In Case T‑868/16

107By the second plea of illegality, the applicants complain, in essence, that the ECB and the Eurosystem infringed Article123 TFEU by avoiding the restructuring of Greek public debt as a result of, inter alia, the conclusion and implementation of the exchange agreement of 15February 2012. In that regard, they challenge the finding in paragraph114 of the judgment of 7October 2015, Accorinti and Others v ECB (T‑79/13, EU:T:2015:756), according to which such an approach is actually required by Article123 TFEU. According to the applicants, the opposite is the case: in the event that the payment default of a Member State is imminent and the Eurosystem is in danger of losing its investments in their entirety, it would be ‘contrary to market logic and much more costly for the [Eurosystem] to prohibit it from reducing its losses by waiving certain claims’, so as to protect it from losing the entire value of its portfolio, a position which the ECB adopted before the Bundesverfassungsgericht (Federal Constitutional Court, Germany).

108The Commission and the ECB dispute the applicants’ arguments. In its reply to the Court’s written question referred to in paragraph42 above, the ECB adds that the order of 12March 2020, EMB Consulting and Others v ECB (C‑571/19P, not published, EU:C:2020:208) confirms that the present plea of illegality should be rejected.

109Aside from the fact that Article123(1) TFEU does not confer rights on individuals (see paragraphs93 to 97 above), it is sufficient to note that the present plea is inherently contradictory in that it runs counter to settled case-law which has acknowledged that, on the contrary, unconditional involvement by the Eurosystem central banks in the restructuring of Greek public debt through the PSI and the CACs would have been capable of being classified as intervention having an effect equivalent to that of direct acquisition by those central banks of State bonds, which is prohibited by Article123 TFEU (see, to that effect, judgment of 7October 2015, Accorinti and Others v ECB, T‑79/13, EU:T:2015:756, paragraph114; see also, to that effect and by analogy, judgments of 16June 2015, Gauweiler and Others, C‑62/14, EU:C:2015:400, paragraphs97 and 104, and of 11December 2018, Weiss and Others, C‑493/17, EU:C:2018:1000, paragraphs106 and 110). As the applicants themselves claim, the ECB’s conduct to which they take exception, in particular the conclusion of the exchange agreement of 15February 2012, was specifically intended to avoid the involvement of the Eurosystem central banks in the restructuring of Greek public debt that would mean sacrificing a part of the value of the Greek bonds held in their respective portfolios.

110In that regard, the applicants claim that the Court of Justice accepts, under certain conditions, that the ECB, when purchasing State bonds under a buy-back programme, such as the Outright Monetary Transactions programme, is inevitably exposed to the risk of incurring losses, in particular in the event of a haircut by the other creditors of the Member State concerned. The Court of Justice describes that risk as inherent in the purchase of such bonds on the secondary markets and states that that transaction has been authorised by the authors of the Treaties, without being conditional on the ECB having preferential creditor status (judgment of 16June 2015, Gauweiler and Others, C‑62/14, EU:C:2015:400, paragraphs125 and 126). However, acceptance of such a risk in the context of a specific programme for the buy-back of bonds does not mean that there is a contrario an absolute obligation for the ECB to accept, in every case, pari passu treatment with other creditors (see, to that effect, judgment of 7October 2015, Accorinti and Others v ECB, T‑79/13, EU:T:2015:756, paragraph102), particularly where such an approach is likely to create an effect equivalent to that of the direct purchase by the ECB of State bonds from an issuing Member State and, in particular, when it creates for all investors the certainty that their government bonds will be purchased in the future on secondary markets by the Eurosystem (see, to that effect and by analogy, judgment of 16June 2015, Gauweiler and Others, C‑62/14, EU:C:2015:400, paragraph113).

111Therefore, the present plea in law must be rejected as unfounded.

