Action brought on 20 September 2023 – Evroins inshurans grup v EIOPA
(Case T-586/23)
Language of the case: English
Parties
Applicant: Evroins inshurans grup AD (Sofia, Bulgaria) (represented by: A. Morogai, H. Drăghici and F. Giurgea, lawyers)
Defendant: European Insurance and Occupational Pensions Authority
Form of order sought
The applicant claims that the Court should:
annul the Decision given by the Board of Appeal of the European Supervisory Authorities (‘the Board of Appeal’) of 19 July 2023 (BoA-D-2023-02), as updated by that Board of Appeal on 25 July 2023 (‘Decision BoA-D-2023-02’), and, consequently,
annul the Report on 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-23-149) of 28 March 2023 issued by EIOPA (‘the EIOPA Report’) or, in the alternative, order the Board of Appeal to re-assess the applicant’s appeal against the EIOPA Report;
order the European Supervisory Authorities and EIOPA to pay to Euroins the ensuing costs related to this procedure.
Pleas in law and main arguments
In support of the action, the applicant relies on five main pleas in law.
First plea in law, alleging that the Board of Appeal breached Regulation (EU) No 1094/2010 of the European Parliament and of the Council, 1 Directive 2009/138/EC of the European Parliament and of the Council 2 and the Board of Appeal’s Procedural Rules:
the Board of Appeal erred in law when it established that the EIOPA Report does not represent a decision in the meaning of the Regulation No 1094/2010.
the Board of Appeal erred in law when it established that the EIOPA Report does not represent a ‘decision’ in the meaning of the case law of the Court of Justice of the European Union.
the Board of Appeal failed to observe that the provisions of Directive 2009/138 lead to the conclusion that within this legal act there is no specific power granted to EIOPA to assess/evaluate/verify an insurer’s technical provisions gross and net of reinsurance. Moreover, such ‘power’ was vested exclusively and solely with the Member States through their national supervisory authorities.
Second plea in law, alleging that the Decision BoA-D-2023-02 was issued in breach of the general principles of EU law:
decision BoA-D-2023-02 was issued in breach of the principle of proportionality. The Board of Appeal did not verify the compliance of the EIOPA Report against the settled case law of the Court of Justice of the European Union, mainly if the said report was suitable and necessary to attain the objective pursued;
decision BoA-D-2023-02 was issued in breach of the principle of equal treatment, mainly because the Board of Appeal failed to consider whether EIOPA acted in a non-objective and discriminatory manner towards the applicant;
as an application of the principle of protection of legitimate expectations, by report to the case law of the Court of Justice of the European Union, the applicant had a legitimate expectation that no assessment will be initiated and carried on by EIOPA itself;
the principle of effective judicial protection applies not only to the enforcement of EU law, but also to the protection of rights conferred by EU law. However, the right to address the Board of Appeal was not effective because the said board refused to properly assess the real nature of the EIOPA Report and to check its actual implications.
Third plea in law, alleging that Decision BoA-D-2023-02 was issued in breach of the Charter of Fundamental Rights of the European Union (‘the Charter’).
The provisions of Article 47 of the Charter were not respected because the applicant’s right to appeal against the EIOPA Report in front of the Board of Appeal was illusory, thus not effective, due to the fact that the Board of Appeal did not proceed to a judicious assessment of the facts and evidence provided by the applicant.
Fourth plea in law, alleging that Decision BoA-D-2023-02 was issued with misuse of the Board of Appeal’s powers when rejecting the appeal due to the inadmissibility.
Joint interpretation of certain aspects included within Decision BoA-D-2023-02 could conduct to the conclusion that the legal construction of the Board of Appeal in Decision BoA-D-2023-02 is rather circular and concludes that the EIOPA Report is not a decision in the meaning of Regulation No 1094/2010, without offering sufficient substantiation and reference to admitted evidence.
Fifth plea in law, alleging that the EIOPA Report was issued in excess of EIOPA’s powers as regulated by Directive 2009/138 and Regulation No 1094/2010.
By initiating and carrying out the assessment of the valuation of technical provisions gross and net of reinsurance, EIOPA acted in excess of its regulated competence under Regulation No 1094/2010 and beyond its legal power and authority. EIOPA acted in contradiction to its mandated mission of ensuring supervisory convergence across the European Union.
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1 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).
1 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).