measures, cannot make up for the absence of essential elements in that application (see order of 4 December 2015, E‑Control v ACER, T‑671/15 R, not published, EU:T:2015:975, paragraph 8 and the case-law cited).

Moreover, point 223 of the Practice Rules for the Implementation of the then applicable Rules of Procedure expressly states that the application for interim measures must be intelligible in itself, without necessitating reference to the application lodged in the main proceedings, including the annexes thereto.

Since failure to comply with the Rules of Procedure constitutes an absolute bar to proceedings, it is for the judge hearing the application for interim measures to examine, if necessary of his or her own motion, whether the applicable provisions of those rules have been complied with (see order of 14 February 2020, Vizzone v Commission, T‑658/19 R, not published, EU:T:2020:71, paragraph 11 and the case-law cited).

In the present case, it should be noted that, in the application for interim measures, the applicant puts forward no arguments in respect of the condition relating to the existence of a prima facie case.

The applicant merely sets out, in the application for interim measures, the pleas in law relied on in support of the action for annulment.

Such an absence of arguments does not enable the judge hearing the application for interim measures to make a legal assessment of whether the pleas for annulment relied on in the application in the main action are prima facie well founded.

Contrary to what it claims in paragraph 46 of the application for interim measures, the few assertions put forward by the applicant for the purpose of establishing that the condition relating to a prima facie case is satisfied do not enable the judge hearing the application for interim measures to assess whether the contested decision appears to be vitiated by irregularities and whether there is a prima facie case in favour of the applicant.

It follows that the application for interim measures is not intelligible in itself without referring to the application in the main proceedings.

That absence of sufficient explanation, in the application for interim measures, of the constituent elements of a possible prima facie case cannot be compensated for by a reference to the application in the main proceedings.

In that regard, it is sufficient to note that it is not for the judge hearing the application for interim measures to seek, in place of the party concerned, those matters contained in the annexes or in the application in the main proceedings which would support the application for interim measures. For such an obligation to be imposed on the judge hearing the application for interim measures would, moreover, render ineffective the provision of the Rules of Procedure which requires that the application for interim measures be made by a separate document (see, to that effect, order of 29 July 2010, Cross Czech v Commission, T‑252/10 R, not published, EU:T:2010:323, paragraph 15 and the case-law cited).

It follows that, as regards the condition relating to the existence of a prima facie case, the present application for interim measures does not comply with the requirements laid down in Article 156(4) and (5) of the Rules of Procedure.

It follows from all of the foregoing that the present application for interim measures must be dismissed as inadmissible.

Under Article 158(5) of the Rules of Procedure, the costs are to be reserved.

On those grounds,

hereby orders:

1.The application for interim measures is dismissed.

2.The costs are reserved.

Luxembourg, 11 October 2024.

Registrar

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Language of the case: English.