The third plea of illegality, alleging a sufficiently serious breach of the right to property guaranteed by Article17(1) of the Charter

112In the context of the third plea of illegality, the applicants submit that the contested measures, attributable to the European Union and the ECB, and the absence of Eurosystem involvement in the restructuring of Greek public debt constitute an unacceptable, unlawful and disproportionate interference, which undermines the very essence of their right to property guaranteed by Article17(1) of the Charter. Moreover, the restriction of their right to property resulting from the contested measures is not justified by any public-interest objective. The objective pursued by those measures was to reassure the official sector creditors so that they could implement the new financial assistance programme and, in particular, to proceed with the disbursement of new loans to the Hellenic Republic. However, they argue, the marginal reduction of Greek public debt of around 1.09% represented by the share held by the private creditors subject to the CACs cannot constitute a public interest justifying such a restriction on the right of ownership. In any event, the burden that it represents to private interests is disproportionate to the benefits obtained in the general public interest.

113In the alternative, the applicants take the view that their right to property has been restricted to a lesser, but nonetheless significant, degree because of the absence of involvement by the official sector creditors and, in any event, by the Eurosystem in the restructuring of Greek public debt, which did not pursue a public-interest objective. EU law, they submit, does not confer on the European Union or on the Eurosystem the power to grant preferred creditor status to certain ‘ordinary creditors of a Member State’ and the Treaties are not intended to protect the official sector creditors against the effects of sovereign debt restructuring. In any event, the measure at issue is contrary to the principle of proportionality in that it exceeds what is necessary to achieve the goal of reducing Greek public debt. The same reduction in the amount of that debt, that is to say, approximately EUR107 billion, could have been obtained and, consequently, the same purpose could have been achieved, if the official sector creditors had been involved in that restructuring on an equal footing with the private creditors, which would have resulted in a substantially reduced haircut to the face amount of the Greek bonds exchanged. The disproportionate nature of that measure is also, in their view, confirmed by the ECB’s position before the Bundesverfassungsgericht (Federal Constitutional Court), demonstrating that the objective of protecting the Eurosystem from losses which are likely to cause instability within the euro area could have been attained by other safety measures, which are, in any event, being taken by the ECB and constitute less of an interference with the applicants’ right to property. In their reply to the written question of the Court referred to in paragraph42 above, the applicants claim that the order of 12March 2020, EMB Consulting and Others v ECB (C‑571/19P, not published, EU:C:2020:208) has no effect on whether the present plea is well founded, and they continue to call into question not only whether the reduction percentage of Greek public debt was necessary and proportionate, but also the involvement of private investors.

114The Commission, the ECB, the European Council and the Council contest the applicants’ arguments. In its reply to the Court’s written question referred to in paragraph42 above, the ECB, supported by the European Council and the Council, adds that the order of 12March 2020, EMB Consulting and Others v ECB (C‑571/19P, not published, EU:C:2020:208) and 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) confirm that the present plea of illegality should be rejected.

115The right to property guaranteed by Article17(1) of the Charter, which sets out the right of every person to own his or her lawfully acquired possessions, constitutes a rule of law intended to confer rights on individuals, respect for which is a condition in order for an EU act to be lawful (see, to that effect, judgments of 20September 2016, Ledra Advertising and Others v Commission and ECB, C‑8/15P to C‑10/15P, EU:C:2016:701, paragraph66, and of 23May 2019, Steinhoff and Others v ECB, T‑107/17, EU:T:2019:353, paragraph96 and the case-law cited).

116In addition, under Article51 of the Charter, its provisions are addressed to, inter alia, the institutions of the European Union within the meaning of Article13(1) TEU– including the ECB– which are required to respect its rights, observe the principles and promote the application of the Charter (see, to that effect, judgment of 23May 2019, Steinhoff and Others v ECB, T‑107/17, EU:T:2019:353, paragraphs95 and 98).

117It follows that, in principle, a sufficiently serious breach of Article17(1) of the Charter by an institution, body, office or agency of the European Union, including by the ECB, is capable of giving rise to its non-contractual liability or to that of the European Union under the second and third paragraphs of Article340 TFEU (see, to that effect, judgment of 23May 2019, Steinhoff and Others v ECB, T‑107/17, EU:T:2019:353, paragraph97).

