Dear Mr X,

On 20 November 2018, you submitted a complaint^[1] to the European Ombudsman against the European Commission and the European Insurance and Occupational Pensions Authority (EIOPA). The Ombudsman has asked me to deal with your complaint and reply to you on her behalf.

In September 2017, you submitted a complaint to the Commission concerning the liquidation procedure of a Maltese insurance company. You argued that the liquidator did not comply with its obligation to provide information to creditors and that the Malta Financial Services Authority (MFSA) failed to supervise the liquidator.

In March 2018, the Commission informed you in writing of its intention to close the case. I understand from your complaint that you consider that the position taken by the Commission is not well founded.

When it comes to infringement complaints, the Ombudsman may examine whether the Commission has kept the complainant properly informed as regards progress in the case and the position it eventually takes. In addition, the Ombudsman may examine whether the complainant has been given the opportunity to comment on the position of the Commission before the Commission closes a case.

I note that the Commission has provided you with clear information about why it closed your infringement complaint and has advised you to raise your concerns about possible failings of the liquidator at the national level. The Commission was also correct to state that it could not deal with complaints against private entities. In fact, according to Article 258 of the Treaty on the Functioning of the European Union, the Commission may take action if it considers that a Member State has failed to fulfil an obligation under the treaties.

As regards your complaint against the MFSA, the Commission has rightly informed you that it is the EIOPA that is in a better position to investigate complaints about a breach or non-application of EU law by a national supervisory authority^[2].

I also note that the Commission gave you the opportunity to comment on its position before it closed the case. From the information provided to the Ombudsman, it appears that you have not contested the Commission’s position. Therefore, I conclude that there was no maladministration in the way that the Commission handled your infringement complaint.

Similarly, in May 2018, you submitted a complaint to the EIOPA against the MFSA. In October 2018, the EIOPA informed you that it would not take action on your complaint.

According to its founding regulation^[3], the EIOPA can intervene only in cases where the national supervisory authorities of insurance or reinsurance undertakings^[4] (in this case, the MFSA) have breached or have not applied certain EU legal rules that fall within the EIOPA’s investigative powers.^[5]

In addition, to be admissible, a request to the EIOPA to open an investigation needs to set out “a clear grievance explaining how a competent authority has not applied the acts referred to in Article 1(2) of the Regulation, or has applied them in a way which appears to be a breach of Union law”^[6]. Moreover, when a “grievance does not relate to a clear and unconditional obligation” in such EU legal rules^[7], the EIOPA has a discretion to decide whether to open an investigation.

In this case, the EIOPA explained that the aspects of your complaint concerning the publication of annual financial statements and the alleged breach of the EU Charter of Fundamental Rights concerned legal acts that did not fall under the EIOPA’s remit of investigative power.

Regarding the liquidation procedure, the EIOPA informed you that Directive 2009/138/EC^[8] provides only a general framework for the liquidation of insurance undertakings. The liquidation procedures and their effects are principally governed by national law. The EIOPA also explained that it is for the liquidator to keep the creditors informed, not for the MFSA. In addition, Directive 2009/138/EC does not set a specific deadline to that effect.

The EIOPA has therefore provided you with detailed and reasonable explanations as to why it decided not to open an investigation into the liquidator or into the MFSA.

I therefore conclude that there was no maladministration in the way that EIOPA treated your complaint.

I hope you find these explanations helpful.

Yours sincerely,

 

Lambros Papadias
Head of Inquiries - Unit 3

Strasbourg, 26/09/2019

 

 

[1] Full information on the procedure and rights pertaining to complaints can be found at https://www.ombudsman.europa.eu/en/document/70707/.

[2] 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) (hereafter: the EIOPA founding regulation), available at: https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A32010R1094.

[3] Article 17 of the EIOPA founding regulation.

[4] Article 13 (10) of Solvency II.

[5] That is, the rules referred to in Article 1(2) of the EIOPA Regulation.

[6] Article 3(2)(i) of Internal processing rules on investigation regarding breach of Union law (hereafter: ‘Rules of Procedure’), available at: https://eiopa.europa.eu/Publications/Administrative/EIOPA__Internal-Rules_Investigation_Breach__EIOPA-BOS-11-017_.pdf.

[7] Article 5(1)(ii) of the Rules of Procedure and Annex 2 to the Rules of Procedure.

[8] Directive 2009/138/EC of the European Parliament and of the Council of 25 November 2009 on the taking-up and pursuit of the business of Insurance and Reinsurance (hereafter: Solvency II), available at: https://eur-lex.europa.eu/legal-content/en/ALL/?uri=CELEX%3A32009L0138.