In Case T‑868/16

Summary of the main arguments of the parties

149In support of the fifth plea of illegality, alleging a sufficiently serious breach of the principle of equal treatment, the applicants rely, in essence, on two parts: first, the equal treatment of different situations, which is prohibited, and, second, the different treatment of identical or comparable situations. In the first part, they dispute, inter alia, the comparability of the respective situations of two alleged distinct categories of holders of Greek bonds under the PSI, namely private investors or individual holders (‘retail bondholders’) and, in particular, savers, on the one hand, and institutional or professional investors or holders, on the other. By the second part, the applicants call into question the alleged different treatment of identical or comparable situations which, on the one hand, takes the form of the exclusion of the official sector creditors, in particular the Eurosystem, from the restructuring of Greek public debt and, on the other hand, takes the form of a discriminatory method of implementing the haircut.

150In support of the first part, the applicants submit, in essence, that, by adopting the contested measures, the Commission and the ECB disregarded the fact that the individual and institutional holders of Greek bonds were not in comparable situations and should have been treated differently. The individual holders are unsophisticated market participants, lacking sufficient means to assess the merits of a decision to invest in sovereign debt, and usually purchase smaller quantities of bonds than institutional holders, making them incapable of influencing collective decision-making. They do not trade in bonds but rather invest their life savings in them, usually on the advice of their banks. Moreover, they tend to acquire such bonds immediately after their issuance and almost always at par or a similar value, in order to earn interest (the coupon) and to collect the nominal capital at maturity. By contrast, more experienced institutional holders buy bonds in large quantities and are therefore likely to benefit from preferential treatment and lower commissions. Accordingly, euro area banks participated voluntarily in the PSI, in particular because the ECB acquired Greek bonds on the secondary market and in the context of recapitalisation schemes. Due to their size, institutional holders are in a position to negotiate with the bond issuer, as in the present case, through the IIF. The distinction between private retail investors and institutional or professional investors is acknowledged in Directive 2004/39/EC of the European Parliament and of the Council of 21April 2004 on markets in financial instruments, amending Council Directives 85/611/EEC and 93/6/EEC and Directive 2000/12/EC of the European Parliament and of the Council and repealing Council Directive 93/22/EEC (OJ 2004 L145, p.1), which provides for increased levels of protection for retail clients. In the present case, only some of the applicants invested significant amounts of money, which does not, however, in their view, make them professional investors. By buying Greek bonds at a value close to par value, or even, for some, at a price above par value, the applicants had no ambition to make a high-risk, high-yield investment. There was only one applicant who purchased bonds at 65% of their face amount, while also buying bonds at 101.3% of their face amount for EUR1450000 million and bonds at 99% of their face amount for EUR280000. By contrast, none of the applicants purchased Greek bonds at a very low price, in particular at the time of the introduction of the PSI, when some of those bonds traded for 20 to 35% of their face amount.

151In the context of the second part, relating to the exclusion of official sector creditors from the restructuring of Greek public debt, first, the applicants state, in essence, that those creditors, above all the Eurosystem, were ordinary creditors in the same way as private creditors. In that context, they submit that the relevant considerations set out in the judgment of 7October 2015, Accorinti and Others v ECB (T‑79/13, EU:T:2015:756, paragraphs85 to 103), must be read in the light of the judgments of 27November 2012, Pringle (C‑370/12, EU:C:2012:756, paragraphs53 to 55), and of 16June 2015, Gauweiler and Others (C‑62/14, EU:C:2015:400), regarding the limits of monetary policy and its relation with economic policy. According to the applicants, the restructuring of Greek public debt is a matter of economic policy and the mere fact that it could have had an impact on monetary policy cannot transform the absence of official sector involvement, in particular that of the Eurosystem, into a monetary policy measure for the purposes of Article127(1) and (2) TFEU, Article282(1) TFEU and the first and second indents of Article18(1) of the ESCB Statute. In any event, the different and preferential treatment of Greek bonds held by official sector creditors and, in particular, by the Eurosystem does not pursue an aim in the public interest. Its involvement in that restructuring would have represented only a small reduction in the value of its portfolio without jeopardising the Eurosystem, particularly in view of the ECB’s statement before the Bundesverfassungsgericht (Federal Constitutional Court) that it had ensured sufficient risk prevention, mostly through provisions and reserves and that, if there were losses, those losses could be carried forward and balanced with revenues in the following years. Article123 TFEU cannot be interpreted as precluding the Eurosystem from waiving certain claims arising from State bonds. On the contrary, where a Member State is faced with an imminent payment default on its debt, it is in conformity with market conditions and the risk associated with purchasing bonds on the secondary market for the Eurosystem to accept equal treatment with other bondholders if, in a meeting of creditors, a majority votes for a reduction of the debt. They claim that the absolute protection reserved for the official sector creditors during the restructuring of Greek public debt therefore infringes Article20 of the Charter.

