# 62015TO0590

ORDER OF THE GENERAL COURT (Second Chamber)

24 June 2016 (
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  )

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‛Action for failure to act, for annulment and for damages — Application for an investigation to be initiated into alleged infringement of EU law — Decision of the Chair of EIOPA not to initiate an investigation — Decision of the Board of Appeal to dismiss the complaint as inadmissible — Time limits for bringing proceedings — Act not open to challenge — Infringement of essential procedural requirements — Action in part manifestly inadmissible and in part manifestly lacking any legal basis’

In Case T‐590/15,

Onix Asigurări SA, established in Bucharest (Romania), represented by M. Vladu,

Onix Asigurări SA

applicant,

v

European Insurance and Occupational Pensions Authority (EIOPA), represented by C. Coucke and S. Dispiter, acting as Agents, assisted by H.-G. Kamman, lawyer,

European Insurance and Occupational Pensions Authority (EIOPA)

defendant,

First, primarily, an application based on Article 265 TFEU seeking a declaration that EIOPA illegally failed to take a decision against the incorrect application, by the Istituto per la Vigilanza sulle Assicurazioni (IVASS, the Italian supervisory authority for the insurance sector), of Article 40(6) of Council Directive 92/49/EEC of 18 June 1992 on the coordination of laws, regulations and administrative provisions relating to direct insurance other than life assurance and amending Directives 73/239/EEC and 88/357/EEC (third non-life insurance Directive) (OJ 1992 L 228, p. 1) and, in the alternative, an application based on Article 263 TFEU and seeking annulment of the decision EIOPA-14-267 of the Chair of EIOPA dated 6 June 2014 on the initiation of an investigation under Article 17 of Regulation (EU) No 1094/2010 of the European Parliament and of the Council of 24 November 2010 establishing a European Supervisory Authority (EIOPA), amending Decision No 716/2009/EC and repealing Commission Decision 2009/79/EC (OJ 2010 L 331, p. 48), and of Decision BOA 2015 001 of the Board of Appeal dated 3 August 2015, rejecting as inadmissible an appeal brought by Onix Asigurări under Article 60 of Regulation No 1094/2010 and, secondly, an application based on Article 268 TFEU and seeking compensation in respect of the harm allegedly suffered by the applicant on account of the abovementioned omission and the adoption of those decisions.

THE GENERAL COURT (Second Chamber),

composed of M.E. Martins Ribeiro (Rapporteur), President, S. Gervasoni and L. Madise, Judges,

Registrar: E. Coulon,

makes the following

Order

Order

Legal context

Legal context

| 1 | The European Insurance and Occupational Pensions Authority (EIOPA) was established by Regulation (EU) No 1094/2010 of the European Parliament and of the Council of 24 November 2010, amending Decision No 716/2009/EC and repealing Commission Decision 2009/79/EC (OJ 2010 L 331, p. 48). |
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1

The European Insurance and Occupational Pensions Authority (EIOPA) was established by Regulation (EU) No 1094/2010 of the European Parliament and of the Council of 24 November 2010, amending Decision No 716/2009/EC and repealing Commission Decision 2009/79/EC (OJ 2010 L 331, p. 48).

| 2 | In accordance with Article 1(2) and (3) of Regulation (EU) No 1092/2010 of the European Parliament and of the Council of 24 November 2010 on European Union macro-prudential oversight of the financial system and establishing a European Systemic Risk Board (OJ 2010 L 331, p. 1), EIOPA is part of the European System of Financial Supervision (ESFS), the purpose of which is to ensure the supervision of the European Union’s financial system. |
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2

In accordance with Article 1(2) and (3) of Regulation (EU) No 1092/2010 of the European Parliament and of the Council of 24 November 2010 on European Union macro-prudential oversight of the financial system and establishing a European Systemic Risk Board (OJ 2010 L 331, p. 1), EIOPA is part of the European System of Financial Supervision (ESFS), the purpose of which is to ensure the supervision of the European Union’s financial system.

| 3 | The ESFS also includes two other European supervisory authorities, the European Banking Authority (EBA), established by Regulation (EU) No 1093/2010 of the European Parliament and of the Council of 24 November 2010, amending Decision No 716/2009/EC and repealing Commission Decision 2009/78/EC (OJ 2010 L 331, p. 12), and the European Securities and Markets Authority (ESMA), established by Regulation (EU) No 1095/2010 of the European Parliament and of the Council of 24 November 2010, amending Decision No 716/2009/EC and repealing Commission Decision 2009/77/EC (OJ 2010 L 331, p. 84). The ESFS also comprises a Joint Committee of the European Supervisory Authorities, as well as the competent or supervisory authorities of the Member States. |
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3

The ESFS also includes two other European supervisory authorities, the European Banking Authority (EBA), established by Regulation (EU) No 1093/2010 of the European Parliament and of the Council of 24 November 2010, amending Decision No 716/2009/EC and repealing Commission Decision 2009/78/EC (OJ 2010 L 331, p. 12), and the European Securities and Markets Authority (ESMA), established by Regulation (EU) No 1095/2010 of the European Parliament and of the Council of 24 November 2010, amending Decision No 716/2009/EC and repealing Commission Decision 2009/77/EC (OJ 2010 L 331, p. 84). The ESFS also comprises a Joint Committee of the European Supervisory Authorities, as well as the competent or supervisory authorities of the Member States.

| 4 | Article 1(2) of Regulation No 1094/2010 provides that EIOPA is to act within the powers conferred by that regulation and within the scope of the acts referred to in that paragraph, including, inter alia, Council Directive 92/49/EEC of 18 June 1992 on the coordination of laws, regulations and administrative provisions relating to direct insurance other than life assurance and amending Directives 73/239/EEC and 88/357/EEC (third non-life insurance Directive) (OJ 1992 L 228, p.1). Under Article 1(6) of that regulation, the objective of EIOPA is to protect the public interest by contributing to the short, medium and long-term stability and effectiveness of the financial system, for the Union economy, its citizens and businesses. |
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4

Article 1(2) of Regulation No 1094/2010 provides that EIOPA is to act within the powers conferred by that regulation and within the scope of the acts referred to in that paragraph, including, inter alia, Council Directive 92/49/EEC of 18 June 1992 on the coordination of laws, regulations and administrative provisions relating to direct insurance other than life assurance and amending Directives 73/239/EEC and 88/357/EEC (third non-life insurance Directive) (OJ 1992 L 228, p.1). Under Article 1(6) of that regulation, the objective of EIOPA is to protect the public interest by contributing to the short, medium and long-term stability and effectiveness of the financial system, for the Union economy, its citizens and businesses.

| 5 | Article 17 of Regulation No 1094/2010 provides EIOPA with a mechanism for dealing with breaches of Union law by the national authorities in their supervisory activities. Article 17(2), (3) and (6) of Regulation No 1094/2010 sets up a mechanism for that purpose consisting of three stages. Under Article 17(1) and (2) of the regulation:
  ‘1.   Where a competent authority has not applied the acts referred to in Article 1(2), or has applied them in a way which appears to be a breach of Union law, including the regulatory technical standards and implementing technical standards established in accordance with Articles 10 to 15, in particular by failing to ensure that a financial institution satisfies the requirements laid down in those acts, [EIOPA] shall act in accordance with the powers set out in paragraphs 2, 3 and 6 of this Article.
  2.   Upon a request from one or more competent authorities, the European Parliament, the Council, the Commission or the relevant stakeholder group, or on its own initiative and after having informed the competent authority concerned, [EIOPA] may investigate the alleged breach or non-application of Union law.
  Without prejudice to the powers laid down in Article 35, the competent authority shall, without delay, provide [EIOPA] with all information which [EIOPA] considers necessary for its investigation.’ |
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5

Article 17 of Regulation No 1094/2010 provides EIOPA with a mechanism for dealing with breaches of Union law by the national authorities in their supervisory activities. Article 17(2), (3) and (6) of Regulation No 1094/2010 sets up a mechanism for that purpose consisting of three stages. Under Article 17(1) and (2) of the regulation:

‘1.   Where a competent authority has not applied the acts referred to in Article 1(2), or has applied them in a way which appears to be a breach of Union law, including the regulatory technical standards and implementing technical standards established in accordance with Articles 10 to 15, in particular by failing to ensure that a financial institution satisfies the requirements laid down in those acts, [EIOPA] shall act in accordance with the powers set out in paragraphs 2, 3 and 6 of this Article.

2.   Upon a request from one or more competent authorities, the European Parliament, the Council, the Commission or the relevant stakeholder group, or on its own initiative and after having informed the competent authority concerned, [EIOPA] may investigate the alleged breach or non-application of Union law.

