Action brought on 12 April 2024 – Novis v EIOPA

(Case T-204/24)

Language of the case: English

Parties

Applicant: Novis Insurance Company, Novis Versicherungsgesellschaft, Novis Compagnia di Assicurazioni, Novis Poisťovňa a.s. (Bratislava, Slovakia) (represented by: A. Börner, S. Förster and S. Henrich, lawyers)

Defendant: European Insurance and Occupational Pensions Authority

Form of order sought

The applicant claims that the Court should:

annul the EIOPA’s recommendation n° EIOPA-BoS-22-293 (Ref. Ares(2022)4118763) dated 16 (or 17) May 2022 (‘the contested act’) relating to a breach of Union law proceedings, against the national competent authority Národná Banka Slovenska (‘the national competent authority’); and

order the defendant to bear all costs of the proceedings.

Pleas in law and main arguments

In support of the action, the applicant relies on six pleas in law.

First plea in law, alleging the infringement of the applicant’s right to be heard pursuant to Article 41(2)(a) of the Charter of Fundamental Rights of the European Union (‘the Charter’).

As the defendant kept the contested act, which despite its formal classification as recommendation amounts to a de facto decision, and its preparation secret from the applicant, the applicant was not informed and was not given the opportunity to acquaint itself of the underlying facts and information and only learned about the contested act much later. As the contested act was specifically aimed at the revocation of its insurance license, the applicant must be regarded as a ‘named addressee’ within the meaning of Article 39(1) of Regulation (EU) No 1094/2010 of the European Parliament and of the Council. ¹ In light of the defendant’s failures and omissions, the decision taken in the contested act constitutes an infringement of Articles 17(3) and 39(1) of Regulation No 1094/2010 when interpreted in conformity with Article 41(2)(a) of the Charter as primary law of the Union, and the applicant’s right to be heard enshrined therein.

Second plea in law, alleging the infringement of the applicant’s right to access the defendant’s files pursuant to Article 41(2)(b) of the Charter.

As the defendant kept the contested act and its preparation secret from the applicant, the defendant prevented the applicant’s access to files concerning the applicant. As the contested act is a consequence of this omission, the decision taken by means of the contested act constitutes an infringement of the applicant’s fundamental right to access files as enshrined in Article 41(2)(b) of the Charter.

Third plea in law, alleging the infringement of the applicant’s right to a fair administrative procedure, including the participation rights of the applicant pursuant to Article 41(1) and (2) of the Charter, and the fair exercise of discretionary powers.

The defendant kept the contested act and its preparation secret from the applicant, and, without considering the existential consequences of the contested act for the applicant, based its contested act exclusively on the information provided by the national competent authority without further verification with the applicant. This constitutes an infringement of Article 17(2) and (3) and of Article 35(6) of Regulation No 1094/2010 when interpreted in conformity with Article 41(1) and (2) of the Charter as primary law of the Union, as well as an infringement of the basic principles of fair administrative procedures, including the participation rights of the applicant, and the fair exercise of discretionary powers and the right to impartial treatment enshrined therein.

Fourth plea in law, alleging the infringement of the applicant’s right to an effective remedy and to a fair trial pursuant to Article 47(1) of the Charter.

As the defendant kept the contested act, its preparation and its reasons secret from the applicant, and by undermining the applicant’s options to exercise its fundamental right to be heard and access files as enshrined in Article 41(2)(a) and (b) of the Charter, the contested act itself infringes upon the applicant’s fundamental right to an effective remedy and to a fair proceeding enshrined in Article 47 of the Charter and Article 39(1), (2) and (3) of Regulation No 1094/2010.

Fifth plea in law, alleging the infringement of Article 17 of Regulation No 1094/2010.

Article 17(3), (4) and (7) of Regulation No 1094/2010 provide for an indirect three-tier process, with responsibilities of the defendant, the Commission and the national competent authority which are split, overlapping and even duplicated between the three bodies. In spite of clear indications of the increased risk of miscommunication and errors and the grave consequences of the contested act, the defendant failed to sufficiently investigate, establish, and appraise the relevant facts on the basis of which the contested act was rendered.

Sixth plea in law, alleging the contested act to constitute a misuse of powers.

By consciously issuing a de facto decision with a specific instruction to the national competent authority to revoke the applicant’s license, the defendant consciously ignored that recommendations shall not be binding under Article 288(5) TFEU and materially overstepped the inherent limits of its powers under Article 17 of Regulation No 1094/2010. This constitutes a misuse of power under Union law.

____________

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).