152Second, as regards the structure of the haircut imposed, the applicants argue, in essence, that one of the essential characteristics of the restructuring of Greek public debt was that each bondholder was offered the same, and only one, package of new bonds, while the eligible bonds had residual maturities ranging from a date close at hand, 20March 2012, to 45 years. Since coupon rates had typically been between 4 and 6% (well below the exit yields), the present value of the long-term bonds was well below that of the short-term bonds with the same face amount. As a result, short-term bonds– for which creditors were asked to give up full repayment when maturity was imminent– were subject to a far more significant haircut, that is to say up to 80%, than the long-term bonds, the face amount of which had depreciated drastically in the high-yield environment prevailing in Greece after the debt exchange. According to the applicants, that one-size-fits-all approach, the sole purpose of which was to accelerate the closing of the PSI by 20March 2012, the date on which a considerable bond repayment of EUR14.4 billion was due, constitutes a flagrant infringement of the principle of equality, since radically different situations were treated in the same way. However, a ‘bond by bond’ restructuring would have been technically feasible and would have allowed the Hellenic Republic to offer a different package to bondholders, depending on the maturities of the bonds concerned.

153The Commission, the ECB, the European Council and the Council contest the applicants’ arguments. In their replies to the Court’s written question referred to in paragraph42 above, the European Council and the Council add that the judgment of 16December 2020, Council and Others v K.Chrysostomides & Co. and Others (C‑597/18P, C‑598/18P, C‑603/18P and C‑604/18P, EU:C:2020:1028) confirms that the present plea of illegality must be rejected.

Findings of the Court

–Summary of the case-law

154The principle of equal treatment, as a general principle of EU law, requires comparable situations not to be treated differently and different situations not to be treated in the same way, unless such treatment is objectively justified. In addition, a breach of the principle of equal treatment as a result of different treatment is based on the premiss that the situations concerned are comparable, having regard to all the elements which characterise them (see judgment of 16December 2020, Council and Others v K.Chrysostomides & Co. and Others, C‑597/18P, C‑598/18P, C‑603/18P and C‑604/18P, EU:C:2020:1028, paragraphs191 and 192 and the case-law cited).

155It is in the light of those case-law principles that the first and second parts of the present plea must be examined.

–The first part, alleging equal treatment despite the lack of comparability between private investors and institutional or professional investors

156As regards the first part, the applicants are incorrect in claiming that private investors, in particular savers who invested in Greek bonds were not, for the purposes of the PSI, in a situation comparable to that of institutional or professional investors or holders which do not, according to the terms chosen by the applicants, come within the category of official sector creditors.

157First, the applicants do not dispute that, like certain institutional or professional investors, natural or legal persons with significant financial capacity, such as, in the present case, the company QJ, which held Greek bonds with a total face amount of EUR22650000, are capable of acquiring substantial quantities of State bonds (see, to that effect, ECtHR, 21July 2016, Mamatas and Others v. Greece, CE:ECHR:2016:0721JUD006306614, §§137 and 138). This shows in itself that the financial capacity or the volume of bonds purchased are not, in all cases, relevant criteria for differentiating between private investors and institutional or professional investors. The same is true of the criterion relating to expertise and financial knowledge, which may vary in each of the two groups of investor envisaged by the applicants, as all of those groups are likely to have recourse to advice from experts in the field. Moreover, the assertion that the investment decisions of the majority of private investors in State bonds are, unlike those of institutional or professional investors, primarily guided by the desire to invest in savings, given that, like the applicants, a large number of individuals were prompted, during the Greek financial crisis, to invest significant sums in Greek bonds despite the high risk associated with that investment, has not been established (see, in particular, the facts giving rise to the judgments of 7October 2015, Accorinti and Others v ECB, T‑79/13, EU:T:2015:756, and of 23May 2019, Steinhoff and Others v ECB, T‑107/17, EU:T:2019:353, confirmed by order of 12March 2020, EMB Consulting and Others v ECB, C‑571/19P, not published, EU:C:2020:208).

158Second, as has already been stated in paragraph130 above, that assessment is confirmed, in the present case, in the light of the dates of issue and purchase of most of the Greek bonds at issue, which, according to the applicants’ own statements, were between January 2009 and March 2010, that is to say, during periods in which the Greek State was already in an situation of extreme deficit or was exposed to serious disruption in the financial market, which was accentuated when their bonds suffered a significant downgrade. It must therefore be held that, at least so far as concerns purchases of bonds issued from 2010 onwards, the applicants made high-risk investments, which may well have been guided by speculative instead of savings purposes, in the hope of obtaining a high return. To that extent, the applicants’ decisions to invest in the Greek bonds were comparable to those of other institutional or professional investors pursuing the same objectives (see, to that effect, judgment of 24January 2017, Nausicaa Anadyomène and Banque d’escompte v ECB, T‑749/15, not published, EU:T:2017:21, paragraphs97 and 115).