118In addition, the fundamental nature of that rule of law protecting individuals and the corresponding obligation for the Commission and the ECB to promote compliance with it means that those individuals are entitled to expect those institutions to draw attention to a breach of such a rule when exercising their powers or to abstain from contributing to it (see, to that effect, judgments of 20September 2016, Ledra Advertising and Others v Commission and ECB, C‑8/15P to C‑10/15P, EU:C:2016:701, paragraphs57, 59 and 66 to 75; 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, paragraph96; and of 23May 2019, Steinhoff and Others v ECB, T‑107/17, EU:T:2019:353, paragraph98).

119However, the right to property guaranteed by Article17(1) of the Charter is not absolute. Its exercise may be subject to restrictions, provided that the restrictions genuinely meet objectives of general interest pursued by the European Union and do not constitute, in relation to the aim pursued, a disproportionate and intolerable interference, impairing the very substance of the right guaranteed (see, to that effect, judgment of 20September 2016, Ledra Advertising and Others v Commission and ECB, C‑8/15P to C‑10/15P, EU:C:2016:701, paragraphs69 and 70 and the case-law cited; order of 12March 2020, EMB Consulting and Others v ECB, C‑571/19P, not published, EU:C:2020:208, paragraph42, and judgment of 23May 2019, Steinhoff and Others v ECB, T‑107/17, EU:T:2019:353, paragraph99).

120In accordance with Article52(1) of the Charter, any limitation on the exercise of the rights and freedoms recognised by the Charter must, however, be provided for by law and respect the essence of those rights and freedoms and, in observance of the principle of proportionality, limitations may be made to those rights and freedoms only if they are necessary and genuinely meet objectives of general interest recognised by the European Union or the need to protect the rights and freedoms of others (see, to that effect, judgments of 20September 2016, Ledra Advertising and Others v Commission and ECB, C‑8/15P to C‑10/15P, EU:C:2016:701, paragraph70 and the case-law cited; 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, paragraph155 and the case-law cited; and of 23May 2019, Steinhoff and Others v ECB, T‑107/17, EU:T:2019:353, paragraph100).

121In the present case, in the first place, it is common ground that Law No4050/2012, forming the subject matter of, inter alia, the opinion of the ECB of 17February 2012, made it possible to reduce the face amount of the bonds held by the applicants and, therefore, diminished their right to repayment of that value upon the maturity of the bonds (see, to that effect, judgment of 23May 2019, Steinhoff and Others v ECB, T‑107/17, EU:T:2019:353, paragraph101).

122Bonds that have reached maturity must, in principle, be repaid at their face amount. In principle, therefore, the applicants held, upon the maturity of their bonds, a pecuniary claim against the Greek State in an amount equivalent to the bonds’ face amount. The adoption of Law No4050/2012 amended those terms by introducing CACs. As stated in paragraph33 above, CACs were applicable to certain Greek bonds and specifically provided for the possibility of amending the terms governing them by means of an agreement between the Greek State and a majority of bondholders representing at least two thirds of the face amount of the bonds concerned. Under the relevant provisions of that law, an amendment made in pursuance of such an agreement becomes legally binding on all holders of Greek bonds, including those who have not consented to the proposed amendment (see, to that effect, judgment of 23May 2019, Steinhoff and Others v ECB, T‑107/17, EU:T:2019:353, paragraph102).

123Law No4050/2012 thus made it possible to force the holders of Greek bonds to be involved in the reduction of Greek public debt by devaluing the value of the bonds as soon as that reduction had been approved by the quorum of their holders. That law thus varied the rights of the holders of Greek bonds even though the terms governing their issuance did not contain review clauses (judgment of 23May 2019, Steinhoff and Others v ECB, T‑107/17, EU:T:2019:353, paragraph103).