Without prejudice to the powers laid down in Article 35, the competent authority shall, without delay, provide [EIOPA] with all information which [EIOPA] considers necessary for its investigation.’

| 6 | Article 60 of Regulation No 1094/2010 lists the types of appeals that can be brought before the Board of Appeal of the European Supervisory Authorities (‘the Board of Appeal’). That article reads as follows:
  ‘1.   Any natural or legal person, including competent authorities, may appeal against a decision of [EIOPA] referred to in Articles 17, 18 and 19 and any other decision taken by [EIOPA] in accordance with the Union acts referred to in Article 1(2) which is addressed to that person, or against a decision which, although in the form of a decision addressed to another person, is of direct and individual concern to that person.
  ...
  4.   If the appeal is admissible, the Board of Appeal shall examine whether it is well founded. It shall invite the parties to the appeal proceedings to file observations on its own notifications or on communications from the other parties to the appeal proceedings, within specified time limits. Parties to the appeal proceedings shall be entitled to make oral representations.
  ...’ |
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6

Article 60 of Regulation No 1094/2010 lists the types of appeals that can be brought before the Board of Appeal of the European Supervisory Authorities (‘the Board of Appeal’). That article reads as follows:

‘1.   Any natural or legal person, including competent authorities, may appeal against a decision of [EIOPA] referred to in Articles 17, 18 and 19 and any other decision taken by [EIOPA] in accordance with the Union acts referred to in Article 1(2) which is addressed to that person, or against a decision which, although in the form of a decision addressed to another person, is of direct and individual concern to that person.

...

4.   If the appeal is admissible, the Board of Appeal shall examine whether it is well founded. It shall invite the parties to the appeal proceedings to file observations on its own notifications or on communications from the other parties to the appeal proceedings, within specified time limits. Parties to the appeal proceedings shall be entitled to make oral representations.

...’

| 7 | According to Article 61(1) to 61(3) of Regulation (EC) No 1094/2010:
  ‘1.   Proceedings may be brought before the Court of Justice of the European Union, in accordance with Article 263 TFEU, contesting a decision taken by the Board of Appeal or, in cases where there is no right of appeal before the Board of Appeal, by [EIOPA].
  2.   Member States and the Union institutions, as well as any natural or legal person, may institute proceedings before the Court of Justice of the European Union against decisions of [EIOPA], in accordance with Article 263 TFEU.
  3.   In the event that [EIOPA] has an obligation to act and fails to take a decision, proceedings for failure to act may be brought before the Court of Justice of the European Union in accordance with Article 265 TFEU.’ |
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7

According to Article 61(1) to 61(3) of Regulation (EC) No 1094/2010:

‘1.   Proceedings may be brought before the Court of Justice of the European Union, in accordance with Article 263 TFEU, contesting a decision taken by the Board of Appeal or, in cases where there is no right of appeal before the Board of Appeal, by [EIOPA].

2.   Member States and the Union institutions, as well as any natural or legal person, may institute proceedings before the Court of Justice of the European Union against decisions of [EIOPA], in accordance with Article 263 TFEU.

3.   In the event that [EIOPA] has an obligation to act and fails to take a decision, proceedings for failure to act may be brought before the Court of Justice of the European Union in accordance with Article 265 TFEU.’

Background to the dispute

Background to the dispute

| 8 | The applicant, Onix Asigurări SA, is an insurance company governed by Romanian law and having its registered office in Romania. It carries out its activities in several EU Member States, including the Italian Republic. |
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8

The applicant, Onix Asigurări SA, is an insurance company governed by Romanian law and having its registered office in Romania. It carries out its activities in several EU Member States, including the Italian Republic.

| 9 | By a decision of 20 December 2013, the Istituto per la Vigilanza sulle Assicurazioni (IVASS, the Italian supervisory authority for the insurance sector) prohibited the applicant indefinitely from entering into new insurance contracts (‘the IVASS decision’). The reasons given for that decision, which was taken in accordance with the Codice delle assicurazioni private (Code of private insurance), implementing Article 40 of the third non-life insurance Directive, were serious concerns on the part of IVASS over the reputation of the applicant’s sole shareholder. |
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9

By a decision of 20 December 2013, the Istituto per la Vigilanza sulle Assicurazioni (IVASS, the Italian supervisory authority for the insurance sector) prohibited the applicant indefinitely from entering into new insurance contracts (‘the IVASS decision’). The reasons given for that decision, which was taken in accordance with the Codice delle assicurazioni private (Code of private insurance), implementing Article 40 of the third non-life insurance Directive, were serious concerns on the part of IVASS over the reputation of the applicant’s sole shareholder.

| 10 | On 5 February 2014, the applicant sent a letter to EIOPA. In that letter, the applicant informed EIOPA of the IVASS decision and set out the reasons why, in its opinion, the decision was in breach of EU law. In essence, it alleged that IVASS was not competent to assess the reputation of its shareholder and that Article 40(6) of the third non-life insurance Directive did not apply. That letter was treated by EIOPA as a complaint made under Article 17 of Regulation No 1094/2010. |
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10

On 5 February 2014, the applicant sent a letter to EIOPA. In that letter, the applicant informed EIOPA of the IVASS decision and set out the reasons why, in its opinion, the decision was in breach of EU law. In essence, it alleged that IVASS was not competent to assess the reputation of its shareholder and that Article 40(6) of the third non-life insurance Directive did not apply. That letter was treated by EIOPA as a complaint made under Article 17 of Regulation No 1094/2010.

| 11 | Following an exchange of emails over the period from March to May 2014 between the applicant and EIOPA, the Chair of EIOPA made two decisions on 6 June 2014. |
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11

Following an exchange of emails over the period from March to May 2014 between the applicant and EIOPA, the Chair of EIOPA made two decisions on 6 June 2014.

| 12 | First, by Decision EIOPA-14-266 on the admissibility of a complaint made under Article 17 of Regulation No 1094/2010, the applicant’s complaint was found to be admissible. |
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12

First, by Decision EIOPA-14-266 on the admissibility of a complaint made under Article 17 of Regulation No 1094/2010, the applicant’s complaint was found to be admissible.

| 13 | Secondly, by Decision EIOPA-14-267 on the initiation of an investigation under Article 17 of Regulation (EU) No 1094/2010, the Chair of EIOPA decided not to initiate an investigation into a possible breach of EU law by IVASS (‘the refusal decision’). The reasoning in that decision states that, although under Article 40(6) of the third non-life insurance Directive, the competent authorities of Member States can take emergency measures to prevent irregularities within their territories, the scope and limits of that power are defined under national law, subject to the review powers of the national courts. In addition, the same decision stated that there were no grounds upon which to allege a breach by IVASS of the third non-life insurance Directive. |
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13

Secondly, by Decision EIOPA-14-267 on the initiation of an investigation under Article 17 of Regulation (EU) No 1094/2010, the Chair of EIOPA decided not to initiate an investigation into a possible breach of EU law by IVASS (‘the refusal decision’). The reasoning in that decision states that, although under Article 40(6) of the third non-life insurance Directive, the competent authorities of Member States can take emergency measures to prevent irregularities within their territories, the scope and limits of that power are defined under national law, subject to the review powers of the national courts. In addition, the same decision stated that there were no grounds upon which to allege a breach by IVASS of the third non-life insurance Directive.

| 14 | Those decisions were communicated to the applicant by an email of 12 June 2014. |
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14

Those decisions were communicated to the applicant by an email of 12 June 2014.

| 15 | On 18 June 2014, the applicant sent a letter to the Chair of EIOPA in response to the refusal decision, requesting that the decision be annulled and that an investigation be initiated under Article 17 of Regulation No 1094/2010 for breach of EU law on the part of IVASS. In essence, the applicant reiterated its argument that IVASS was not competent to assess the reputation of its shareholder, as that assessment could only be made by the Romanian authorities. |
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15

On 18 June 2014, the applicant sent a letter to the Chair of EIOPA in response to the refusal decision, requesting that the decision be annulled and that an investigation be initiated under Article 17 of Regulation No 1094/2010 for breach of EU law on the part of IVASS. In essence, the applicant reiterated its argument that IVASS was not competent to assess the reputation of its shareholder, as that assessment could only be made by the Romanian authorities.

| 16 | Over the period from June to November 2014, the applicant and EIOPA exchanged various emails. In particular, in an email of 2 October 2014, EIOPA responded to the applicant’s substantive arguments and clarified the position set out in the refusal decision. The applicant responded by letter of 8 October 2014. |
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16

Over the period from June to November 2014, the applicant and EIOPA exchanged various emails. In particular, in an email of 2 October 2014, EIOPA responded to the applicant’s substantive arguments and clarified the position set out in the refusal decision. The applicant responded by letter of 8 October 2014.

| 17 | By an email of 3 November 2014, the applicant informed EIOPA that, if it did not receive a response by 15 November 2014 in relation to the initiation of a procedure under Article 17 of Regulation No 1094/2010, it would bring proceedings before the Court of Justice of the European Union pursuant to Article 61 of that regulation. |
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17

By an email of 3 November 2014, the applicant informed EIOPA that, if it did not receive a response by 15 November 2014 in relation to the initiation of a procedure under Article 17 of Regulation No 1094/2010, it would bring proceedings before the Court of Justice of the European Union pursuant to Article 61 of that regulation.

| 18 | In a letter of 24 November 2014, EIOPA referred to the applicant’s letter of 8 October 2014 and ‘confirm[ed] again that [its] position in relation to [the refusal decision] remain[ed] unchanged’. |
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18

In a letter of 24 November 2014, EIOPA referred to the applicant’s letter of 8 October 2014 and ‘confirm[ed] again that [its] position in relation to [the refusal decision] remain[ed] unchanged’.