159Third, the primary motivation, referred to above, underlying the investment decisions at issue constituted a differentiation or comparison criterion that was both relevant and sufficient for the purposes of applying the principle of equal treatment to the private creditors subject to the PSI, including the applicants, and more specifically for the purposes of comparing the respective situations of those investors, in addition to the fact that they all held Greek bonds. However, that is not the case for any reasons ancillary or additional to that primary motivation, which may also have influenced the decision of those investors to purchase Greek bonds. Both in theory and in practice, it is impossible to distinguish clearly between investors who acted purely privately, as savers, and those who acted in the context of an institutional or professional activity, even speculatively, or to distinguish sufficiently between natural or legal persons who may have belonged to one of those two groups of investors. Such a distinction would not only be artificial, but would also require a detailed check of the genuine reasons, which would necessarily be subjective, that guided the investment decisions at issue, which would risk making the inclusion of an investor in one or other category highly uncertain (see, to that effect, ECtHR, 21July 2016, Mamatas and Others v. Greece, CE:ECHR:2016:0721JUD006306614, §137).

160It would have been very difficult and time-consuming to draw, for the purposes of the PSI, a clear distinction between private investors, who might be natural or legal persons, on the one hand, and institutional or professional investors, on the other, or even to identify solely the ‘savers’ among the first category of investors. In addition, in order to determine the precise distribution of Greek public debt among those investors, it would have been necessary to prohibit or ‘freeze’ the bond exchange from a given moment before the adoption of Law No4050/2012 in order to establish the basis for a non-discriminatory waiver of the PSI of certain investors meeting certain objective criteria, but which would nevertheless have been difficult to establish. However, the mere announcement of such an approach before that date could have given rise to a massive transfer of bonds to the categories of exempted bondholders, which would have jeopardised the very success of the planned restructuring of Greek public debt through PSI (see, to that effect, ECtHR, 21July 2016, Mamatas and Others v. Greece, CE:ECHR:2016:0721JUD006306614, §§137 and 138).

161That assessment is not contradicted by the information note of the GLK of 24February 2012, which had identified Greek bonds acquired by natural persons on the primary and secondary markets of bonds with a respective total value of EUR1.3 billion and EUR962 million, without explaining the relevant legal and factual criteria on which those findings were based. Nor is it called into question by the applicants’ vague and ambiguous argument– which is most likely based on a finding of the ECtHR which was merely intended to summarise the applicants’ arguments in that other case (ECtHR, 21July 2016, Mamatas and Others v. Greece, CE:ECHR:2016:0721JUD006306614, §76)– according to which natural persons held only 1.09% of Greek public debt.

162Fourth, even on the assumption that, owing to the significance of their position as creditors and their greater financial capacity, certain institutional or professional investors– who are usually legal persons– are generally more suited than private investors or savers to negotiating with a State bond issuer and to influencing its decisions on the management of its public debt, it is impossible to establish a clear and practical demarcation line between those institutional or professional investors, on the one hand, and those whose size and economic capacity are clearly lower or the natural persons undertaking a business or professional activity, on the other. In addition, without prejudice to their status as a legal or natural person, it has not been established that ‘small’ private investors or savers were unable to organise themselves and influence the decision-making process that led to the adoption of Law No4050/2012 or, at the very least, the outcome of the bond exchange offer procedure by attempting to achieve a blocking minority in order to prevent the activation of the CACs, for example, by making use of consumer protection, small investor or saver associations.

163Therefore, the differentiating factors put forward by the applicants to show that private investors and institutional and professional investors were not, as holders of Greek bonds, in comparable situations are neither substantiated nor relevant in the light of the objective of the contested measures, namely that of ensuring the restructuring of Greek public debt in order to make it viable. In that context, any savings-related purpose or other secondary economic reason which led a private creditor subject to the PSI to invest in Greek bonds does not constitute a relevant distinguishing factor in the light of that objective (see, to that effect, judgment of 16December 2020, Council and Others v K.Chrysostomides & Co. and Others, C‑597/18P, C‑598/18P, C‑603/18P and C‑604/18P, EU:C:2020:1028, paragraph200, and ECtHR, 21July 2016, Mamatas and Others v. Greece, CE:ECHR:2016:0721JUD006306614, §§134 and 137). On the contrary, for the purposes of that objective, those persons were, a priori, in identical or comparable situations, given that they had acquired Greek bonds solely in their private pecuniary interest, or even for profit or speculative purposes, and given that they had accepted the associated risk of loss while being aware of the financial crisis that the Hellenic Republic was facing at that time.

