Case T-124/17: Action brought on 22 February 2017 — Enosi Syntaxiouchon Tameiou Asfaliseon Michanikon kai Ergolipton v ECB
Date: 2017-02-22
Institutions: General Court
Subjects: Greece, central bank, equal treatment, euro area, expert's report ordered by a court, liability, loss, ownership, public debt








C_2017151EN.01003701.xml










15.5.2017   


EN


Official Journal of the European Union


C 151/37





Action brought on 22 February 2017 — Enosi Syntaxiouchon Tameiou Asfaliseon Michanikon kai Ergolipton v ECB
(Case T-124/17)
(2017/C 151/48)
Language of the case: Greek

Parties


Applicant: Enosi Syntaxiouchon Tameiou Asfaliseon Michanikon kai Ergolipton (Athens, Greece) (represented by: P. Miliarakis, lawyer)

Defendant: European Central Bank

Form of order sought

The applicant claims that the General Court should:






—


hold this action to be admissible;·










—


order the European Central Bank (ECB) to pay to the account of the Greek Engineers’ and Public Contractors’ Pension Fund (TSMEDE) sector/subsector for the current insurance provider ΕFΚΑ the sum of: (a) EUR 1 606 539 086,28 with respect to the nominal value of the share capital of the former ΕΤΑΑ and (b) with respect to the sum of EUR 84 285 086,36 which related to bonds, with legal interest from the lodging of this action until payment (in the alternative, to order the ECB to pay the amount of compensation indicated by the requested expert’s report);










—


to instruct, in accordance with the provisions of the Rules of Procedure of the General Court, an expert’s report on the determination of the exact amount of the loss sustained by the members of the applicant fund and in any event of the TSMEDE sector/subsector for the former ΕΤΑΑ and now ΕFΚΑ;










—


order the defendant to produce/disclose the agreement of 15 February 2012 with the Hellenic Republic,·and










—


order the ECB to pay the costs.





Pleas in law and main arguments

In support of the action the applicant relies on the following pleas:






1.


This action maintains that the non-contractual liability of the ECB is engaged to a social security institution, that is a financial institution, where there was no Private Sector Involvement (PSI), but Official Sector Involvement (OSI).










2.


This action highlights the relationship of the Bank of Greece, as a member of the European System of Central Banks (ΕSCB), with the ECB and consequently the causal link with respect to OSI implementation by the Bank of Greece and the responsibility, by omission, of the ECB to control the application of OSI by a member of the ΕSCB. This action also highlights the responsibility of the ECB with respect to the operation of the Collective Action Clauses — CACs to the detriment of social security institutions.










3.


This action maintains that the non-contractual liability of the ECB is engaged, with respect to the fact that it omitted to repeal, in good time and in any event as from 21 July 2011 (in the alternative, as from 26 October 2011), the Decision of 6 May 2010 (ECB 2010/3 -2010/268/ΕU), whereby it particularly guaranteed ‘irrespective of any external credit assessment’ (with reference to the assessments of Standard & Poor’s, Fitch and Moody’s rating agencies) the validity of Greek bonds. With a tragic delay the ECB only on 27 February 2012 repealed the Decision of 6 May 2010, by means of Decision (ECB) 2012/133/ΕU. Consequently, for a long period of time the ECB supported, by its omission, legitimate expectations in Greek bonds.










4.


This action highlights the fact that by means of the invocation of OSI, the ECB excluded itself from the restructuring of Greek sovereign debt, as also by its interposition the European Central Banks were excluded. That exclusion is however contrary to the principle of equal treatment.










5.


This action maintains that it is not possible for a Member State of the European Union and more particularly the Eurozone, to undertake ex proprio motu within its domestic legal order (Parliament — Council of Ministers –Ministerial Decisions) a unilateral restructuring of its sovereign debt, without the authorisation or tacit consent of the ECB; there would otherwise be financial chaos. In the present case there existed the tacit consent of the ECB, and consequently its non-contractual liability is engaged with respect to losses amounting to 53.5 %, a level that strikes at the heart of the right to property. It is manifest that there is a causal link between the responsibility, by omission, of the ECB for the losses at issue, the culpability of its agencies and its non-contractual liability.