| 19 | On 22 December 2014, the applicant made an appeal to the Board of Appeal within the meaning of Article 60 of Regulation No 1094/2010. The subject of that appeal was ‘[the letter] of EIOPA of [24 November] 2014, which confirms [the refusal decision]’. In support of its appeal, the applicant essentially submitted that EIOPA should have initiated an investigation since IVASS, in taking a view on the reputation of its sole shareholder, had breached EU law. According to the applicant, IVASS thereby encroached upon the jurisdiction of the Romanian authorities. In addition, the IVASS decision could not have been validly based on Article 40(6) of the third non-life insurance Directive. The annex to the statement filed for the purposes of the procedure before the Board of Appeal included, inter alia, the letter from the applicant of 18 June 2014. |
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19

On 22 December 2014, the applicant made an appeal to the Board of Appeal within the meaning of Article 60 of Regulation No 1094/2010. The subject of that appeal was ‘[the letter] of EIOPA of [24 November] 2014, which confirms [the refusal decision]’. In support of its appeal, the applicant essentially submitted that EIOPA should have initiated an investigation since IVASS, in taking a view on the reputation of its sole shareholder, had breached EU law. According to the applicant, IVASS thereby encroached upon the jurisdiction of the Romanian authorities. In addition, the IVASS decision could not have been validly based on Article 40(6) of the third non-life insurance Directive. The annex to the statement filed for the purposes of the procedure before the Board of Appeal included, inter alia, the letter from the applicant of 18 June 2014.

| 20 | By a decision of 3 August 2015 (‘the Board of Appeal decision’ and, together with the refusal decision, referred to as ‘the contested decisions’), the Board of Appeal rejected the applicant’s appeal on the grounds that it was inadmissible as it related to an act outside the scope of its jurisdiction. In essence, the Board of Appeal found that EIOPA’s letter of 24 November 2014 was merely confirmatory of the refusal decision and was not, in itself, a decision that could be appealed against to the Board of Appeal. The Board of Appeal also noted that the applicant had not appealed against the refusal decision and that, in any event, since the appeal was lodged on 22 December 2014, the applicant would have been out of time in appealing against the refusal decision. |
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20

By a decision of 3 August 2015 (‘the Board of Appeal decision’ and, together with the refusal decision, referred to as ‘the contested decisions’), the Board of Appeal rejected the applicant’s appeal on the grounds that it was inadmissible as it related to an act outside the scope of its jurisdiction. In essence, the Board of Appeal found that EIOPA’s letter of 24 November 2014 was merely confirmatory of the refusal decision and was not, in itself, a decision that could be appealed against to the Board of Appeal. The Board of Appeal also noted that the applicant had not appealed against the refusal decision and that, in any event, since the appeal was lodged on 22 December 2014, the applicant would have been out of time in appealing against the refusal decision.

| 21 | The decision of the Board of Appeal was communicated to the applicant that same day. At the applicant’s request, that decision was rectified to correct a clerical error and the applicant informed thereof on 13 August 2015. |
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21

The decision of the Board of Appeal was communicated to the applicant that same day. At the applicant’s request, that decision was rectified to correct a clerical error and the applicant informed thereof on 13 August 2015.

Procedure and forms of order sought

Procedure and forms of order sought

| 22 | By application lodged at the Court Registry on 12 October 2015, the applicant brought the present action. |
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22

By application lodged at the Court Registry on 12 October 2015, the applicant brought the present action.

| 23 | EIOPA lodged its defence at the Court Registry on 18 January 2016. |
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23

EIOPA lodged its defence at the Court Registry on 18 January 2016.

| 24 | The applicant claims that the Court should:





  — | declare that EIOPA has failed to act in that it failed to take a decision regarding the misapplication by IVASS of the provisions of Article 40(6) of the third non-life insurance Directive; |
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24

The applicant claims that the Court should:

—

declare that EIOPA has failed to act in that it failed to take a decision regarding the misapplication by IVASS of the provisions of Article 40(6) of the third non-life insurance Directive;

| — | in the alternative, annul the contested decisions; |
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—

in the alternative, annul the contested decisions;

| — | declare EIOPA liable for the damage caused to the applicant, first, by EIOPA’s failure to take a decision and secondly, by the adoption of the contested decisions; |
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—

declare EIOPA liable for the damage caused to the applicant, first, by EIOPA’s failure to take a decision and secondly, by the adoption of the contested decisions;

| — | order EIOPA to pay the costs. |
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—

order EIOPA to pay the costs.

| 25 | EIOPA contends that the Court should:





  — | primarily, dismiss the claim for failure to act, the claim for annulment and the claim for damages; |
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25

EIOPA contends that the Court should:

—

primarily, dismiss the claim for failure to act, the claim for annulment and the claim for damages;

| — | in the alternative, dismiss these claims as wholly lacking in foundation; |
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—

in the alternative, dismiss these claims as wholly lacking in foundation;

| — | order the applicant to pay the costs. |
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—

order the applicant to pay the costs.

Law

Law

| 26 | Under Article 126 of the Rules of Procedure, where it is clear that the Court has no jurisdiction to hear and determine an action or where the action is manifestly inadmissible or manifestly lacking any foundation in law, the Court may, on a proposal from the Judge-Rapporteur, at any time decide to give a decision by reasoned order without taking further steps in the proceedings. |
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26

Under Article 126 of the Rules of Procedure, where it is clear that the Court has no jurisdiction to hear and determine an action or where the action is manifestly inadmissible or manifestly lacking any foundation in law, the Court may, on a proposal from the Judge-Rapporteur, at any time decide to give a decision by reasoned order without taking further steps in the proceedings.

| 27 | In the present case, the Court considers it has sufficient information from the documents in the file and has decided to give a decision without taking further steps in the proceedings. |
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27

In the present case, the Court considers it has sufficient information from the documents in the file and has decided to give a decision without taking further steps in the proceedings.

Claim for failure to act

Claim for failure to act

| 28 | The applicant is, in essence, seeking a declaration by the Court that EIOPA unlawfully failed to take a decision concerning its request for a procedure to be initiated under Article 17 of Regulation No 1094/2010. In relation to admissibility, the applicant asserts in its application that the time limit for bringing an action laid down in Article 265(2) TFEU began to run on 3 August 2015, the date on which it was informed of the Board of Appeal decision. It was only that decision that dispelled the uncertainty over EIOPA’s response to its letter of 18 June 2014, in which the applicant had requested EIOPA to take a decision and to initiate an investigation into the breach of EU law by IVASS. |
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28

The applicant is, in essence, seeking a declaration by the Court that EIOPA unlawfully failed to take a decision concerning its request for a procedure to be initiated under Article 17 of Regulation No 1094/2010. In relation to admissibility, the applicant asserts in its application that the time limit for bringing an action laid down in Article 265(2) TFEU began to run on 3 August 2015, the date on which it was informed of the Board of Appeal decision. It was only that decision that dispelled the uncertainty over EIOPA’s response to its letter of 18 June 2014, in which the applicant had requested EIOPA to take a decision and to initiate an investigation into the breach of EU law by IVASS.

| 29 | EIOPA contends that the claim is inadmissible. |
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29

EIOPA contends that the claim is inadmissible.

| 30 | It should be recalled that, under Article 61(3) of Regulation No 1094/2010, in the event that EIOPA has an obligation to act and fails to take a decision, proceedings for failure to act may be brought in accordance with Article 265 TFEU. |
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30

It should be recalled that, under Article 61(3) of Regulation No 1094/2010, in the event that EIOPA has an obligation to act and fails to take a decision, proceedings for failure to act may be brought in accordance with Article 265 TFEU.

| 31 | In that regard, it should be recalled that the legal remedy provided for in Article 265 TFEU is based on the premiss that unlawful inaction on the part of an institution enables those concerned to bring an action before the EU courts seeking a declaration that the failure to act is contrary to the FEU Treaty. A failure to act, for the purposes of the article, means a failure to take a decision or to define a position, and not the adoption of a measure different from that sought or considered necessary by the applicant (judgment of 19 November 2013, Commission v Council, C‐196/12, EU:C:2013:753, paragraph 22; see also, to that effect, judgments of 24 November 1992, Buckl and Others v Commission, C‐15/91 and C‐108/91, EU:C:1992:454, paragraph 17, and of 16 February 1993, ENU v Commission, C‐107/91, EU:C:1993:56, paragraph 10). |
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31

In that regard, it should be recalled that the legal remedy provided for in Article 265 TFEU is based on the premiss that unlawful inaction on the part of an institution enables those concerned to bring an action before the EU courts seeking a declaration that the failure to act is contrary to the FEU Treaty. A failure to act, for the purposes of the article, means a failure to take a decision or to define a position, and not the adoption of a measure different from that sought or considered necessary by the applicant (judgment of 19 November 2013, Commission v Council, C‐196/12, EU:C:2013:753, paragraph 22; see also, to that effect, judgments of 24 November 1992, Buckl and Others v Commission, C‐15/91 and C‐108/91, EU:C:1992:454, paragraph 17, and of 16 February 1993, ENU v Commission, C‐107/91, EU:C:1993:56, paragraph 10).

