16 October 2024 (*)

( Action for annulment – EIOPA assessment report on the company Euroins Romania Asigurare-Reasigurare – Act not open to challenge – Inadmissibility )

In Case T‑416/23,

Evroins inshurans grup AD,

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

applicant,

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), acting as President, I. Gâlea and T. Toth, Judges,

Registrar: V. Di Bucci,

having regard to the written part of the procedure,

makes the following

1By its action based on Article 263 TFEU, the applicant, Evroins inshurans grup AD, seeks annulment of the report of the European Insurance and Occupational Pensions Authority (EIOPA) dated 28 March 2023 and headed ‘EIOPA’s assessment of the valuation of technical provisions gross and net of reinsurance for the motor third party liability portfolio of Euroins Romania Asigurare-Reasigurare SA’ (EIOPA-23-129)(‘the contested report’).

Background to the dispute

2The applicant is a Bulgarian limited 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.

3For 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 Комисия за финансов надзор (Financial Supervision Commission, Bulgaria) (‘the Bulgarian supervisory authority’) 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) (recast) (OJ 2009 L 335, p.1) (‘the Solvency II Directive’).

4On 30 January 2023, the Romanian supervisory authority asked EIOPA to share its view on a complex quota share reinsurance treaty, which covered Euroins Romania’s motor third party liability portfolio, and on the methodology used by Euroins Romania for the computation of the best estimate of liabilities.

5On 8 February 2023, the Bulgarian supervisory authority sought EIOPA’s view on the measure taken by the Romanian supervisory authority in respect of Euroins Romania. It also requested, inter alia, an external review of Euroins Romania’s technical provisions and reinsurance cover.

6By letter of 9 February 2023, EIOPA responded to the Romanian supervisory authority, stating that, on the basis of Article 8(1)(b) 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), it would perform an assessment of the aspects described in the letter sent to it by that authority.

7By letter of 13 February 2023, EIOPA responded to the Bulgarian supervisory authority, stating that it would carry out, on the basis of Article 8(1)(b) of Regulation No 1094/2010, an assessment of the findings and adjustments performed by the Romanian supervisory authority as regards Euroins Romania, with a view to assessing the correct and consistent application of the Solvency II Directive.

8On 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, lodged an application for a declaration of insolvency.

9On 28 March 2023, EIOPA adopted the contested 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. That report, which was shared on the same day only with the Romanian and Bulgarian supervisory authorities, found that Euroins Romania had a deficiency of between [confidential]. (1)

10On 11 April 2023, Euroins Romania challenged the withdrawal decision before the Curtea de Apel Bucureşti (Court of Appeal, Bucharest, Romania).

11The applicant and Euroins Romania also brought interlocutory proceedings before the Curtea de Apel Bucureşti (Court of Appeal, Bucharest), seeking to suspend the effect of the withdrawal decision pending the main proceedings. That application was rejected on 27 April 2023, without the contested report, submitted by the Romanian supervisory authority, having been accepted as evidence on the ground that it had been finalised after that decision.

12On 16 May 2023, the applicant brought an appeal against the contested report before the Board of Appeal of the European Supervisory Authorities, pursuant to Article 60 of Regulation No 1094/2010.

13On 19 July 2023, the Board of Appeal of the European Supervisory Authorities dismissed the appeal as inadmissible on the ground that the contested report did not constitute a challengeable act for the purposes of Article 263 TFEU.

Forms of order sought

14In essence, the applicant claims that the Court should:

–annul the contested report.

15EIOPA contends that the Court should:

–dismiss the action as inadmissible; and

–order the applicant to pay the costs.

Law

The definition of the subject matter of the action

16In the form of order sought in the application, in addition to its application for annulment of the contested report, the applicant also formally submits three other heads of claim, by which it asks the Court to find that EIOPA, first, exceeded its regulatory powers with regard to the contested report, second, infringed its rights and those of Euroins Romania and acted in an excessive and discriminatory manner and, third, infringed the principles of proportionality, independence, objectivity and transparency. EIOPA contends that those three heads of claim are inadmissible.