124Following the adoption of Law No4050/2012, the Greek authorities published the characteristics of a PSI in the reduction of Greek public debt and invited the holders of the bonds concerned to be involved in a bond exchange. Since the quorum and the majority required for the planned bond exchange to go ahead were reached, all holders of Greek bonds, including those who opposed the exchange, had their bonds exchanged pursuant to Law No4050/2012, with the result that the value of those bonds fell (judgment of 23May 2019, Steinhoff and Others v ECB, T‑107/17, EU:T:2019:353, paragraph104).

125It follows that the contested measures resulted in interference with the right to property of the applicants, who encountered a substantial reduction in the face amount of the Greek bonds which they held, which was imposed upon them against their will (see, to that effect, ECtHR, 21July 2016, Mamatas and Others v. Greece, CE:ECHR:2016:0721JUD006306614, §§90 to 93).

126Further interference with the applicants’ right to property, albeit of a lesser scope, results from the absence of the involvement of the Eurosystem and the other institutional creditors, such as the EIB and the European Union, in the restructuring of Greek public debt. As the applicants claim, such involvement, representing a total face amount of EUR56674709177.59 (see paragraph10 above), would necessarily have resulted in a smaller reduction in the face amount of each of the Greek bonds concerned in order to achieve the same reduction of Greek public debt to EUR107 billion.

127In the second place, although the adoption and implementation of Law No4050/2012 thus gave rise to an interference with the applicants’ right to property, that law met general interest objectives, including that of ensuring the stability of the banking system of the euro area as a whole (see, to that effect and by analogy, judgment of 20September 2016, Ledra Advertising and Others v Commission and ECB, C‑8/15P to C‑10/15P, EU:C:2016:701, paragraphs71 and 74). Similarly, the ECtHR held, in its judgment of 21July 2016, Mamatas and Others v. Greece (CE:ECHR:2016:0721JUD006306614, §103), that the Hellenic Republic could legitimately take measures to attain the objectives of maintaining economic stability and the restructuring of debt, in the general interest of the community. At that moment, without a restructuring of Greek public debt via the contested measures, there was an appreciable risk of a further deterioration in the economic situation and the viability of the public finances of the Greek State, and even of its possible insolvency– its defaulting bonds would no longer have been acceptable to the ECB and the national central banks as collateral in Eurosystem credit operations– and, accordingly, of affecting the stability of the financial system and the functioning of the Eurosystem as a whole (see, to that effect, judgment of 23May 2019, Steinhoff and Others v ECB, T‑107/17, EU:T:2019:353, paragraphs105 and 106). Thus, the contested measures contributed to preserving both Greek public finances and the stability of the financial system in the euro area, thereby promoting the solidity of financial institutions (see, to that effect, order of 12March 2020, EMB Consulting and Others v ECB, C‑571/19P, not published, EU:C:2020:208, paragraph51, and judgment of 23May 2019, Steinhoff and Others v ECB, T‑107/17, EU:T:2019:353, paragraph138).

128In the third place, as regards the question whether the reduction in the value of the Greek bonds held by the applicants and the exclusion, in particular, of Eurosystem involvement in the restructuring of Greek public debt did not constitute, in the light of the aim pursued, a disproportionate and intolerable interference which would undermine the very substance of the right thus guaranteed, it is important to recall the following considerations, confirmed by the case-law.

129First, every creditor must bear the risk of the debtor’s insolvency, including that of a State. The purchase by an investor of State bonds is, by definition, a transaction entailing a certain financial risk, because it is subject to the hazards of movements in the financial markets. That risk is all the greater where the State issuing the bonds faces a highly unstable economic situation which determines the fluctuation in the value of those bonds, or even an appreciable risk of at least a selective default. Consequently, even before the beginning of the financial crisis in 2009, as the issuing Greek State was already faced with high indebtedness and a high deficit, the applicants must have been aware that the purchase of Greek bonds entailed a high risk of loss (see, to that effect, judgments of 7October 2015, Accorinti and Others v ECB, T‑79/13, EU:T:2015:756, paragraphs82 and 121; of 24January 2017, Nausicaa Anadyomène and Banque d’escompte v ECB, T‑749/15, not published, EU:T:2017:21, paragraph97; and of 23May 2019, Steinhoff and Others v ECB, T‑107/17, EU:T:2019:353, paragraphs108 and 109).