| 32 | Under the second paragraph of Article 265 TFEU, an action for failure to act is admissible only if the institution concerned has first been called upon to act. Giving the institution formal notice is an essential procedural requirement the effects of which are, first, to cause the two-month period within which the institution is required to define its position to begin to run and, secondly, to delimit any action that might be brought should the institution fail to define its position. Whilst there is no particular requirement as to form, the notice must be sufficiently clear and precise to enable the defendant institution to ascertain in specific terms the content of the decision which it is being asked to adopt and must make clear that its purpose is to compel the institution to state its position (see judgment of 3 June 1999, TF1 v Commission, T‐17/96, EU:T:1999:119, paragraph 41 and the case-law cited, and order of 27 November 2012, H-Holding v Parliament, T‐672/11, not published, EU:T:2012:628, paragraph 12 and the case-law cited; order of 10 July 2014, Kafetzakis and Others v Parliament and Others, T‐38/14, not published, EU:T:2014:685, paragraph 26). |
| --- | --- |

32

Under the second paragraph of Article 265 TFEU, an action for failure to act is admissible only if the institution concerned has first been called upon to act. Giving the institution formal notice is an essential procedural requirement the effects of which are, first, to cause the two-month period within which the institution is required to define its position to begin to run and, secondly, to delimit any action that might be brought should the institution fail to define its position. Whilst there is no particular requirement as to form, the notice must be sufficiently clear and precise to enable the defendant institution to ascertain in specific terms the content of the decision which it is being asked to adopt and must make clear that its purpose is to compel the institution to state its position (see judgment of 3 June 1999, TF1 v Commission, T‐17/96, EU:T:1999:119, paragraph 41 and the case-law cited, and order of 27 November 2012, H-Holding v Parliament, T‐672/11, not published, EU:T:2012:628, paragraph 12 and the case-law cited; order of 10 July 2014, Kafetzakis and Others v Parliament and Others, T‐38/14, not published, EU:T:2014:685, paragraph 26).

| 33 | Under the second paragraph of Article 265 TFEU, if, within two months of being so called upon, the institution, body, office or agency concerned has not defined its position, the action may be brought within a further period of two months. Under Article 60 of the Rules of Procedure, that time limit is to be extended on account of distance by a single period of 10 days. |
| --- | --- |

33

Under the second paragraph of Article 265 TFEU, if, within two months of being so called upon, the institution, body, office or agency concerned has not defined its position, the action may be brought within a further period of two months. Under Article 60 of the Rules of Procedure, that time limit is to be extended on account of distance by a single period of 10 days.

| 34 | In the present case, the applicant submits, in essence, that, by its letter of 18 June 2014, it called upon EIOPA to act (see paragraph 28 above). However, in its documents, it does not identify any other subsequent occurrence on which it invited EIOPA to act, nor indeed does it claim that it did so. |
| --- | --- |

34

In the present case, the applicant submits, in essence, that, by its letter of 18 June 2014, it called upon EIOPA to act (see paragraph 28 above). However, in its documents, it does not identify any other subsequent occurrence on which it invited EIOPA to act, nor indeed does it claim that it did so.

| 35 | It will be recalled that, by its letter of 18 June 2014, the applicant requested the Chair of EIOPA to annul the refusal decision and to initiate an investigation under Article 17 of Regulation No 1094/2010. |
| --- | --- |

35

It will be recalled that, by its letter of 18 June 2014, the applicant requested the Chair of EIOPA to annul the refusal decision and to initiate an investigation under Article 17 of Regulation No 1094/2010.

| 36 | The first point to note is that, even if the applicant’s letter of 18 June 2014 can be categorised as an invitation to act, within the meaning of the case-law referred to in paragraph 32 above, there is nothing in the evidence on file nor in the allegations made by the applicant to indicate that EIOPA stated its position within the two-month period referred to in Article 265 TFEU. It is therefore at the expiry of that period, namely on 18 August 2014, that the time limit for bringing proceedings of 2 months and 10 days began to run, during which time the applicant should have brought an action before the Court for failure to act. The present action was not brought until 12 October 2015, meaning that it was clearly brought out of time. |
| --- | --- |

36

The first point to note is that, even if the applicant’s letter of 18 June 2014 can be categorised as an invitation to act, within the meaning of the case-law referred to in paragraph 32 above, there is nothing in the evidence on file nor in the allegations made by the applicant to indicate that EIOPA stated its position within the two-month period referred to in Article 265 TFEU. It is therefore at the expiry of that period, namely on 18 August 2014, that the time limit for bringing proceedings of 2 months and 10 days began to run, during which time the applicant should have brought an action before the Court for failure to act. The present action was not brought until 12 October 2015, meaning that it was clearly brought out of time.

| 37 | In any event, the second point to note is that, by an email of 2 October 2014, EIOPA essentially replied to the arguments put forward by the applicant in its letter of 18 June 2014 in particular. EIOPA then reconfirmed its position in its letter of 24 November 2014. In summarising the background to the dispute in its application, the applicant also referred to the fact that EIOPA had ‘clarified’ its position in its letter of 2 October 2014 and ‘set out in detail the reasons for the [refusal] decision’ in its letter of 24 November 2014. It therefore appears that the failure alleged by the applicant was in any event remedied, even though that occurred outside the two-month period during which EIOPA ought to have stated its position. In view of the case-law cited in paragraph 31 above, that conclusion applies even though, in the email and letter in question, EIOPA reiterated its refusal to initiate an inquiry under Article 10(2) of Regulation No 1094/2010. |
| --- | --- |

37

In any event, the second point to note is that, by an email of 2 October 2014, EIOPA essentially replied to the arguments put forward by the applicant in its letter of 18 June 2014 in particular. EIOPA then reconfirmed its position in its letter of 24 November 2014. In summarising the background to the dispute in its application, the applicant also referred to the fact that EIOPA had ‘clarified’ its position in its letter of 2 October 2014 and ‘set out in detail the reasons for the [refusal] decision’ in its letter of 24 November 2014. It therefore appears that the failure alleged by the applicant was in any event remedied, even though that occurred outside the two-month period during which EIOPA ought to have stated its position. In view of the case-law cited in paragraph 31 above, that conclusion applies even though, in the email and letter in question, EIOPA reiterated its refusal to initiate an inquiry under Article 10(2) of Regulation No 1094/2010.

| 38 | It follows that the claim for failure to act is manifestly inadmissible. |
| --- | --- |

38

It follows that the claim for failure to act is manifestly inadmissible.

| 39 | That conclusion is unaffected by the applicant’s argument alleging that the time limit for a claim for failure to act began to run on 3 August 2015, the date on which it was informed of the Board of Appeal decision. According to the applicant, that decision dispelled the uncertainty over EIOPA’s response to its letter of 18 June 2014 (see paragraph 28 above). |
| --- | --- |

39

That conclusion is unaffected by the applicant’s argument alleging that the time limit for a claim for failure to act began to run on 3 August 2015, the date on which it was informed of the Board of Appeal decision. According to the applicant, that decision dispelled the uncertainty over EIOPA’s response to its letter of 18 June 2014 (see paragraph 28 above).

| 40 | In that regard, first, it must be noted that the applicant’s arguments are based on the premiss that, even before the Board of Appeal decision was taken, EIOPA replied to the applicant’s letter of 18 June 2014, but that, in the applicant’s view, its reply was the cause of uncertainty. According to the case-law, refusal to act in accordance with an invitation to act made under Article 265 TFEU constitutes the adoption of a position putting an end to the failure to act and may be the subject of an action for annulment (see, to that effect, order of 4 May 2005 in Holcim (France) v Commission, T‐86/03, EU:T:2005:157, paragraph 36 and the case-law cited). |
| --- | --- |

40

In that regard, first, it must be noted that the applicant’s arguments are based on the premiss that, even before the Board of Appeal decision was taken, EIOPA replied to the applicant’s letter of 18 June 2014, but that, in the applicant’s view, its reply was the cause of uncertainty. According to the case-law, refusal to act in accordance with an invitation to act made under Article 265 TFEU constitutes the adoption of a position putting an end to the failure to act and may be the subject of an action for annulment (see, to that effect, order of 4 May 2005 in Holcim (France) v Commission, T‐86/03, EU:T:2005:157, paragraph 36 and the case-law cited).

| 41 | Secondly, it is settled case-law that time limits for bringing an action are a matter of public policy since they were established in order to ensure that legal positions are clear and certain and to avoid any discrimination or arbitrary treatment in the administration of justice, and the EU courts must ascertain of their own motion whether those time limits have been observed (order of 14 December 2006, Smanor and Ségaud v Commission, T‐150/06, unpublished, EU:T:2006:402, paragraph 14; see also, to that effect, order of 13 December 2000, Sodima v Commission, C‐44/00 P, EU:C:2000:686, paragraph 51). |
| --- | --- |

41

Secondly, it is settled case-law that time limits for bringing an action are a matter of public policy since they were established in order to ensure that legal positions are clear and certain and to avoid any discrimination or arbitrary treatment in the administration of justice, and the EU courts must ascertain of their own motion whether those time limits have been observed (order of 14 December 2006, Smanor and Ségaud v Commission, T‐150/06, unpublished, EU:T:2006:402, paragraph 14; see also, to that effect, order of 13 December 2000, Sodima v Commission, C‐44/00 P, EU:C:2000:686, paragraph 51).

| 42 | It must therefore be held that, having allowed the time limit for bringing an action for failure to act to expire (see paragraph 36 above), the applicant could not benefit from a fresh time limit beginning on the date on which, it claims, the uncertainty over EIOPA’s response to its letter of 18 June 2014 was dispelled. Neither can the applicant use the fact that it sent various letters to EIOPA and disputed the position taken by EIOPA to avoid its claim for failure to act being found inadmissible due to the lateness of its submission and the existence of the adoption of a position by EIOPA. |
| --- | --- |

42

It must therefore be held that, having allowed the time limit for bringing an action for failure to act to expire (see paragraph 36 above), the applicant could not benefit from a fresh time limit beginning on the date on which, it claims, the uncertainty over EIOPA’s response to its letter of 18 June 2014 was dispelled. Neither can the applicant use the fact that it sent various letters to EIOPA and disputed the position taken by EIOPA to avoid its claim for failure to act being found inadmissible due to the lateness of its submission and the existence of the adoption of a position by EIOPA.

| 43 | In the light of the foregoing, the claim for failure to act must be dismissed as manifestly inadmissible. |
| --- | --- |

43

In the light of the foregoing, the claim for failure to act must be dismissed as manifestly inadmissible.