17The Court notes that, according to settled case-law, in the context of an action for annulment, claims seeking only a finding as to matters of fact or law cannot, in themselves, constitute valid claims (see judgment of 22 September 2021, Al-Imam v Council, T‑203/20, EU:T:2021:605, paragraph 42 (not published) and the case-law cited).

18In the present case, the Court notes, as EIOPA does, that the three heads of claim referred to in paragraph 16 above merely repeat pleas in law which its puts forward in support of the action for annulment of the contested report and do not therefore constitute actual heads of claim.

19It follows that, as stated in paragraph 14 above, the present action must be regarded as seeking, in essence, the annulment of the contested report.

Admissibility of the action

20Under Article 130(1) and (7) of the Rules of Procedure of the General Court, on the application of the defendant, the Court may decide on inadmissibility or lack of competence without going to the substance of the case. In the present case, as EIOPA has applied for a decision on inadmissibility, the Court, finding that it has sufficient information from the documents in the case file, has decided to rule on that application without taking further steps in the proceedings.

21EIOPA submits that the present action is inadmissible in that, first, the contested report does not constitute a challengeable act for the purposes of Article 263 TFEU and, second, the applicant does not have standing to bring proceedings.

22The applicant disputes the plea of inadmissibility raised by EIOPA, claiming that the contested report does constitute a challengeable act for the purposes of Article 263 TFEU. First, it argues that, in addition to changing Euroins Romania’s status into an establishment which was not complying with the requirements laid down by the Solvency II Directive, that report gives concrete expression to a delegation of power by the Romanian supervisory authority to EIOPA in the context of its supervisory activity, with the result that the report at issue must be regarded as binding or, at the very least, capable of producing binding legal effects under the principle of sincere cooperation between the national authorities and EIOPA. Second, it objects to the classification of that report as a ‘technical report’, since no provision of the relevant legislation provides for the possibility for EIOPA to adopt such a report. Third, it maintains that the publication of the report in question and its dissemination in the press affect its position, both economically and legally. Fourth, it submits that an action for annulment is the only means by which it may challenge the report in question, since the report is not open to challenge before the national courts. Fifth, it states that such a report must be classified as an ‘act capable of producing binding legal effects’, since the Romanian supervisory authority itself classified it as an ‘expert report’ in interlocutory proceedings brought before the national court.

23According to settled case-law, an action for annulment is available against all measures adopted by the institutions, bodies, offices or agencies of the Union, whatever their nature or form, which are intended to have binding legal effects capable of affecting the interests of the applicant by bringing about a distinct change in the legal position of the applicant (see, to that effect, judgments of 11 November 1981, IBM v Commission, 60/81, EU:C:1981:264, paragraph 9; of 26 January 2010, Internationaler Hilfsfonds v Commission, C‑362/08 P, EU:C:2010:40, paragraph 51; and of 19 December 2012, Commission v Planet, C‑314/11 P, EU:C:2012:823, paragraph 94).

24As is apparent from the case-law of the Courts of the European Union, in order to determine whether an act produces legal effects, it is necessary to look, in particular, to the substance of that act and to the intention of those who drafted it (see, to that effect, judgment of 17 July 2008, Athinaïki Techniki v Commission, C‑521/06 P, EU:C:2008:422, paragraph 42) and to assess those effects on the basis of objective criteria, such as the content of that act, taking into account, as appropriate, the context in which it was adopted and the powers of the institution which adopted the act (see judgment of 22 April 2021, thyssenkrupp Electrical Steel and thyssenkrupp Electrical Steel Ugo v Commission, C‑572/18 P, EU:C:2021:317, paragraph 48 and the case-law cited).

25In the present case, the Court notes, as a preliminary point, that the applicant’s line of argument amounts in essence to a submission that, in its opinion, the contested report produces binding legal effects both on the withdrawal decision and on the interlocutory proceedings before the national court seeking to suspend the effects of that decision.

26The Court notes at the outset that the contested report was adopted and sent to the Romanian and Bulgarian supervisory authorities on a date after the date on which the withdrawal decision was adopted. That withdrawal decision was adopted by the Romanian supervisory authority on 17 March 2023, and that report was adopted on 28 March 2023.

