Action brought on 2 April 2024 – Novis v Commission

(Case T-179/24)

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 and S. Henrich, lawyers)

Defendant: European Commission

Form of order sought

The applicant claims that the Court should:

annul the formal opinion C(2022)6455 final taken by the defendant dated 13 September 2022 (‘the contested act’), 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 has failed to allow the applicant to be heard prior to adopting the contested act.

As the defendant kept the contested act 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 in contrary only learned about the contested act adopted by the defendant from the defendant’s press release of 13 September 2022, which constitutes an infringement of the applicant’s right to be heard pursuant to Article 41(2)(a) of the Charter.

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 which constitutes an infringement of the applicant’s fundamental right to access files as guaranteed by 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 exercise of discretionary powers.

As the defendant kept the contested act and its preparation secret from the applicant, the defendant failed to uphold the basic principles of fair administrative procedures, including the participation rights of the applicant, and the fair exercise of discretionary powers which constitutes a violation of the right to impartial treatment, in particular the duty of care in the preparation of administrative decisions, Article 41(1) of the Charter. The defendant based its contested act exclusively on the information provided by the national competent authority, Národná Banka Slovenska (‘the national competent authority’), and the European Insurance and Occupational Pensions Authority (‘the EIOPA’). Verifying the information obtained by the EIOPA and/or the national competent authority would have been of particular importance with regard to the existential consequences of the contested act for the applicant.

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 and its preparation secret from the applicant, the defendant unlawfully undermined 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 defendant simultaneously infringes upon the applicant’s fundamental right to an effective remedy and to a fair proceeding guaranteed in Article 47 of the Charter.

Fifth plea in law, alleging the infringement of Article 17 of Regulation (EU) No 1094/2010 of the European Parliament and of the Council ¹ as the defendant has failed to sufficiently investigate, establish, and appraise the relevant facts on basis of which the contested act was rendered.

Article 17(3), (4) and (7) of Regulation No 1094/2010 provides for an indirect three-tier process, with responsibilities of EIOPA, the defendant 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 investigate properly.

Sixth plea in law, alleging that the contested act constitutes a misuse of powers by overstepping the inherent limits of its powers under Article 17 of Regulation No 1094/2010.

By consciously issuing a de facto decision with a specific instruction to the national competent authority to revoke a specific undertaking’s license [instead of proceeding with a decision by the EIOPA under Article 17(6) of Regulation No 1094/2010 or a procedure under Article 258 TFEU], the defendant consciously ignored that formal opinions 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).