130In the present case, that assessment is confirmed in the light of the dates on which the Greek bonds at issue were issued and purchased, which, according to what the applicants themselves have stated, were, for most of those bonds, between January 2009 and March 2010. Most of those purchases thus occurred during a period in which the Hellenic Republic was already in a situation of extreme deficit (ECtHR, 21July 2016, Mamatas and Others v. Greece, CE:ECHR:2016:0721JUD006306614, §101) which preceded the triggering of its financial crisis in October 2009, that is to say, during a period in which its financial situation was exposed to serious disruption in the financial market, which was accentuated when their bonds suffered a significant downgrade (judgment of 24January 2017, Nausicaa Anadyomène and Banque d’escompte v ECB, T‑749/15, not published, EU:T:2017:21, paragraph97). 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 they may well have done for speculative instead of savings purposes, in the hope of obtaining a high return. Moreover, the differences of opinion within the euro area Member States and the other bodies involved, such as the Commission, the IMF and the ECB, concerning a restructuring of Greek public debt, could not have been overlooked by private creditors such as the applicants. In such exceptional circumstances, a prudent and circumspect economic operator could not have ruled out the risk of a restructuring of Greek public debt in order to avoid the risk of at least a selective default by the Hellenic Republic (see, to that effect, judgments of 7October 2015, Accorinti and Others v ECB, T‑79/13, EU:T:2015:756, paragraphs82 and 121; of 24January 2017, Nausicaa Anadyomène and Banque d’escompte v ECB, T‑749/15, not published, EU:T:2017:21, paragraphs97 and 115; and of 23May 2019, Steinhoff and Others v ECB, T‑107/17, EU:T:2019:353, paragraphs109 to 111).

131Second, it is common ground that, in view of the scale of the financial crisis to which the Greek State had been exposed since 2010, a new programme of financial assistance for it, which had been drawn up and had to be implemented at multilateral and intergovernmental levels, with the involvement of the euro area Member States, assisted, first, by the EFSF and, subsequently, by the European Stability Mechanism (‘the ESM’) established under the Treaty between the Kingdom of Belgium, the Federal Republic of Germany, the Republic of Estonia, Ireland, the Hellenic Republic, the Kingdom of Spain, the French Republic, the Italian Republic, the Republic of Cyprus, the Grand Duchy of Luxembourg, the Republic of Malta, the Kingdom of the Netherlands, the Republic of Austria, the Portuguese Republic, the Republic of Slovenia, the Slovak Republic and the Republic of Finland, concluded in Brussels on 2February 2012 and which entered into force on 27September 2012, as well as that of the IMF, had become indispensable. As the applicants themselves point out, the restructuring of Greek public debt envisaged by the contested measures, and the exclusion of the Eurosystem’s involvement in that restructuring constituted, under the bilateral and multilateral agreements concluded, preconditions for the implementation of that financial assistance (see, to that effect, ECtHR, 21July 2016, Mamatas and Others v. Greece, CE:ECHR:2016:0721JUD006306614, §116). Thus, it is apparent from the Eurogroup statement of 21February 2012 that the restructuring of Greek public debt under Law No4050/2012 was a prerequisite for the grant of additional financial assistance from State and institutional creditors. In the light of the circumstances prevailing at that stage, a wholly voluntary PSI, without CACs, would certainly not have guaranteed the participation of a sufficient percentage of private holders of Greek bonds in order to achieve the rate of deleveraging required and ultimately obtained by reducing Greek public debt by approximately EUR107 billion (ECtHR, 21July 2016, Mamatas and Others v. Greece, CE:ECHR:2016:0721JUD006306614, §104). Furthermore, in view of the risk of moral hazard correctly raised by the Commission, the ECB, the European Council and the Council, it was also not guaranteed that a PSI without CACs would have resulted in a sufficiently high participation rate to allow the release of loans from euro area Member States of up to EUR130 billion until 2014 (see the Eurogroup statement of 21February 2012). The issue of moral hazard could create a significant additional incentive for any investor or holder of Greek bonds wishing to preserve his or her assets to refuse an offer to exchange bonds voluntarily, or even to purchase more bonds in the event of a fall in their market value, in the hope that other creditors or the community in the broad sense would assume the negative consequences of his or her high-risk investment. Accordingly, the absence of CACs would not only have led to the application of a higher percentage reduction to the Greek bonds held by those who would have been willing to accept a haircut, but would also have helped to deter a large number of holders of such bonds from being involved in the deleveraging process, or even encouraged them to frustrate the implementation of its objective. The contested measures were therefore indispensable both in order to guarantee the success of the proposed restructuring of Greek public debt and to enable additional financial assistance to be granted in order to prevent, in the short term, a payment default by the Greek State and to help it, in the medium term, to control its financial crisis and to restore an economic balance. It follows that the applicants have failed to demonstrate that Law No4050/2012 was manifestly inappropriate or disproportionate for that purpose or that an exclusively voluntary PSI, without CACs, or a lower percentage haircut would have constituted equally effective but less onerous measures of achieving the public-interest objectives pursued (see, to that effect, judgment of 23May 2019, Steinhoff and Others v ECB, T‑107/17, EU:T:2019:353, paragraph112).