27In addition, the Court points out, as EIOPA did, that the Romanian court hearing the interlocutory proceedings seeking to suspend the effects of the withdrawal decision refused to admit the contested report as evidence in those interlocutory proceedings.

28In those circumstances, the applicant cannot reasonably claim that the contested report had binding legal effects in respect of the withdrawal decision or in respect of the decision of the Romanian court hearing the interlocutory proceedings seeking suspension of the effects of that decision.

29As regards the content of the contested report, it is apparent from that report that it consists of an evaluation of the technical provisions gross and net of reinsurance for the motor third party liability portfolio of Euroins Romania. It merely establishes that Euroins Romania had a deficiency on the basis of the data transmitted to EIOPA by the Romanian supervisory authority.

30Moreover, the contested report does not contain any recommendations on the measures to be adopted vis-à-vis Euroins Romania. On the contrary, on page 7 of that report, it states that it is be read without prejudice to the competence of the Romanian supervisory authority for the supervision of Euroins Romania.

31As regards the context in which the contested report was adopted, it is apparent from the documents before the Court that that report resulted, first, from a request from the Romanian supervisory authority put to EIOPA regarding Euroins Romania’s compliance with the requirements laid down by the Solvency II Directive and, second, from a call from the Bulgarian supervisory authority asking EIOPA to share its view on the findings and adjustments made by the Romanian supervisory authority with regard to Euroins Romania.

32It should also be noted that, in its emails sending the contested report to the national authorities, EIOPA asked those authorities to provide it with their views on the impact of EIOPA’s findings in that report.

33As regards EIOPA’s powers, it stated on several occasions that the contested report was adopted on the basis of Article 8(1) (b) of Regulation No 1094/2010, which is worded as follows:

‘[EIOPA] shall have the following tasks:

…

(b) to contribute to the consistent application of legally binding Union acts, in particular by contributing to a common supervisory culture, ensuring consistent, efficient and effective application of the legislative acts referred to in Article 1(2), preventing regulatory arbitrage, fostering and monitoring supervisory independence, mediating and settling disagreements between competent authorities, ensuring effective and consistent supervision of financial institutions, ensuring a coherent functioning of colleges of supervisors, and taking actions, inter alia, in emergency situations’.

34In addition, the Court notes that the contested report was sent to the Romanian and Bulgarian supervisory authorities with a view to assessing the correct and consistent application of the legal framework under the Solvency II Directive and to ensure adequate protection of policyholders and beneficiaries. EIOPA thus acted in the context of its tasks of contributing to the consistent, efficient and effective application of that directive.

35As regards EIOPA’s intention, the contested report was prepared in order to provide an impartial, independent and objective assessment of Euroins Romania’s financial situation on the basis of the evidence provided by the Romanian supervisory authority. As stated in paragraph 30 above, that report preserves the Romanian supervisory authority’s discretion.

36Therefore, it follows from the above that the contested report is merely a ‘technical report’ which includes factual findings and estimates of Euroins Romania’s situation and which forms part of a framework of cooperation between the Romanian supervisory authority and EIOPA on how the Solvency II Directive is to be applied to the present situation of Euroins Romania. Having regard, moreover, to the legal basis of that report and the aims of EIOPA, it cannot be regarded as a binding legal act, either vis-à-vis the Romanian supervisory authority or vis-à-vis Euroins Romania.

37In those circumstances, the Court holds that the contested report does not produce binding legal effects for the purposes of Article 263 TFEU.

38That finding is not called into question by the applicant’s other arguments.

39First, contrary to what the applicant claims, the contested report cannot give concrete expression to a delegation of power from the Romanian supervisory authority to EIOPA. Under Article 28 of Regulation No 1094/2010, a delegation of power requires an agreement between the delegating authority and the authority to whom power is to be delegated, whereas, in the present case, the national authority merely asked EIOPA to share its technical evaluation as far as concerns Euroins Romania’s situation.

