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The End of Impunity? The Legal Duties of ‘Borrowed’ EU Institutions under the European Stability Mechanism Framework: ECJ 20 September 2016, Case C-8/15 to C-10/15, Ledra Advertising et al. v European Commission and European Central Bank

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MA (College of Europe), LLM (NYU), PhD Candidate in EU Law, Maastricht University. I am grateful to Professor Monica Claes and Professor Elise Muir for their comments on an earlier draft. Any remaining errors are my own.

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1 ECJ 27 November 2012, Case C-370/12, Pringle v Ireland.

2 As provided by Art. 13(3) ESM Treaty, which itself codifies what had been the practice since the start of the Eurocrisis.

3 See Euro Group statement of 27 June 2012.

4 Law on the resolution of credit and other institutions, EE, Annex I(I), No. 4379, 22 March 2013.

5 Decree of 2013 on the bailing-in of Trapeza Kyprou Dimosia Etaireia Ltd, Regulatory Administrative Act No. 103, EE, Annex III(I), No. 4645, 29 March 2013, p. 769.

6 Decree of 2013 on the sale of certain operations of Cyprus Popular Bank Public Co. Ltd., Regulatory Administrative Act No. 104, EE, Annex III(I), No. 4645, 29 March 2013, p. 781.

7 See press release of the ESM, ‘ESM Board grants stability support to Cyprus’, 24 April 2013.

8 Paras. 1.23-1.28 of the Memorandum of Understanding.

9 Contrary to a bail-out, which involves the financial intervention of external actors (such as the relevant government or supranational organisations), a bail-in places the burden of the re-capitalisation of the failing financial institution on creditors, through debt write-down.

10 Holding more than €100,000 on their accounts.

11 Those losses ranged from €480,000 to €1,600,000. See Opinion of Advocate General Wahl, 21 April 2016, Case C-8/15 to C-10/15, Ledra Advertising v European Commission and ECB, para. 2.

12 Six applications were lodged before the General Court. Orders in these cases (all identical in substance) were issued on 10 November 2014: Case T-289/13, Ledra Advertising; Case T-290/13, CMBG; Case T-291/13, Eleftheriou and Papachristofi; Case T-292/13, Evangelou; Case T-293/13, Theophilou; Case T-294/13, Fialtor. In the separate Mallis line of case, applicants in the same situation alternatively pursued the annulment of the 25 March 2013 Euro Group statement. Applications were dismissed by both the General Court and the Court of Justice. These rulings are not examined in this note. For further details, see ECJ 20 September 2016, Cases C-105/15 to 109/15 P, Mallis et al. v European Commission and ECB. Finally, it has been noted that other actions for damages related to the restructuring of the Cypriot banking sector are still pending before the General Court. See Case T-161/15, Brinkmann (Steel Trading) et al. v European Commission and ECB; Case T-149/14, Anastasiou v European Commission and ECB; Case T-150/14, Pavlides v European Commission and ECB; Case T-161/15, Vassiliou v European Commission and ECB.

13 Supra n. 12, paras. 56-60.

14 Supra n. 12, paras. 42-47.

15 Unlawful conduct, a harm incurred and a causal link between the conduct and the harm alleged. See Lenaerts K. et al., EU Procedural Law (Oxford University Press 2014) p. 508-544 ; Gutman K., ‘The Evolution of the Action for Damages against the European Union and its Place in the System of Judicial Protection’, 48 CMLR (2011), p. 695 .

16 Supra n. 12, para. 54.

17 This reading, it could be argued, gives too much weight to the strict chronology of events, and fails to understand the political background against which they unfolded.

18 Supra n. 11.

19 The plaintiffs argued that their damage found its root in the European Stability Mechanism-Cyprus Memorandum of Understanding which in their view, could be attributed to the Commission and the European Central Bank , because of their active part in its negotiation and conclusion.