132In the light of the findings above, it is necessary to reject the applicants’ argument that the private holders of Greek bonds had only a negligible share of Greek public debt worth EUR2.262 billion, which represented only approximately 1.09% of the EUR206 billion covered by the bond exchange offer, with the result that their inclusion was manifestly disproportionate for the purposes of attaining the public-interest objective pursued. In any event, even if, in that regard, the applicants use a limited concept of ‘private holders’ by restricting it to natural persons or savers, as compared with institutional or professional holders or legal persons (see the fifth plea of illegality), it need only be stated that that distinction is irrelevant (see paragraphs156 to 166 below).

133Third, it is, indeed, true that the mandatory exchange of Greek bonds as a result of Law No4050/2012 and the approval by a majority of the holders of such bonds caused the face amount of those bonds to fall very significantly. New terms set out in that law and, in particular, a reduction of the face amount of those bonds were imposed on the applicants, who did not consent to the proposed amendment of the terms governing their bonds. However, the Greek legislature could legitimately introduce a haircut rate applicable horizontally on the basis of the face amount of the eligible Greek bonds, since another calculation on the basis of the market value of each of the bonds at a certain date or at their respective maturity dates would have been impracticable. The reference point for assessing the degree of the loss suffered by the applicants cannot be the amount which they hoped to receive at the time when their Greek bonds matured. Although the face amount of a bond gives an indication of the quantification of the bondholder’s claim on the maturity date, it did not represent the true market value of the Greek bonds on the date on which the Greek State adopted Law No4050/2012, namely on 23February 2012, when that value had already been affected by the declining solvency of the Greek State during 2010 and 2011, which made it possible to foresee that, on the maturity date, the Greek State would have been unable to honour its obligations under the contractual clauses included in those bonds (see, to that effect, judgment of 23May 2019, Steinhoff and Others v ECB, T‑107/17, EU:T:2019:353, paragraph113, and ECtHR, 21July 2016, Mamatas and Others v. Greece, CE:ECHR:2016:0721JUD006306614, §112).