40Second, the Romanian supervisory authority was not bound by the contested report by virtue of the principle of sincere cooperation laid down in Article 4(3) TEU. Although the Romanian supervisory authority was in principle required to take into account the conclusions of that report, it was not however bound to the findings made by EIOPA. Additionally, as was noted in paragraph 26 above, that report was adopted after the withdrawal decision and therefore could not have had any binding effect on that Romanian supervisory authority in the context of the adoption of that decision.

41Third, as regards the applicant’s argument that the publication of the contested report has adversely affected its legal and economic position, it need only be observed that, even if the dissemination of that report did have adverse consequences for the applicant, that does not in any way demonstrate that that report produces binding legal effects capable of affecting the applicant’s interests within the meaning of the case-law cited in paragraph 23 above.

42Fourth, the applicant is incorrect to claim that an action for annulment is the only means by which it can challenge the lawfulness of the contested report. In that regard, judicial review of compliance with the EU legal order is ensured, as is apparent from Article 19(1) TEU, not only by the Court of Justice but also by the courts and tribunals of the Member States. The FEU Treaty has, by Articles 263 and 277 TFEU, on the one hand, and Article 267 TFEU, on the other, established a complete system of legal remedies and procedures designed to ensure judicial review of the legality of EU acts, and has entrusted such review to the Courts of the European Union (see judgment of 25 February 2021, VodafoneZiggo Group v Commission, C‑689/19 P, EU:C:2021:142, paragraph 143, and the case-law cited). In addition, references for a preliminary ruling on validity constitute, like actions for annulment, means for reviewing the legality of EU acts (see judgment of 25 February 2021, VodafoneZiggo Group v Commission, C‑689/19 P, EU:C:2021:142, paragraph 143 and the case-law cited). It must be pointed out that where a national court or tribunal considers that one or more arguments for invalidity of an EU act, put forward by the parties or, as the case may be, raised by it of its own motion, are well founded, it is incumbent upon it to stay proceedings and to make a reference to the Court of Justice for a preliminary ruling on the act’s validity, the Court alone having jurisdiction to declare an EU act invalid, and that Article 267 TFEU confers on the Court jurisdiction to deliver a preliminary ruling on the validity and interpretation of all acts of the EU institutions without exception (see judgment of 25 February 2021, VodafoneZiggo Group v Commission, C‑689/19 P, EU:C:2021:142, paragraph 144, and the case-law cited).

43Even though Article 263 TFEU excludes the review, by the EU Courts, of acts which have no binding legal effects, such as the contested report, the Court may, pursuant to Article 267 TFEU, assess the validity of such acts when it gives a preliminary ruling (see, to that effect, judgment of 15 July 2021, FBF, C‑911/19, EU:C:2021:599, paragraph 54 and the case-law cited).

44Moreover, while an act not in the nature of a decision, such as the contested report, cannot be the subject of an action for annulment under Article 263 TFEU, individuals are not deprived of access to justice where such conduct affects their interests, in so far as that conduct may be such as to give rise to non-contractual liability on the part of the European Union and thus form the basis of an action for damages under Articles 268 and the second paragraph of Article 340 TFEU (see, to that effect, judgments of 15 January 2003, Philip Morris International v Commission, T‑377/00, T‑379/00, T‑380/00, T‑260/01 and T‑272/01, EU:T:2003:6, paragraph 123, and of 4 October 2006, Tillack v Commission, T‑193/04, EU:T:2006:292, paragraph 98).

45Fifth, contrary to what the applicant claims, the classification of the contested report as a ‘technical report’, carried out by EIOPA in the context of the interlocutory proceedings brought at national level, is irrelevant as regards whether that report is capable of producing binding legal effects.

46Therefore, in view of the content of the contested report, the context in which it was adopted, and the powers and intention of EIOPA, that report is not capable of producing binding legal effects and does not therefore constitute a challengeable act for the purposes of Article 263 TFEU.

47Accordingly, the plea of inadmissibility raised by EIOPA must be upheld and, consequently, the action must be dismissed as inadmissible, without it being necessary to rule on the other ground of inadmissibility raised by EIOPA.

Costs

48Under 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 EIOPA.

On those grounds,

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.

Luxembourg, 16 October 2024.

Registrar

President

—

Language of the case: English.

(1) Confidential information redacted.