164Furthermore, even if the differentiation alleged by the applicants were regarded as being relevant in the light of the principle of equal treatment, it would not have been possible to draw a distinction between the alleged ‘small savers’ and ‘big investors’ by setting, inter alia, an investment threshold of EUR100000, below which the bonds could have been exempted from the PSI. As stated in paragraph160 above and as the ECtHR held (ECtHR, 21July 2016, Mamatas and Others v. Greece, CE:ECHR:2016:0721JUD006306614, §§137 and 138), a mere announcement explaining that such an exemption was to be introduced would have resulted in a huge transfer of such bonds to categories of exempted bondholders, which could have jeopardised the success of the PSI as a whole. In addition, the applicants have failed to demonstrate that, following the adoption of Law No4050/2012, it would have been possible to introduce such a differentiation lawfully, since that law had already established clearly the criteria governing the PSI and the activation of the CACs for all eligible Greek bonds, without, however, providing for possible exemptions.

165Nor is the distinction made by the applicants between private investors and institutional or professional investors substantiated by the provisions of Directive 2004/39. Even though the aim of that directive was to protect ‘retail clients’ as well as investors in ‘securities’ such as marketable debt instruments and bonds, that protection was only preventive and related only to how ‘investment firms’, including commercial banks, offered, sold and managed those securities (see, in particular, recital44 and Article19 concerning transparency requirements for transactions and the conduct of business rules for the provision of investment services to clients). Similarly, in so far as that directive laid down specific obligations for investment firms to provide information to their clients concerning, in particular, the quality of the services provided and the proposed financial instruments, including appropriate information on ‘the risks associated with investments in those instruments or in respect of particular investment strategies’ (second indent of Article19(3)), those obligations did not relate to the consequences of the materialisation of such risks or, a fortiori, to the question of whether ‘retail clients’ had or had not to be treated in the same way as ‘professional clients’, which included credit institutions, in the context of the restructuring of sovereign debt.

166Thus, since the applicants have failed to establish to the requisite legal standard that they were in a situation different from that of other private holders of Greek bonds, including institutional or professional investors, the first part alleging a sufficiently serious breach of the principle of equal treatment must be rejected, without it being necessary to rule on whether there is any objective justification for the equal treatment at issue.

–The second part, alleging different treatment on account of the exclusion of official sector creditor involvement, in particular that of the Eurosystem, in the restructuring of Greek public debt

167As regards the second part, alleging, in particular, different treatment of the situation of private investors, including the applicants, on the one hand, and that of the official sector creditors, in particular the Eurosystem central banks, on the other, it is necessary to recall the established case-law of the Court rejecting similar complaints (judgments of 7October 2015, Accorinti and Others v ECB, T‑79/13, EU:T:2015:756, paragraphs88 to 92, and of 24January 2017, Nausicaa Anadyomène and Banque d’escompte v ECB, T‑749/15, not published, EU:T:2017:21, paragraphs108 and 117), which the applicants attempt, in vain, to call into question.

168In the first place, the applicants proceed from an incorrect premiss by claiming that all individuals who acquired Greek bonds, as ‘private’ savers or creditors of the Hellenic Republic, on the one hand, and the ECB and Eurosystem national central banks, on the other hand, were, in the light of the principles and the objectives of the relevant rules on which the actions complained of were based, in a comparable, or indeed identical, situation, for the purposes of the application of the general principle of equal treatment. That argument fails, in particular, to have regard to the fact that, by purchasing Greek bonds, notably on the basis of Decision 2010/281, the ECB and those national central banks acted in the exercise of their basic tasks, pursuant to Article127(1) and (2) TFEU and, in particular, the first indent of Article18(1) of the ESCB Statute, with the aim of maintaining price stability and the sound administration of monetary policy, and also within the limits defined by the provisions of that decision (see recital5 of that decision) (see, to that effect, judgments of 7October 2015, Accorinti and Others v ECB, T‑79/13, EU:T:2015:756, paragraph88, and of 24January 2017, Nausicaa Anadyomène and Banque d’escompte v ECB, T‑749/15, not published, EU:T:2017:21, paragraph111).