134Fourth, the applicants cannot claim that the exclusion of Eurosystem involvement in the restructuring of Greek public debt was an unnecessary or manifestly disproportionate restriction. In the first place, as is apparent from, inter alia, the Eurogroup statement of 21February 2012, the State and institutional creditors of the Greek State had also made the additional financial assistance conditional on that exclusion. In the second place, both the conclusion and the implementation of the exchange agreement of 15February 2012, 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 powers and basic tasks in that they were intended to preserve the central banks’ scope for manoeuvre and to ensure the continuity of the smooth functioning of the Eurosystem. The latter required, inter alia, that those central banks should be able to 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, paragraphs93, 94 and 108; see also paragraph102 above), which would no longer have been possible in the event of a haircut and, therefore, in the event of selective default by the Greek State. Moreover, as stated in paragraph109 above, unconditional involvement of the Eurosystem central banks in the restructuring of Greek public debt could have been classified as intervention having an effect equivalent to that of the direct purchase by those central banks of State bonds, which is prohibited by Article123 TFEU (see, to that effect, judgments of 7October 2015, Accorinti and Others v ECB, T‑79/13, EU:T:2015:756, paragraph114, and of 24January 2017, Nausicaa Anadyomène and Banque d’escompte v ECB, T‑749/15, not published, EU:T:2017:21, paragraph98; see also, to that effect, judgments of 16June 2015, Gauweiler and Others, C‑62/14, EU:C:2015:400, paragraphs97 and 104, and of 11December 2018, Weiss and Others, C‑493/17, EU:C:2018:1000, paragraphs106 and 110).

135In the light of all the findings above, the applicants are not justified in claiming, first, that the Greek bonds held by the private creditors constituted a negligible part of Greek public debt and, second, that, if the Eurosystem had been involved in the restructuring of Greek public debt, the haircut implemented would have been significantly lower and that the Eurosystem had less onerous means of preventing the adverse effects of pari passu treatment.

136Given the nature of the property title in question, the scale and severe and virulent nature of the Greek public debt crisis, the endorsement by the Greek State and by the majority of holders of Greek bonds of an exchange incorporating devaluation of those bonds, and the magnitude of the losses sustained, neither the reduction in the value of the Greek bonds at issue implemented by the contested measures, nor the exclusion of Eurosystem involvement in the restructuring of Greek public debt constituted, in the light of the aim pursued, a disproportionate and intolerable interference which would undermine the very substance of the right to property guaranteed by Article17(1) of the Charter. Lastly, in the absence of a breach of that provision, neither the Commission nor the ECB can be criticised for having failed to draw attention to such a breach, inter alia, in the ECB’s opinion of 17February 2012 (see, to that effect, judgment of 23May 2019, Steinhoff and Others v ECB, T‑107/17, EU:T:2019:353, paragraphs114 to 116).

137Consequently, the third plea of illegality must be rejected as unfounded.

The fourth plea of illegality, alleging a sufficiently serious breach of the applicants’ rights under Article63(1) TFEU

138In support of the fourth plea of illegality, the applicants submit, in essence, that the contested measures, in particular the activation of the CACs, and, in the alternative, the exclusion of the Eurosystem from the restructuring of Greek public debt restricted the free movement of capital within the meaning of Article63(1) TFEU.

139In the first place, they argue, the activation of the retrofit CACs was decided upon by the European Union or by the ECB, as institutional actors, in the manner of a body exercising State power for the purpose of Article63 TFEU, and not in their capacity as market participants bearing the risk which their decisions entail and abiding by market logic. That decision was subject neither to the scrutiny of the private creditors nor to the majority vote of a meeting of creditors. Such a restriction is unlawful, since the objective pursued was not guided by the public interest. In any event, forcing private creditors who did not consent to the restructuring to be involved in that restructuring is disproportionate, since the total debt held by them was not sufficiently large to render Greek public debt viable.

140In the second place, the applicants claim that the decision of the European Union or the ECB to exclude the Eurosystem from involvement in the restructuring of Greek public debt also restricts the free movement of capital by arbitrarily granting the official sector creditors preferential treatment to the detriment of private creditors. That arbitrary exclusion, which is not justified by the official sector creditors’ class, does not, in their view, correspond to market conditions and deters private investors from acquiring Greek bonds. Nor does it pursue a public-interest objective, since there is no justification for that restructuring in the Treaties. In any event, the involvement of the Eurosystem, in particular, in that restructuring would not have destabilised the euro or affected price stability in the euro area, inter alia as a result of the preventive measures taken by the ECB. That exclusion is also disproportionate in that it goes beyond what is necessary to achieve such a public-interest objective, since the sustainability of Greek public debt could have been achieved by involving the official sector creditors on an equal footing with private creditors, resulting in a considerably lower write-down of the value of the Greek bonds held by the applicants.