Claims for annulment

Claims for annulment

| 44 | The claims for annulment, first, of the refusal decision, and secondly, of the Board of Appeal decision, must be examined in succession. |
| --- | --- |

44

The claims for annulment, first, of the refusal decision, and secondly, of the Board of Appeal decision, must be examined in succession.

Claim for annulment of the refusal decision

| 45 | In support of its claim for annulment of the refusal decision, the applicant relies on a single plea in law, being an alleged failure to state reasons. With regard to the admissibility of this claim, the applicant states in its application that the time limit for bringing an action did not start to run until 13 August 2015, the date on which the Board of Appeal decision became unamendable following the rectification of clerical errors. First, the procedure before the Board of Appeal is alleged to have been carried out without any account being taken of the applicant’s letter of 18 June 2014. Secondly the time limit for an action for annulment was suspended for the duration of the procedure before the Board of Appeal. |
| --- | --- |

45

In support of its claim for annulment of the refusal decision, the applicant relies on a single plea in law, being an alleged failure to state reasons. With regard to the admissibility of this claim, the applicant states in its application that the time limit for bringing an action did not start to run until 13 August 2015, the date on which the Board of Appeal decision became unamendable following the rectification of clerical errors. First, the procedure before the Board of Appeal is alleged to have been carried out without any account being taken of the applicant’s letter of 18 June 2014. Secondly the time limit for an action for annulment was suspended for the duration of the procedure before the Board of Appeal.

| 46 | EIOPA maintains that the claim for annulment of the refusal decision is inadmissible. First, EIOPA submits, the action was submitted out of time. Secondly, the refusal decision does not constitute an act open to challenge for the purposes of Article 263 TFEU. In any event, the single plea in law relied upon in support of the claim for annulment of the refusal decision is unfounded. |
| --- | --- |

46

EIOPA maintains that the claim for annulment of the refusal decision is inadmissible. First, EIOPA submits, the action was submitted out of time. Secondly, the refusal decision does not constitute an act open to challenge for the purposes of Article 263 TFEU. In any event, the single plea in law relied upon in support of the claim for annulment of the refusal decision is unfounded.

| 47 | Without prejudice, first, to the question of whether, with particular regard to the applicant’s arguments as summarised in paragraph 45 above, the claim for annulment of the refusal decision was made out of time and, secondly, to the potential consequence of the procedure before the Board of Appeal on the possibility of challenging the said decision before the Court, the first step is to examine whether that decision constitutes an act open to challenge for the purposes of Article 263 TFEU. |
| --- | --- |

47

Without prejudice, first, to the question of whether, with particular regard to the applicant’s arguments as summarised in paragraph 45 above, the claim for annulment of the refusal decision was made out of time and, secondly, to the potential consequence of the procedure before the Board of Appeal on the possibility of challenging the said decision before the Court, the first step is to examine whether that decision constitutes an act open to challenge for the purposes of Article 263 TFEU.

| 48 | First of all, it should be recalled that, according to the case-law, any measures adopted by the institutions, bodies, offices and agencies of the Union, whatever their form, which are intended to have binding legal effects, are regarded as acts open to challenge, within the meaning of Article 263 TFEU (judgment of 31 March 1971, Commission v Council, 22/70, EU:C:1971:32, paragraph 42; see, also, judgment of 13 October 2011, Deutsche Post and Germany v Commission, C‐463/10 P and C‐475/10 P, EU:C:2011:656, paragraph 36 and the case-law cited). |
| --- | --- |

48

First of all, it should be recalled that, according to the case-law, any measures adopted by the institutions, bodies, offices and agencies of the Union, whatever their form, which are intended to have binding legal effects, are regarded as acts open to challenge, within the meaning of Article 263 TFEU (judgment of 31 March 1971, Commission v Council, 22/70, EU:C:1971:32, paragraph 42; see, also, judgment of 13 October 2011, Deutsche Post and Germany v Commission, C‐463/10 P and C‐475/10 P, EU:C:2011:656, paragraph 36 and the case-law cited).

| 49 | Where an action for annulment of an act adopted by an institution, body, office or agency of the Union is brought by a natural or legal person, the Court of Justice has repeatedly held that the action lies only if the binding legal effects of that act are capable of affecting the interests of the applicant by bringing about a distinct change in his legal position (judgment of 11 November 1981, IBM v Commission, 60/81, EU:C:1981:264, paragraph 9; see, also, judgment of 13 October 2011, Deutsche Post and Germany v Commission, C‐463/10 P and C‐475/10 P, EU:C:2011:656, paragraph 37 and the case-law cited). That case-law was developed in the context of appeals brought before the EU courts by natural or legal persons against acts addressed to them. Where an action for annulment is brought by a non-privileged applicant against a measure that has not been addressed to it, the requirement that the binding legal effects of the measure being challenged must be capable of affecting the interests of the applicant by bringing about a distinct change in his legal position overlaps with the conditions laid down in the fourth paragraph of Article 263 TFEU (judgment of 13 October 2011, Deutsche Post and Germany v Commission, C‐463/10 P and C‐475/10 P, EU:C:2011:656, paragraph 38). |
| --- | --- |

49

Where an action for annulment of an act adopted by an institution, body, office or agency of the Union is brought by a natural or legal person, the Court of Justice has repeatedly held that the action lies only if the binding legal effects of that act are capable of affecting the interests of the applicant by bringing about a distinct change in his legal position (judgment of 11 November 1981, IBM v Commission, 60/81, EU:C:1981:264, paragraph 9; see, also, judgment of 13 October 2011, Deutsche Post and Germany v Commission, C‐463/10 P and C‐475/10 P, EU:C:2011:656, paragraph 37 and the case-law cited). That case-law was developed in the context of appeals brought before the EU courts by natural or legal persons against acts addressed to them. Where an action for annulment is brought by a non-privileged applicant against a measure that has not been addressed to it, the requirement that the binding legal effects of the measure being challenged must be capable of affecting the interests of the applicant by bringing about a distinct change in his legal position overlaps with the conditions laid down in the fourth paragraph of Article 263 TFEU (judgment of 13 October 2011, Deutsche Post and Germany v Commission, C‐463/10 P and C‐475/10 P, EU:C:2011:656, paragraph 38).

| 50 | Finally, it should be noted, by analogy, that the Court of Justice has held that a decision not to take proceedings under Article 106(3) TFEU did not constitute an act open to challenge, since it followed from the wording of Article 106(3) and from the scheme of that article as a whole that the Commission was not obliged to bring proceedings. Individuals cannot therefore require the Commission to take a position in a specific sense. The Court of Justice held that a letter by which the Commission informed the author of a complaint that it was not intending to bring proceedings could not be regarded as producing binding legal effects, with the result that it was not an act open to challenge, notwithstanding the fact that an individual may, in certain circumstances, be entitled to bring an action for annulment against a decision which the Commission addresses to a Member State on the basis of Article 106(3) TFEU, if the conditions laid down in the fourth paragraph of Article 263 TFEU are satisfied (see, to that effect, judgment of 22 February 2015, Commission v max.mobil, C‐141/02 P, EU:C:2005:98, paragraphs 68 to 70). |
| --- | --- |

50

Finally, it should be noted, by analogy, that the Court of Justice has held that a decision not to take proceedings under Article 106(3) TFEU did not constitute an act open to challenge, since it followed from the wording of Article 106(3) and from the scheme of that article as a whole that the Commission was not obliged to bring proceedings. Individuals cannot therefore require the Commission to take a position in a specific sense. The Court of Justice held that a letter by which the Commission informed the author of a complaint that it was not intending to bring proceedings could not be regarded as producing binding legal effects, with the result that it was not an act open to challenge, notwithstanding the fact that an individual may, in certain circumstances, be entitled to bring an action for annulment against a decision which the Commission addresses to a Member State on the basis of Article 106(3) TFEU, if the conditions laid down in the fourth paragraph of Article 263 TFEU are satisfied (see, to that effect, judgment of 22 February 2015, Commission v max.mobil, C‐141/02 P, EU:C:2005:98, paragraphs 68 to 70).

| 51 | In the present case, it is not in dispute that the applicant made a complaint to EIOPA under Article 17 of Regulation No 1094/2010. That article provides EIOPA with a mechanism for dealing with breaches of Union law by the national authorities in their supervisory activities. Thus, under Article 17(1), ‘where a competent authority has not applied the acts referred to in Article 1(2) or has applied them in a way which appears to be a breach of Union law, including the regulatory technical standards and implementing technical standards established in accordance with Articles 10 to 15, in particular by failing to ensure that a financial institution satisfies the requirements laid down in those acts, [EIOPA] shall act in accordance with the powers set out in paragraphs 2, 3 and 6 of this Article’. |
| --- | --- |