169Thus, the programme for the purchase of State bonds, including Greek bonds, established by Decision 2010/281, was expressly based on the first indent of Article127(2) TFEU and, in particular, on Article18(1) of the ESCB Statute and formed, in the face of the financial crisis to which the Greek State was exposed, part of the context of ‘the current exceptional circumstances in financial markets, characterised by severe tensions in certain market segments which [were] hampering the monetary policy transmission mechanism and thereby the effective conduct of monetary policy oriented towards price stability in the medium term’. According to that decision, that programme was therefore intended to ‘form part of the Eurosystem’s single monetary policy’ to ‘address the malfunctioning of securities markets and restore an appropriate monetary policy transmission mechanism’ (recitals2 to 4 of that decision). Those reasons are not disputed as such by the applicants, who merely base the comparability of the situations at issue on the sole fact that both the private investors and the Eurosystem central banks which acquired Greek bonds are creditors of the Greek State enjoying equal rights (see, to that effect, judgments of 7October 2015, Accorinti and Others v ECB, T‑79/13, EU:T:2015:756, paragraphs89, and of 24January 2017, Nausicaa Anadyomène and Banque d’escompte v ECB, T‑749/15, not published, EU:T:2017:21, paragraph112).

170The bond purchase programme and, therefore, the purchase by the Eurosystem central banks of State bonds, including Greek State bonds, formed part of the basic tasks of the ESCB within the meaning of Article127(1) and (2) TFEU, read in conjunction with Article282(1) TFEU. Specifically, those measures were based on the power provided for in the first indent of Article18(1) of the ESCB Statute, under which, ‘in order to achieve the objectives of the ESCB and to carry out its tasks, the ECB and the national central banks may’, in particular, ‘operate in the financial markets by buying and selling outright (spot and forward)… claims and marketable instruments, whether in euro or other currencies…’. It follows from the latter provision, moreover, that the sole purpose of the purchase by those central banks of State bonds on the secondary market is to achieve the objectives of the ESCB and to carry out its tasks, which precludes any reason not covered by that purpose, in particular the intention to obtain higher yields by investments, or even by speculative operations (judgment of 24January 2017, Nausicaa Anadyomène and Banque d’escompte v ECB, T‑749/15, not published, EU:T:2017:21, paragraph113; see also, to that effect, judgment of 7October 2015, Accorinti and Others v ECB, T‑79/13, EU:T:2015:756, paragraph90).

171Consequently, it must be held that the applicants, as private investors or savers who acted on their own behalf and in their exclusively private interest to obtain the maximum return on their investments, were in a different situation from that of the Eurosystem central banks. Even though, under the applicable private law, when purchasing State bonds those central banks, like the private investors, acquired the status of creditors of the issuing and debtor State, that single point in common cannot justify their being regarded as being in a comparable, or indeed identical, situation to that of those investors. In fact, such an approach, taken solely from the viewpoint of private law, does not take account of either the legal framework of the operation involving the purchase of those bonds by the central banks or the public-interest objectives which those banks were called upon to pursue in that context under the applicable rules of primary law, the principles and objectives of which must be taken into consideration when assessing the comparability of the situations in question in the light of the principle of equal treatment (see, to that effect, judgments of 7October 2015, Accorinti and Others v ECB, T‑79/13, EU:T:2015:756, paragraph91, and of 24January 2017, Nausicaa Anadyomène and Banque d’escompte v ECB, T‑749/15, not published, EU:T:2017:21, paragraph114).

172It must therefore be concluded that the applicants, as private investors who purchased Greek bonds solely in their private pecuniary interest, whatever the precise reason for their investment decisions may have been, were in a different situation from that of the Eurosystem central banks whose investment decision was exclusively guided by objectives in the public interest, as referred to in Article127(1) and (2) TFEU, read in conjunction with Article282(1) TFEU and also the first indent of Article18(1) of the ESCB Statute. Thus, as the situations at issue were not comparable, the conclusion and implementation of the exchange agreement of 15February 2012 cannot constitute a breach of the principle of equal treatment (see, to that effect, judgment of 7October 2015, Accorinti and Others v ECB, T‑79/13, EU:T:2015:756, paragraph92).

173In the second place, in the present case, the applicants do not put forward any additional or new argument that might lead the Court to alter that case-law. In particular, contrary to what they claim, it is clear from the findings above that the implementation of both the bond purchase programme and the exchange agreement of 15February 2012 constituted monetary policy measures within the meaning of Article127(1) and (2) TFEU, Article282(1) TFEU and the first and second indents of Article18(1) of the ESCB Statute.