20 Supra n. 11, paras. 49-59.

21 A question the General Court had left aside.

22 Supra n. 11, para. 69.

23 Supra n. 11, para. 85.

24 Supra n. 11, para. 70.

25 Supra n. 11, para. 86.

26 Supra n. 1, paras. 178-181.

27 AG Wahl speaks of a duty ‘to deploy its best endeavours’ to prevent conflicts between the substance of a Memorandum of Understanding and EU law and, for the Charter, of a duty ‘to promote’ its application (supra n. 11, paras. 70 and 85).

28 ECJ 20 September 2016, Case C-8/15 to C-10/15, Ledra Advertising et al. v European Commission and ECB.

29 Supra n. 28, paras. 52-54.

30 Supra n. 28, para. 55.

31 Supra n. 28, para. 59.

32 For the Court, this clearly involves the Charter too, which binds EU institutions in whatever capacity they act. See supra n. 28, para. 67.

33 Supra n. 28, paras. 56-58.

34 Supra n. 1, para. 162.

35 The Court’s reliance on Art. 17 TEU, and its clear focus on the European Commission, may seem to suggest that its core holding is limited to that institution only. Such ‘singling out’, however unfortunate it may be, solely echoes the prominent role played by the Commission under the European Stability Mechanism framework (as compared to the more limited tasks entrusted to the European Central Bank), and has in my view no bearing on the scope of the Court’s holdings, which apply indistinctly to all EU institutions, including the Central Bank. In this regard, see supra n. 32.

36 Supra n. 1, para. 164.

37 Supra n. 28, para. 71.

38 Supra n. 28, para. 74.

39 And not a mere side exercise as in the General Court’s approach.

40 A task the General Court clearly avoided by focusing on the causation issue.

41 Opinion of Advocate General Kokott in Case C-370/12, 26 October 2012, Pringle v Ireland, para. 176. For a similar view, see Peers S., ‘Towards a New Form of EU Law?: The Use of EU Institutions outside the EU Legal Framework’, 9 EuConst (2013) p. 37 at p. 51-53; Craig P., ‘Pringle and Use of EU Institutions outside the EU Legal Framework: Foundations, Procedure and Substance’, 9 EuConst (2013) p. 263 at p. 281-282.

42 This note focuses on the European Stability Mechanism context, but it goes without saying that Ledra’s (horizontal) significance is much wider and encompasses all other settings where EU institutions act outside or at the margin of the formal EU framework.

43 As a side note, the decision of the Court on the merits of the case is not, however, beyond criticism. One may deplore the fact that the systemic requirement in the stability rationale (the financial stability of the Euro area as a whole) was ultimately overlooked. Moreover, the Court’s proportionality analysis appears far too succinct, if not deeply elusive. The restrained approach favoured by the Court, and its deference to political choices made three years earlier in the middle of a financial crisis, did not, in my view, exempt the Court from exposing the reasoning that brought it to its conclusions. As a point of comparison, see the substantial proportionality assessment carried out by the Strasbourg Court in a similar case: ECtHR 21 July 2016, Case Nos. 63066/14, 64297/14, 66106/14, Mamatas et al. v Greece, para. 106-120.

44 See text to n. 55, infra, for the case law on measures related to the Portuguese and Romanian bailouts, and the Court’s refusal to recognise a link between these measures and EU law. The orders of the General Court in the Ledra series of cases, and AG Wahl’s Opinion, are also representative of such a tendency.

45 Regulation (EU) No. 472/2013 of the European Parliament and of the Council of 21 May 2013 on the strengthening of economic and budgetary surveillance of Member States in the Euro area experiencing or threatened with serious difficulties with respect to their financial stability, [2013] OJ L 140/1. See Ioannidis M., ‘EU Financial Assistance Conditionality after “Two Pack”’, 74 ZaöRV (2014) p. 61 .

46 For further details, see text to n. 51, infra.

47 See Hinarejos A., ‘Bail-outs, Borrowed Institutions and Judicial Review: Ledra Advertising’, EULawAnalysis, 25 September 2016, <eulawanalysis.blogspot.be/2016/09/bailouts-borrowed-institutions-and.html>, visited 23 March 2017.