51

In the present case, it is not in dispute that the applicant made a complaint to EIOPA under Article 17 of Regulation No 1094/2010. That article provides EIOPA with a mechanism for dealing with breaches of Union law by the national authorities in their supervisory activities. Thus, under Article 17(1), ‘where a competent authority has not applied the acts referred to in Article 1(2) or has applied them in a way which appears to be a breach of Union law, including the regulatory technical standards and implementing technical standards established in accordance with Articles 10 to 15, in particular by failing to ensure that a financial institution satisfies the requirements laid down in those acts, [EIOPA] shall act in accordance with the powers set out in paragraphs 2, 3 and 6 of this Article’.

| 52 | Article 17(2), (3) and (6) of Regulation No 1094/2010 set out three stages to this mechanism. In particular, Article 17(2) provides that, ‘upon a request from one or more competent authorities, the European Parliament, the Council, the Commission or the relevant stakeholder group, or on its own initiative and after having informed the competent authority concerned, [EIOPA] may investigate the alleged breach or non-application of Union law’. |
| --- | --- |

52

Article 17(2), (3) and (6) of Regulation No 1094/2010 set out three stages to this mechanism. In particular, Article 17(2) provides that, ‘upon a request from one or more competent authorities, the European Parliament, the Council, the Commission or the relevant stakeholder group, or on its own initiative and after having informed the competent authority concerned, [EIOPA] may investigate the alleged breach or non-application of Union law’.

| 53 | It is therefore clear from that provision and, in particular, from the use of the word ‘may’, that EIOPA has a discretionary power in relation to investigations, both when it receives a request from one of the bodies referred to in Article 17(2) of Regulation No 1094/2010, and when it acts on its own initiative (see, by analogy, judgment of 9 September 2015, SV Capital v EBA, T‐660/14, under appeal, EU:T:2015:608, paragraph 47). |
| --- | --- |

53

It is therefore clear from that provision and, in particular, from the use of the word ‘may’, that EIOPA has a discretionary power in relation to investigations, both when it receives a request from one of the bodies referred to in Article 17(2) of Regulation No 1094/2010, and when it acts on its own initiative (see, by analogy, judgment of 9 September 2015, SV Capital v EBA, T‐660/14, under appeal, EU:T:2015:608, paragraph 47).

| 54 | It follows that, despite the applicant’s assertion to the contrary in the context of the claim for failure to act, EIOPA was under no obligation to act under Article 17 of Regulation No 1094/2010. |
| --- | --- |

54

It follows that, despite the applicant’s assertion to the contrary in the context of the claim for failure to act, EIOPA was under no obligation to act under Article 17 of Regulation No 1094/2010.

| 55 | That interpretation also accords with EIOPA’s objectives and tasks and with the general scheme of the mechanism established by Article 17 of Regulation No 1094/2010. According to Article 1(6) of that regulation, the objective of EIOPA shall be to protect the public interest by contributing to the short, medium and long-term stability and effectiveness of the financial system, for the Union economy, its citizens and businesses. In addition, it is clear from recital 26 in the preamble to the regulation that the mechanism established by Article 17 is intended to ensure the integrity, transparency, efficiency and orderly functioning of financial markets, the stability of the financial system, and for neutral conditions of competition for financial institutions in the Union. Ensuring the correct and full application of Union law is a core requisite for this. In other words, and as submitted by EIOPA, the aim of the mechanism is not to provide individual protection or redress in disputes between a natural or legal person and a competent authority at the national level. |
| --- | --- |

55

That interpretation also accords with EIOPA’s objectives and tasks and with the general scheme of the mechanism established by Article 17 of Regulation No 1094/2010. According to Article 1(6) of that regulation, the objective of EIOPA shall be to protect the public interest by contributing to the short, medium and long-term stability and effectiveness of the financial system, for the Union economy, its citizens and businesses. In addition, it is clear from recital 26 in the preamble to the regulation that the mechanism established by Article 17 is intended to ensure the integrity, transparency, efficiency and orderly functioning of financial markets, the stability of the financial system, and for neutral conditions of competition for financial institutions in the Union. Ensuring the correct and full application of Union law is a core requisite for this. In other words, and as submitted by EIOPA, the aim of the mechanism is not to provide individual protection or redress in disputes between a natural or legal person and a competent authority at the national level.

| 56 | In the light of these factors, it must be noted that the lodging of a complaint such as that made in the present case by the applicant does not create any special legal relationship between the applicant and EIOPA and cannot oblige EIOPA to carry out an investigation under Article 17(2) of Regulation No 1094/2010. |
| --- | --- |

56

In the light of these factors, it must be noted that the lodging of a complaint such as that made in the present case by the applicant does not create any special legal relationship between the applicant and EIOPA and cannot oblige EIOPA to carry out an investigation under Article 17(2) of Regulation No 1094/2010.

| 57 | In the circumstances, it must be held, by analogy with the case-law set out in paragraph 50 above, that the refusal decision does not produce binding legal effects. In particular, since the applicant could not require EIOPA to initiate an investigation under Article 17(2) of Regulation No 1094/2010, EIOPA’s refusal to initiate such a procedure on its own initiative was not capable of affecting the interests of the applicant by bringing about a distinct change in his legal position. |
| --- | --- |

57

In the circumstances, it must be held, by analogy with the case-law set out in paragraph 50 above, that the refusal decision does not produce binding legal effects. In particular, since the applicant could not require EIOPA to initiate an investigation under Article 17(2) of Regulation No 1094/2010, EIOPA’s refusal to initiate such a procedure on its own initiative was not capable of affecting the interests of the applicant by bringing about a distinct change in his legal position.

| 58 | Therefore, the refusal decision cannot be classed as an act open to challenge. |
| --- | --- |

58

Therefore, the refusal decision cannot be classed as an act open to challenge.

| 59 | In the light of the foregoing, the claim for annulment of the refusal decision must be dismissed as manifestly inadmissible, without there being any need to examine the respective arguments of the parties in relation to the time limit for bringing proceedings. |
| --- | --- |

59

In the light of the foregoing, the claim for annulment of the refusal decision must be dismissed as manifestly inadmissible, without there being any need to examine the respective arguments of the parties in relation to the time limit for bringing proceedings.

Claim for annulment of the Board of Appeal decision

| 60 | In support of its claim for annulment of the Board of Appeal decision, which it asserts is admissible due to sufficient legal standing and to proceedings being brought within the required time limit, the applicant essentially relies on a single plea in law, being an alleged breach of an essential procedural requirement, in that the Board of Appeal did not rule on the whole of the subject matter of the dispute. Whilst it admits that its appeal to the Board of Appeal referred only to EIOPA’s letter of 24 November 2014, the applicant considers that the Board of Appeal should still have taken into account the arguments set out in its letter of 18 June 2014, in which it called for the annulment of the refusal decision, and which it annexed to its appeal. |
| --- | --- |

60

In support of its claim for annulment of the Board of Appeal decision, which it asserts is admissible due to sufficient legal standing and to proceedings being brought within the required time limit, the applicant essentially relies on a single plea in law, being an alleged breach of an essential procedural requirement, in that the Board of Appeal did not rule on the whole of the subject matter of the dispute. Whilst it admits that its appeal to the Board of Appeal referred only to EIOPA’s letter of 24 November 2014, the applicant considers that the Board of Appeal should still have taken into account the arguments set out in its letter of 18 June 2014, in which it called for the annulment of the refusal decision, and which it annexed to its appeal.

| 61 | EIOPA contends, in essence, that the claim for annulment of the Board of Appeal decision is inadmissible, since that decision does not constitute an act open to challenge for the purposes of Article 263 TFEU and that, in any event, the single plea in law submitted by the applicant is ineffective. |
| --- | --- |

61

EIOPA contends, in essence, that the claim for annulment of the Board of Appeal decision is inadmissible, since that decision does not constitute an act open to challenge for the purposes of Article 263 TFEU and that, in any event, the single plea in law submitted by the applicant is ineffective.

| 62 | It should be recalled that, according to the case-law, it is for the Court to assess whether, in the circumstances of the case, the proper administration of justice justifies the dismissal of the applicant’s allegations relating to the merits of the Board of Appeal decision without ruling on the admissibility of the present claim for annulment (see, to that effect, judgment of 26 February 2002, Council v Boehringer, C‐23/00 P, EU:C:2002:118, paragraph 52). |
| --- | --- |

62

It should be recalled that, according to the case-law, it is for the Court to assess whether, in the circumstances of the case, the proper administration of justice justifies the dismissal of the applicant’s allegations relating to the merits of the Board of Appeal decision without ruling on the admissibility of the present claim for annulment (see, to that effect, judgment of 26 February 2002, Council v Boehringer, C‐23/00 P, EU:C:2002:118, paragraph 52).

| 63 | In the present case, in the interests of procedural economy, it is appropriate to make use of this possibility since the single plea in law submitted by the applicant does not, for the reasons set out below, clearly show that the Board of Appeal decision was unlawful. |
| --- | --- |