174That assessment is borne out by the case-law of the Court of Justice, according to which, in order to determine whether a measure comes within the area of monetary policy, it is necessary to refer principally to the objectives of that measure and to the instruments which the measure employs in order to attain those objectives. When a specific bond purchase programme is intended, first, to achieve the objective of safeguarding the singleness of monetary policy, it contributes to the achievement of the objectives of that policy, in so far as it must, in accordance with Article119(2) TFEU, be ‘single’. Furthermore, in so far as such a programme aims, second, to safeguard an appropriate transmission of monetary policy, that objective is both such as to preserve the singleness of monetary policy and to contribute to its primary objective, which is to maintain price stability. The ability of the Eurosystem to influence price developments by means of its monetary policy decisions in fact depends, to a great extent, on the transmission of the impulses which the Eurosystem sends out across the money market to the various sectors of the economy, which means that, if the monetary policy transmission mechanism is disrupted, that is likely to render the Eurosystem’s decisions ineffective in a part of the euro area and, accordingly, to undermine the singleness of monetary policy. Moreover, since disruption of the transmission mechanism undermines the effectiveness of the measures adopted by the Eurosystem, that necessarily affects the Eurosystem’s ability to guarantee price stability. It follows that measures that are intended to preserve that transmission mechanism may be regarded as pertaining to the primary objective laid down in Article127(1) TFEU. The fact that such a bond purchase programme might also be capable of contributing to the stability of the euro area, which is a matter of economic policy, does not call that assessment into question, since a monetary policy measure cannot be treated as equivalent to an economic policy measure merely because it may have indirect effects on the stability of the euro area (see, to that effect, judgments of 16June 2015, Gauweiler and Others, C‑62/14, EU:C:2015:400, paragraphs46 to 52 and the case-law cited, and of 11December 2018, Weiss and Others, C‑493/17, EU:C:2018:1000, paragraphs61 and 63).

175As regards the means to be used for achieving the objectives of the Eurosystem and for performing its tasks as well as for achieving the objectives of such a purchase programme, the Court of Justice has held, in essence, that the implementation sought by that programme would entail outright monetary transactions on secondary sovereign debt markets, within the meaning of Article18(1) of the ESCB Statute (see, to that effect, judgments of 16June 2015, Gauweiler and Others, C‑62/14, EU:C:2015:400, paragraphs53 and 54, and of 11December 2018, Weiss and Others, C‑493/17, EU:C:2018:1000, paragraph69). It concluded, inter alia, that, in the light of the objectives of such a bond purchase programme and the means provided for achieving them, that programme fell within the field of monetary policy, and rejected the argument that the implementation of such a bond purchase programme is made conditional upon full compliance with EFSF or ESM macroeconomic adjustment programmes and that it could, where appropriate, indirectly increase the impetus to comply with those programmes, the implementation of which pursues economic-policy objectives. According to the Court of Justice, such indirect effects do not mean that such a programme must be treated as equivalent to an economic policy measure, since it is apparent from Article119(2) TFEU, Article127(1) TFEU and Article282(2) TFEU that, without prejudice to the objective of price stability, the Eurosystem is to support the general economic policies in the European Union (see, to that effect, judgment of 16June 2015, Gauweiler and Others, C‑62/14, EU:C:2015:400, paragraphs55 to 59).

176The Court of Justice concluded that the fact that the purchase of government bonds on the secondary market subject to a condition of compliance with a macroeconomic adjustment programme could be regarded as falling within economic policy when the purchase was undertaken by the ESM did not mean that this should equally be the case when that instrument was used by the Eurosystem in the framework of a bond purchase programme. In that regard, the difference between the objectives of the ESM and those of the Eurosystem is decisive. Whilst such a programme may be implemented only in so far as is necessary for the maintenance of price stability, the ESM’s intervention, for its part, is intended to safeguard the stability of the euro area, that objective not falling within monetary policy (see, to that effect, judgment of 16June 2015, Gauweiler and Others, C‑62/14, EU:C:2015:400, paragraphs63 and 64 and the case-law cited).

177It follows from the findings above that, even if the restructuring of Greek public debt falls primarily within the scope of economic policy and, therefore, within the competence of the Member States– which is consonant with the Greek legislature’s adoption of Law No4050/2012 in the present case– the fact remains that all the accompanying measures adopted by the Eurosystem under Article127(1) and (2) TFEU, Article282(1) TFEU and the first and second indents of Article18(1) of the ESCB Statute form part of monetary policy. That is all the more true given that such restructuring is likely to have significant repercussions on the pursuit of the primary objective of monetary policy, namely maintaining price stability, and on the smooth operation of payment systems. However, the mere fact that those accompanying measures were supposed to support economic policy measures in the strict sense, that is to say, the recovery of the financial situation of the Hellenic Republic, does not mean that they may be treated on an equal footing. That concerns not only the purchase by the Eurosystem central banks on the secondary bond market of Greek bonds under a bond purchase programme for the purposes of the first indent of Article18(1) of the ESCB Statute (see Decision 2010/281 referred to in paragraph7 above), but also any other measure linked to the management of such bonds, including sale or swapping as actus contrarius, in particular in the context of the exchange agreement of 15February 2012.