141According to the Commission, the restructuring of Greek public debt, which provides the framework for the contested measures, does indeed constitute a restriction on the free movement of capital as referred to in Article63(1) TFEU but is objectively justified in order to achieve an objective of general interest. For its part, the ECB denies that the contested measures infringe that provision. In their replies to the Court’s written question referred to in paragraph42 above, the Commission, the ECB, the European Council and the Council add that the order of 12March 2020, EMB Consulting and Others v ECB (C‑571/19P, not published, EU:C:2020:208), confirms that the present plea of illegality should be rejected.

142Article63(1) TFEU prohibits all restrictions on the movement of capital between Member States and between Member States and third countries. Those restrictions include measures imposed by a Member State which are liable to deter, limit or prevent investors of other Member States from investing in that Member State or, conversely, to deter, limit or prevent investors of that Member State from investing in other Member States (see judgment of 23May 2019, Steinhoff and Others v ECB, T‑107/17, EU:T:2019:353, paragraph119 and the case-law cited).

143The free movement of capital enshrined in Article63(1) TFEU is one of the fundamental freedoms of the European Union which must be respected by the Member States and the EU institutions alike and, therefore, by the ECB too (see judgment of 23May 2019, Steinhoff and Others v ECB, T‑107/17, EU:T:2019:353, paragraph120 and the case-law cited).

144It must be noted that, irrespective of whether the implementation of Law No4050/2012 could have led to a restriction on the movement of capital within the meaning of Article63(1) TFEU, such a restriction, if it had been established, would be justified by overriding reasons in the public interest. The free movement of capital may be limited by national legislation provided that such legislation is justified, on the basis of objective considerations independent of the origin of the capital concerned, by overriding reasons in the public interest and observes the principle of proportionality, a condition which requires the legislation to be appropriate for ensuring the attainment of the objective legitimately pursued and not to go beyond what is necessary in order for it to be attained (see judgment of 23May 2019, Steinhoff and Others v ECB, T‑107/17, EU:T:2019:353, paragraphs121 and 122 and the case-law cited).

145In the present instance, that is the case for the contested measures and the exclusion of Eurosystem involvement in the restructuring of Greek public debt. As stated in paragraph131 above, the circumstances that led to the enactment of Law No4050/2012 were genuinely exceptional since, without restructuring, at least a selective default in the short term by the Greek State was a credible prospect. Moreover, as explained in paragraphs102 and 134 above, the contested measures and that exclusion were intended to ensure the stability of the banking system of the euro area as a whole, which is an overriding reason in the public interest (see, to that effect, judgment of 23May 2019, Steinhoff and Others v ECB, T‑107/17, EU:T:2019:353, paragraph123).

146Furthermore, the applicants have not established that the contested measures and that exclusion were disproportionate. Those measures served to restore the stability of the banking system of the euro area as a whole and it has not been demonstrated that they went beyond what was necessary to restore that stability. In particular, the involvement of private creditors in the exchange of Greek bonds on a voluntary basis only, as the applicants advocated, would not have ensured the success of that bond exchange, but would, on the contrary, have created a counter-productive incentive not to be involved. In such a situation, it would not have been guaranteed that a sufficient number of those creditors would have accepted such a voluntary exchange, given the moral hazard which it entailed (see paragraph131 above). The success of the bond exchange was a precondition for the restructuring of Greek public debt, which, in turn, was necessary to stabilise the banking system of the euro area (see, to that effect, judgment of 23May 2019, Steinhoff and Others v ECB, T‑107/17, EU:T:2019:353, paragraph124).

147Accordingly, the applicants are incorrect in claiming that the EU institutions or the ECB infringed the free movement of capital within the meaning of Article63 TFEU.

148Accordingly, the fourth plea of illegality must be rejected as unfounded.

The fifth plea of illegality, alleging a sufficiently serious breach of the right to equal treatment laid down in Article20 of the Charter

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.