63

In the present case, in the interests of procedural economy, it is appropriate to make use of this possibility since the single plea in law submitted by the applicant does not, for the reasons set out below, clearly show that the Board of Appeal decision was unlawful.

| 64 | It should be recalled that, under Article 60(4) of Regulation No 1094/2010, ‘if the appeal is admissible, the Board of Appeal shall examine whether it is well founded’. Under Article 9(1) of its rules of procedure, the Board of Appeal shall determine whether or not an appeal is admissible before examining whether it is well founded, if the respondent contends that the appeal is not admissible. |
| --- | --- |

64

It should be recalled that, under Article 60(4) of Regulation No 1094/2010, ‘if the appeal is admissible, the Board of Appeal shall examine whether it is well founded’. Under Article 9(1) of its rules of procedure, the Board of Appeal shall determine whether or not an appeal is admissible before examining whether it is well founded, if the respondent contends that the appeal is not admissible.

| 65 | In the present case, it is clear from the information on file that EIOPA lodged a reply before the Board of Appeal, dated 25 June 2015, which was limited to questions of admissibility. In that reply, EIOPA submitted that the appeal should be dismissed as inadmissible. |
| --- | --- |

65

In the present case, it is clear from the information on file that EIOPA lodged a reply before the Board of Appeal, dated 25 June 2015, which was limited to questions of admissibility. In that reply, EIOPA submitted that the appeal should be dismissed as inadmissible.

| 66 | By its decision, the Board of Appeal dismissed the applicant’s appeal as inadmissible, essentially on the ground that the appeal was not directed against an act falling within its jurisdiction. According to the Board of Appeal, the letter from EIOPA of 24 November 2014 was merely confirmatory of the refusal decision. The Board of Appeal also noted that the applicant had not brought an appeal against the refusal decision and that, in any event, since the appeal had been brought on 22 December 2014, the applicant was out of time to challenge that decision. |
| --- | --- |

66

By its decision, the Board of Appeal dismissed the applicant’s appeal as inadmissible, essentially on the ground that the appeal was not directed against an act falling within its jurisdiction. According to the Board of Appeal, the letter from EIOPA of 24 November 2014 was merely confirmatory of the refusal decision. The Board of Appeal also noted that the applicant had not brought an appeal against the refusal decision and that, in any event, since the appeal had been brought on 22 December 2014, the applicant was out of time to challenge that decision.

| 67 | Since the Board of Appeal dismissed the appeal as inadmissible, it made no ruling on the merits of the appeal brought by the applicant. It thereby complied with Article 9(1) of its rules of procedure, which the applicant does not dispute. |
| --- | --- |

67

Since the Board of Appeal dismissed the appeal as inadmissible, it made no ruling on the merits of the appeal brought by the applicant. It thereby complied with Article 9(1) of its rules of procedure, which the applicant does not dispute.

| 68 | First, it must be observed that the applicant has not submitted any plea or argument before the Court calling into question the merits of the Board of Appeal’s finding that the appeal brought before it was inadmissible. |
| --- | --- |

68

First, it must be observed that the applicant has not submitted any plea or argument before the Court calling into question the merits of the Board of Appeal’s finding that the appeal brought before it was inadmissible.

| 69 | By its single plea in law, the applicant essentially complains that the Board of Appeal failed to rule on the arguments contained in the applicant’s letter of 18 June 2014. It is clear from that letter that those arguments sought to show a breach of EU law by IVASS which, according to the applicant, would justify the initiation of an investigation under Article 17 of Regulation No 1094/2010. |
| --- | --- |

69

By its single plea in law, the applicant essentially complains that the Board of Appeal failed to rule on the arguments contained in the applicant’s letter of 18 June 2014. It is clear from that letter that those arguments sought to show a breach of EU law by IVASS which, according to the applicant, would justify the initiation of an investigation under Article 17 of Regulation No 1094/2010.

| 70 | It follows that the single plea in law submitted in support of the present claim relates exclusively to the assessment of the merits of the refusal to initiate an investigation under Article 17 of Regulation No 1094/2010, which, however, the Board of Appeal did not carry out. |
| --- | --- |

70

It follows that the single plea in law submitted in support of the present claim relates exclusively to the assessment of the merits of the refusal to initiate an investigation under Article 17 of Regulation No 1094/2010, which, however, the Board of Appeal did not carry out.

| 71 | Therefore, the single plea in law must be rejected as clearly ineffective. |
| --- | --- |

71

Therefore, the single plea in law must be rejected as clearly ineffective.

| 72 | Secondly, and in any event, it should be noted that the applicant admits in its documents that, in its appeal made on 22 December 2014, it mentioned only the letter from EIOPA of 24 November 2014 as being the decision appealed against. It must be held that the applicant thus agrees that the only subject matter of the appeal made to the Board of Appeal was EIOPA’s letter of 24 November 2014. The same conclusion applies to a consideration of the documents on file, in particular, when reading the appeal lodged by the applicant before the Board of Appeal, which clearly identifies the subject matter as ‘[the letter] of EIOPA of [24 November] 2014, which confirms [the refusal decision]’, and the statement lodged by the applicant before the Board of Appeal, in which the applicant concluded that that letter, in confirming the refusal decision, breached EU law. |
| --- | --- |

72

Secondly, and in any event, it should be noted that the applicant admits in its documents that, in its appeal made on 22 December 2014, it mentioned only the letter from EIOPA of 24 November 2014 as being the decision appealed against. It must be held that the applicant thus agrees that the only subject matter of the appeal made to the Board of Appeal was EIOPA’s letter of 24 November 2014. The same conclusion applies to a consideration of the documents on file, in particular, when reading the appeal lodged by the applicant before the Board of Appeal, which clearly identifies the subject matter as ‘[the letter] of EIOPA of [24 November] 2014, which confirms [the refusal decision]’, and the statement lodged by the applicant before the Board of Appeal, in which the applicant concluded that that letter, in confirming the refusal decision, breached EU law.

| 73 | It is not disputed that the Board of Appeal ruled on the appeal made against EIOPA’s letter of 24 November 2014 and dismissed it as inadmissible. In so doing, the Board of Appeal extinguished the subject matter of the dispute, which, as seen from the above, consisted of the lawfulness of that letter alone. |
| --- | --- |

73

It is not disputed that the Board of Appeal ruled on the appeal made against EIOPA’s letter of 24 November 2014 and dismissed it as inadmissible. In so doing, the Board of Appeal extinguished the subject matter of the dispute, which, as seen from the above, consisted of the lawfulness of that letter alone.

| 74 | Therefore, it was manifestly incorrect of the applicant to claim that the Board of Appeal ruled only partially on the subject matter of the dispute by failing to rule on its letter of 18 June 2014. |
| --- | --- |

74

Therefore, it was manifestly incorrect of the applicant to claim that the Board of Appeal ruled only partially on the subject matter of the dispute by failing to rule on its letter of 18 June 2014.

| 75 | That conclusion still applies even though the applicant’s letter of 18 June 2014 was annexed to the statement it lodged as part of the procedure before the Board of Appeal and even though, in that statement, the applicant specified that the annexes formed an integral part of its arguments. Without prejudice to the question as to whether, during the assessment of the substance of an appeal, in addition to ruling on the arguments presented in the statements lodged, the Board of Appeal is required to rule on arguments appearing exclusively in the annexes to those statements, the fact that the letter was annexed to the applicant’s statement is not sufficient to alter the subject matter of the dispute before the Board of Appeal, which was clearly limited to EIOPA’s letter of 24 November 2014. |
| --- | --- |

75

That conclusion still applies even though the applicant’s letter of 18 June 2014 was annexed to the statement it lodged as part of the procedure before the Board of Appeal and even though, in that statement, the applicant specified that the annexes formed an integral part of its arguments. Without prejudice to the question as to whether, during the assessment of the substance of an appeal, in addition to ruling on the arguments presented in the statements lodged, the Board of Appeal is required to rule on arguments appearing exclusively in the annexes to those statements, the fact that the letter was annexed to the applicant’s statement is not sufficient to alter the subject matter of the dispute before the Board of Appeal, which was clearly limited to EIOPA’s letter of 24 November 2014.

| 76 | In addition, even if the applicant seeks to reproach EIOPA for not having treated its letter of 18 June 2014 as an appeal under Article 60 of Regulation No 1094/2010 or for not ruling on the appeal created by that letter, it must be pointed out that nothing within that letter indicates that the applicant sought to make such an appeal to the Board of Appeal. The most that the letter, which was addressed to the Chair of EIOPA and which set out the applicant’s reasons for disputing the refusal decision, amounted to was a request to the Chair of EIOPA to annul the said decision and to decide to initiate an investigation under Article 17 of that regulation. |
| --- | --- |

76

In addition, even if the applicant seeks to reproach EIOPA for not having treated its letter of 18 June 2014 as an appeal under Article 60 of Regulation No 1094/2010 or for not ruling on the appeal created by that letter, it must be pointed out that nothing within that letter indicates that the applicant sought to make such an appeal to the Board of Appeal. The most that the letter, which was addressed to the Chair of EIOPA and which set out the applicant’s reasons for disputing the refusal decision, amounted to was a request to the Chair of EIOPA to annul the said decision and to decide to initiate an investigation under Article 17 of that regulation.

| 77 | It follows that the single plea in law submitted in support of the claim for annulment of the Board of Appeal decision must be dismissed as manifestly ineffective and, in any event, manifestly unfounded. |
| --- | --- |

77

It follows that the single plea in law submitted in support of the claim for annulment of the Board of Appeal decision must be dismissed as manifestly ineffective and, in any event, manifestly unfounded.

| 78 | Consequently, the claim must be rejected as manifestly lacking any foundation in law. |
| --- | --- |

78

Consequently, the claim must be rejected as manifestly lacking any foundation in law.