178The conclusion and implementation of that exchange agreement, which were intended to enable the Eurosystem central banks to escape the PSI and the application of the CACs, formed part of the exercise of the Eurosystem’s competences and basic tasks in that they sought to preserve the central banks’ scope for manoeuvre and to ensure the continuity of the smooth functioning of the Eurosystem. The latter objective was based on the premiss, in particular, that those central banks could continue to accept Greek bonds as appropriate collateral for the purposes of Eurosystem credit operations within the meaning of the second indent of Article18(1) of the ESCB Statute (see, to that effect, judgment of 7October 2015, Accorinti and Others v ECB, T‑79/13, EU:T:2015:756, paragraph108), which would not have been possible if those bonds had a low rating, let alone if they were subject to a haircut, that is to say, a selective default (see Guideline 2011/817/EU of the ECB of 20September 2011 on monetary policy instruments and procedures of the Eurosystem (ECB/2011/14) (OJ 2011 L331, p.1) and AnnexI thereto, headed ‘General documentation on Eurosystem monetary policy instruments and procedures’, Sections 6.3.1 and 6.3.2 of which set out the criteria governing both the minimum requirement for high credit standards, or the credit quality threshold, and the high credit standards for marketable assets). In that regard, it should be recalled that, by Decision 2010/268/EU of 6May 2010 on temporary measures relating to the eligibility of marketable debt instruments issued or guaranteed by the Greek Government (ECB/2010/3) (OJ 2010 L117, p.102), in response to the Greek financial crisis, the ECB had even been led temporarily to suspend, on an exceptional basis, ‘the Eurosystem’s minimum requirements for credit quality thresholds, as specified in the Eurosystem credit assessment framework rules for marketable assets in Section6.3.2 of the General documentation’ (Article1(1) of that decision) in order to allow the Eurosystem to continue to accept Greek bonds as ‘eligible collateral for the purposes of Eurosystem monetary policy operations, irrespective of their external credit rating’ (Article2 of that decision) (see, to that effect, judgment of 7October 2015, Accorinti and Others v ECB, T‑79/13, EU:T:2015:756, paragraphs6 and 7).

179Consequently, the applicants’ arguments concerning the classification of the exclusion of the Eurosystem from the restructuring of Greek public debt as an economic policy measure must be rejected as unfounded. The same applies to the arguments based on the observations made by the ECB before the Bundesverfassungsgericht (Federal Constitutional Court) and on the infringement of Article123(1) TFEU, which have already been rejected in the context of the examination of the second plea of illegality (see paragraphs109 and 110 above).

180In the third place, in so far as the applicants claim that the EIB and the Commission, or even the European Union, were treated differently, it is true that the Greek bonds held by those institutional creditors were also excluded from the PSI and from the application of the CACs (see paragraph29 above), although they were not subject to the exchange agreement of 15February 2015.

181However, as regards the EIB’s status as a holder of State bonds, it is apparent from the public-interest mission entrusted to that body, under Article309 TFEU, read in conjunction with Article18(1), Article21(1) to (3) and Article26(2) of Protocol (No5) on the Statute of the EIB, that it was also in a situation distinct from that of the private holders of Greek bonds.

182Article309 TFEU provides that ‘the task of the [EIB] shall be to contribute, by having recourse to the capital market and utilising its own resources, to the balanced and steady development of the internal market in the interest of the Union’ and that ‘for this purpose the [EIB] shall, operating on a non-profit-making basis, grant loans and give guarantees which facilitate the financing of the following projects in all sectors of the economy’. Similarly, Article21(1) to (3) of Protocol (No5) empowers the EIB, inter alia, to invest on the money markets, to buy or sell securities and to carry out any other financial operation linked with its objectives (paragraph1) while requiring it to act ‘in agreement with the competent authorities or with the national central bank of the Member State concerned’. Finally, Article26(2) of that protocol provides that ‘the property of the [EIB] shall be exempt from all forms of requisition or expropriation’. Thus, mandatory involvement of the EIB in the restructuring of Greek public debt, which amounted to interference with the right to property (see paragraphs121 to 126 above) and, therefore, to a form of ‘expropriation’, would have been such as to infringe the prohibition laid down in Article26(2) of Protocol (No5), the purpose of which is to preserve the EIB’s public-interest tasks under Article309 TFEU.

183Therefore, in view of the fact that the EIB was in a factual and legal situation different from that of the private investors, its exclusion from the restructuring of Greek public debt cannot give rise to a sufficiently serious breach of the applicants’ right to equal treatment.

