85

In the context of the second plea, the applicants rely on a breach of the principle of equal treatment of private creditors within the meaning of, in particular, Articles 20 and 21 of the Charter of Fundamental Rights of the European Union, as the ECB and the national central banks ensured, by implementing the exchange agreement of 15 February 2012, that the Greek bonds held in their respective folios would avoid the restructuring of Greek public debt in application of the CACs and would be immune to a reduction of their value. In taking the course of action described in paragraph 71 above, without taking the financial situation of private investors and savers, including the applicants, into account, the ECB breached that principle. The principle of equal treatment for all creditors or savers is also established at international level as a customary principle and should therefore be classified as a general principle of EU law or as a direct and special manifestation of the general principle of non-discrimination under Article 10 TFEU and Articles 20 and 21 of the Charter of Fundamental Rights. The clause known as ‘par condicio creditorum’ or ‘pari passu’, which assumes that creditors are treated equally in the payout, irrespective of their rank, therefore also applies to the ECB. Thus, in its press release of 6 September 2012 on the launch of outright monetary transactions (‘OMTs’), the ECB accepted ‘the same (pari passu) treatment as private or other creditors with respect to bonds issued by euro area countries and purchased by the Eurosystem through [OMTs], in accordance with the terms of such bonds’. Accordingly, the ECB’s acquisition of the Greek bonds in the context of the buy-back scheme established by Decision 2010/281 did not confer any special treatment on it and it was required to assume a credit risk equal to that borne by any other private or institutional investor. The applicants, in their capacity as holders of Greek bonds, were, like the ECB and the national central banks, private-law creditors of the Hellenic Republic and the damage which they sustained was likely to give rise to the same systemic effects on the European economy. Owing to the previous exchange of bonds in the ECB’s and the national central banks’ portfolios for new bonds, those banks were able to avoid the Greek State’s ‘targeted and concealed [payment] default’, with the effect that the other bonds which were not able to benefit from such an exchange were downgraded and had to face the Greek State’s ‘residual ability to pay’. The ECB and the national central banks thus reserved a status of ‘preferential creditor’ to themselves, to the detriment of the private sector, on the pretext of their monetary policy task. Furthermore, by Decision 2012/153, the ECB unlawfully made the eligibility of the Greek bonds subject to the grant to the national central banks of a buy-back scheme for low-rated bonds in Eurosystem credit transactions. The applicants deny that that unequal treatment is objectively justified by public interests or by the provisions of the Treaties, as Article 127(1) TFEU, Article 3(3) and (4) TEU and Article 13 TEU make no provision for a derogation of that type. In any event, the ECB did not explain how the exchange agreement of 15 February 2012 and the buy-back scheme reserved to the national central banks come within its discretion in monetary policy matters, contributed to price stability in the euro area and were proportionate and necessary.