Claim for damages

Claim for damages

| 79 | The applicant asks the Court to ‘declare [EIOPA] liable’ for the damage caused to the applicant by EIOPA’s failure to take a decision and by the adoption of the contested decisions. With particular reference to the arguments made in the context of its claims for failure to act and for annulment, the applicant submits that there was a sufficiently serious breach by EIOPA of Articles 17 and 60 of Regulation No 1094/2010 and the provisions of the third non-life insurance Directive which confer rights on the applicant. These unlawful acts are alleged to have caused the applicant not only pecuniary loss, due to a 59% decline in its turnover from 2013 to 2014 for policies issued in Italy, loss of profit and costs arising from the bar on opening of a branch in Italy, but also loss of reputation or image. In respect of a causal link, the applicant takes the view that, even though the chain of causality commenced with the IVASS decision, EIOPA nonetheless made a decisive contribution to maintaining the effects of that decision. |
| --- | --- |

79

The applicant asks the Court to ‘declare [EIOPA] liable’ for the damage caused to the applicant by EIOPA’s failure to take a decision and by the adoption of the contested decisions. With particular reference to the arguments made in the context of its claims for failure to act and for annulment, the applicant submits that there was a sufficiently serious breach by EIOPA of Articles 17 and 60 of Regulation No 1094/2010 and the provisions of the third non-life insurance Directive which confer rights on the applicant. These unlawful acts are alleged to have caused the applicant not only pecuniary loss, due to a 59% decline in its turnover from 2013 to 2014 for policies issued in Italy, loss of profit and costs arising from the bar on opening of a branch in Italy, but also loss of reputation or image. In respect of a causal link, the applicant takes the view that, even though the chain of causality commenced with the IVASS decision, EIOPA nonetheless made a decisive contribution to maintaining the effects of that decision.

| 80 | EIOPA contends that the claim for damages is manifestly inadmissible or, in the alternative, manifestly lacking any foundation. |
| --- | --- |

80

EIOPA contends that the claim for damages is manifestly inadmissible or, in the alternative, manifestly lacking any foundation.

| 81 | It will be recalled that, under Article 21 of the Statute of the Court of Justice of the European Union and Article 76(d) of the Rules of Procedure, each application is required, inter alia, to state the subject matter of the proceedings and a summary of the pleas in law on which the application is based. In order to satisfy those requirements, an application seeking compensation for damage caused by an EU institution must state the evidence from which the conduct alleged against the institution can be identified, the reasons for which the applicant considers there to be a causal link between the conduct and the damage it claims to have suffered, and the nature and extent of that damage (judgments of 18 September 1996, Asia Motor France and Others v Commission, T‐387/94, EU:T:1996:120, paragraphs 106 and 107, and of 6 May 1997, Guérin automobiles v Commission, T‐195/95, EU:T:1997:66, paragraphs 20 and 21). A claim for any unspecified form of damages, however, is not sufficiently concrete and must therefore be regarded as inadmissible (judgment of 2 December 1971, Zuckerfabrik Schoeppenstedt v Council, 5/71, EU:C:1971:116, paragraph 9). |
| --- | --- |

81

It will be recalled that, under Article 21 of the Statute of the Court of Justice of the European Union and Article 76(d) of the Rules of Procedure, each application is required, inter alia, to state the subject matter of the proceedings and a summary of the pleas in law on which the application is based. In order to satisfy those requirements, an application seeking compensation for damage caused by an EU institution must state the evidence from which the conduct alleged against the institution can be identified, the reasons for which the applicant considers there to be a causal link between the conduct and the damage it claims to have suffered, and the nature and extent of that damage (judgments of 18 September 1996, Asia Motor France and Others v Commission, T‐387/94, EU:T:1996:120, paragraphs 106 and 107, and of 6 May 1997, Guérin automobiles v Commission, T‐195/95, EU:T:1997:66, paragraphs 20 and 21). A claim for any unspecified form of damages, however, is not sufficiently concrete and must therefore be regarded as inadmissible (judgment of 2 December 1971, Zuckerfabrik Schoeppenstedt v Council, 5/71, EU:C:1971:116, paragraph 9).

| 82 | Admittedly, an applicant may not have put in figures the amount of the loss which it submits it has suffered, while clearly indicating the evidence which enables its nature and extent to be assessed, so that the defendant is in a position to conduct its defence. In such circumstances, the absence of precise figures in the application does not affect the other party’s rights of defence (order of 22 July 2005, Polyelectrolyte Producers Group v Council and Commission, T‐376/04, EU:T:2005:297, paragraph 55). |
| --- | --- |

82

Admittedly, an applicant may not have put in figures the amount of the loss which it submits it has suffered, while clearly indicating the evidence which enables its nature and extent to be assessed, so that the defendant is in a position to conduct its defence. In such circumstances, the absence of precise figures in the application does not affect the other party’s rights of defence (order of 22 July 2005, Polyelectrolyte Producers Group v Council and Commission, T‐376/04, EU:T:2005:297, paragraph 55).

| 83 | However, in the present case, the applicant merely made vague reference not only to a pecuniary loss, consisting of a 59% decline in its turnover for policies issued in Italy, loss of profit and costs arising from the bar on opening of a branch in Italy, but also to a loss of reputation or image, without substantiating its allegations in any way. The applicant thus failed to provide sufficient information to enable the Court and EIOPA to assess the nature and the extent of the loss suffered. |
| --- | --- |

83

However, in the present case, the applicant merely made vague reference not only to a pecuniary loss, consisting of a 59% decline in its turnover for policies issued in Italy, loss of profit and costs arising from the bar on opening of a branch in Italy, but also to a loss of reputation or image, without substantiating its allegations in any way. The applicant thus failed to provide sufficient information to enable the Court and EIOPA to assess the nature and the extent of the loss suffered.

| 84 | Nor has the applicant set out sufficiently the reasons why it considers there to be a causal link between the behaviour it alleges on the part of EIOPA and the loss it claims to have suffered. It merely observed that ‘it was true that the chain of causality leading to the loss suffered commenced with the IVASS decision, but, in failing to take a decision, or in taking fundamentally flawed decisions, EIOPA made a decisive contribution to maintaining the effects of that decision and to the failure to take steps to remedy that restriction’. It must be held that such vague and unsubstantiated allegations do not satisfy the requirements referred to in paragraph 81 above. |
| --- | --- |

84

Nor has the applicant set out sufficiently the reasons why it considers there to be a causal link between the behaviour it alleges on the part of EIOPA and the loss it claims to have suffered. It merely observed that ‘it was true that the chain of causality leading to the loss suffered commenced with the IVASS decision, but, in failing to take a decision, or in taking fundamentally flawed decisions, EIOPA made a decisive contribution to maintaining the effects of that decision and to the failure to take steps to remedy that restriction’. It must be held that such vague and unsubstantiated allegations do not satisfy the requirements referred to in paragraph 81 above.

| 85 | In those circumstances, the claim for damages must be dismissed as manifestly inadmissible. |
| --- | --- |

85

In those circumstances, the claim for damages must be dismissed as manifestly inadmissible.

| 86 | In the light of all the foregoing and, in particular, of the conclusions drawn in paragraphs 43, 59, 78 and 85 above, the present action must be dismissed as being in part manifestly inadmissible and in part manifestly lacking any foundation in law. |
| --- | --- |

86

In the light of all the foregoing and, in particular, of the conclusions drawn in paragraphs 43, 59, 78 and 85 above, the present action must be dismissed as being in part manifestly inadmissible and in part manifestly lacking any foundation in law.

Costs

Costs

| 87 | Under 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 pay the costs, in accordance with the form of order sought by EIOPA. |
| --- | --- |

87

Under 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 pay the costs, in accordance with the form of order sought by EIOPA.

| | On those grounds,
  THE GENERAL COURT (Second Chamber)
  hereby orders: |
| --- | --- |

On those grounds,

THE GENERAL COURT (Second Chamber)

hereby orders:

| | 1. | The action is dismissed. |
| --- | --- | --- |

1.

1.

The action is dismissed.

The action is dismissed.

| | 2. | Onix Asigurări SA is ordered to bear its own costs and pay those incurred by the European Insurance and Occupational Pensions Authority (EIOPA).

  Luxembourg, 24 June 2016. |
| --- | --- | --- |

2.

2.

Onix Asigurări SA is ordered to bear its own costs and pay those incurred by the European Insurance and Occupational Pensions Authority (EIOPA).

Onix Asigurări SA is ordered to bear its own costs and pay those incurred by the European Insurance and Occupational Pensions Authority (EIOPA).

Luxembourg, 24 June 2016.

| | E. Coulon
  Registrar
  M.E. Martins Ribeiro
  President |
| --- | --- |

E. Coulon

Registrar

M.E. Martins Ribeiro

President

---

(
  *1
  )	Language of the case: Romanian.

*1