184As regards the European Union’s situation as creditor, it should be noted that the European Union is, inter alia, represented by the Commission, in its capacity as budgetary authority within the meaning of Article317 TFEU, and, more specifically, in carrying out ‘financial operations’ within the meaning of the second paragraph of Article321 TFEU, and in implementing the financial rules within the meaning of Article322(1)(a) TFEU, read in conjunction with Council Regulation (EC, Euratom) No1605/2002 of 25June 2002 on the Financial Regulation applicable to the general budget of the European Communities (OJ 2002 L248, p.1), as repealed by Regulation (EU, Euratom) No966/2012 of the European Parliament and of the Council of 25October 2012 on the financial rules applicable to the general budget of the Union (OJ 2012 L298, p.1), which made provision for, inter alia, the recording, in the budget of the Communities or the European Union, of the guarantees for borrowing-and-lending operations entered into by the Communities or the European Union (Article4(3) of Financial Regulation No1605/2002; Article7(2) of Financial Regulation No966/2012). In addition, as the Commission submitted at the hearing, under the third sentence of Article1 of Protocol (No7) on the privileges and immunities of the European Union, ‘the property and assets of the Union shall not be the subject of any administrative or legal measure of constraint without the authorisation of the Court of Justice’.

185It must therefore be held that the Greek bonds held by the European Union were not only part of its budget and were managed, in part, by the Commission, as budgetary authority, and, in part, by the EIB, in the public interest of the European Union, but also benefited from special protection against acts of expropriation on the part of the Member States. It was in that interest that, first, the Commission held a first portfolio of bonds with a face amount of EUR46 million on behalf of the European Coal and Steel Community (ECSC) in liquidation, and a second portfolio of bonds with a face amount of EUR5 million held by the Joint Sickness Insurance Scheme of the institutions of the European Communities (JSIS). Second, the EIB managed three portfolios of Greek bonds with a face amount of EUR55.7 million, of which EUR40.7 million were held by the Guarantee Fund for external actions established by Council Regulation (EC, Euratom) No480/2009 of 25May 2009 (OJ 2009 L145, p.10), EUR10 million were held by the Risk Sharing Finance Facility, and EUR5 million were held by the Loan Guarantee Instrument for Trans-European Transport Network Projects.

186It follows that the applicants are not justified in claiming that the private holders who invested in Greek bonds solely in their private pecuniary interests were in a situation comparable to that of the European Union, as holder of Greek bonds for the sole purpose of managing and preserving its budget and implementing its policies and tasks in the public interest.

187Accordingly, the complaint that private investors were treated differently as compared with the European Union must also be rejected.

188In the fourth place, as regards the allegedly discriminatory nature of the haircut and the uniform or equal criteria governing new bonds offered by the Greek State, which failed to take into account the different characteristics of the bonds exchanged under the PSI, in particular as concerns the remaining terms, coupons and current market value, suffice it to note that, in its judgment of 21July 2016, Mamatas and Others v. Greece (CE:ECHR:2016:0721JUD006306614, §§133, 135 and 138), the ECtHR rejected a similar complaint and upheld the legality of the judgment of the Symvoulio tis Epikrateias (Council of State, Greece) No1116/2014, of 21March 2014 in that regard. As stated in paragraph133 above, calculating the haircut on the basis of the market value of each of the bonds at a certain date, that value having already been severely affected by the reduction in the solvency of the Greek State, and their respective maturities would have been impracticable. Moreover, in the context of restructuring public debt under a CACs mechanism, it does not appear illogical to harmonise the conditions of issue, including the coupons and maturities, of new bonds, the financing of which must be guaranteed with the support of a third-party intergovernmental organisation, namely, in this case, the EFSF and the ESM. Accordingly, the applicants have not established that a ‘bond-by-bond’ restructuring would have been technically feasible and sufficient to achieve the public-interest objectives pursued. On the contrary, given that those objectives could be achieved effectively only on the basis of the face amount of the eligible Greek bonds, that criterion was both relevant and appropriate for comparing the situations at issue in the light of the objectives pursued, for the purposes of applying the principle of equal treatment.

189In those circumstances, that complaint must be rejected, without there being any need to examine the applicants’ argument that a ‘bond-by-bond’ comparison would have given them an advantage or would have justified distinguishing them from other private bondholders, having regard to the quality of the Greek bonds which they held.

190It follows from the foregoing that the plea of illegality alleging a sufficiently serious breach of the principle of equal treatment must be rejected in its entirety.

191Consequently, in the light of all the findings above, in the absence of a sufficiently serious breach of a rule of law protecting the applicants capable of causing the European Union or the ECB to incur non-contractual liability, the action must be dismissed, without it being necessary to rule on the causal link or the alleged damage.