48 ECJ 4 July 2000, Case C-352/98, Bergaderm and Goupil v European Commission, paras. 41-42.

49 For further details, see Lenaerts et al., supra n. 15, p. 512-528.

50 Damage actions are used in Ledra as a gap-filling device. Experience has, however, shown the practical limits of private enforcement of EU law through Union or State liability (the conditions of which are now fully aligned since Bergaderm). The aftermath of Köbler (ECJ 30 September 2003, Case C-224/01, Köbler v Austria) is quite telling in that regard. See further Lock T., ‘Is Private Enforcement of EU Law through State Liability a Myth? An Assessment 20 Years after Francovich ’, 49 CMLR (2012) p. 1675 .

51 In this regard, see Peers , supra n. 41, p. 53 ; Kilpatrick C., ‘Are the Bailouts Immune to EU Social Challenge Because They are not EU Law?’, 10 EuConst (2014) p. 393 at p. 404-405.

52 Council Implementing Decision No. 2013/463 of 13 September 2013 on approving the macroeconomic adjustment programme for Cyprus and repealing Decision 2013/236/EU, [2013] OJ L 250/40.

53 Of course, the issue of standing under Art. 263 TFEU remains. As the case law of the Court of Justice suggests, non-privileged applicants (such as trade unions, civil society organisations or affected individuals) will struggle to meet the procedural requirements of an annulment action. The role of institutional actors and, most notably, the European Parliament, may prove crucial in that regard. See Kilpatrick , supra n. 51, p. 415-417 ; Fromont L., ‘L’application problématique de la Charte des droits fondamentaux aux mesures d’austérité: vers une immunité juridictionnelle’, 4 Journal européen des droits de l’homme (2016) p. 469 at p. 484-488.

54 Opinion of Advocate General Wathelet, Case C-105/15 to C-109/15, 21 April 2016, Mallis et al., paras. 85-98. See also Lenaerts K., ‘EMU and the EU’s Constitutional Framework’, 39 European Law Review (2014) p. 753 at p. 759.

55 See ECJ 14 December 2011, Case C-434/11, Corpul National al Politistilor v MAI; ECJ 10 May 2012, Case C-134/12, MAI et al. v Corpul National al Politistilor; ECJ 15 November 2012, Case C-369/12, Corpul National al Politistilor v MAI; ECJ 14 December 2011, Case C-462/11, Cozman v Teatrul Municipal Targoviste; ECJ 7 March 2013, Case C-128/12, Sindicato dos Bancarios do Norte et al. v BPN; ECJ 26 June 2014, Case C-264/12, Sindicato Nacional dos Profissionais de Seguros e Afins v Fidelitate Mundial; ECJ 21 October 2014, Case C-665/13, Sindicato Nacional dos Profissionais de Seguros e Afins v Via Directa. See also the Florescu case (C-258/14), currently pending before the Court.

56 See Peers , supra n. 41, p. 53 ; Barnard C., ‘The Charter in Time of Crisis: a Case Study of Dismissal’, in N. Countouris, M. Freedland (eds.), Resocializing Europe in a Time of Crisis (Cambridge University Press 2013) p. 250 at p. 267-277; Kilpatrick , supra n. 51, p. 399-406 .

57 See, for example, ECJ 7 May 2013, Case C-617/10, Aklagaren v Akerberg Fransson.

58 See supra n. 35.

59 For an extended analysis, see De Schutter O. and Dermine P., ‘The Two Constitutions of Europe: Integrating Social Rights in the New Economic Architecture of the Union’, European Journal of Human Rights ( forthcoming).

60 One could mention, for example, the launch of the ‘European Pillar of Social Rights’ initiative by the European Commission in March 2016.

* MA (College of Europe), LLM (NYU), PhD Candidate in EU Law, Maastricht University. I am grateful to Professor Monica Claes and Professor Elise Muir for their comments on an earlier draft. Any remaining errors are my own.

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European Constitutional Law Review
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