Ledra Advertising Ltd and Others v European Commission and European Central Bank (ECB).
Date: 2016-09-20
1


By their appeals, Ledra Advertising Ltd, in Case C‑8/15 P, Andreas Eleftheriou, Eleni Eleftheriou and Lilia Papachristofi, in Case C‑9/15 P, and Christos Theophilou and Eleni Theophilou, in Case C‑10/15 P, ask the Court to set aside, respectively, the orders of the General Court of the European Union of 10 November 2014, Ledra Advertising v Commission and ECB (T‑289/13, EU:T:2014:981), of 10 November 2014, Eleftheriou and Papachristofi v Commission and ECB (T‑291/13, not published, EU:T:2014:978), and of 10 November 2014, Theophilou v Commission and ECB (T‑293/13, not published, EU:T:2014:979) (collectively, ‘the orders under appeal’), by which the General Court declared in part inadmissible and in part unfounded their actions seeking, first, annulment of paragraphs 1.23 to 1.27 of the Memorandum of Understanding on Specific Economic Policy Conditionality concluded between the Republic of Cyprus and the European Stability Mechanism (ESM) on 26 April 2013 (‘the Memorandum of Understanding of 26 April 2013’) and, secondly, compensation for the damage pleaded by the appellants resulting from the inclusion of those paragraphs in the Memorandum of Understanding and an infringement of the European Commission’s supervisory obligation.
34


In that regard, it must be borne in mind that, under Article 256 TFEU and the first paragraph of Article 58 of the Statute of the Court of Justice of the European Union, an appeal is limited to points of law and must be based on the grounds of lack of competence of the General Court, of a breach of procedure before it which adversely affects the interests of the appellant, or of infringement of EU law by the General Court (see, inter alia, judgment of 4 September 2014, Spain v Commission, C‑192/13 P, EU:C:2014:2156, paragraph 42 and the case-law cited).
35


Furthermore, it follows from Article 256 TFEU and the first paragraph of Article 58 of the Statute of the Court of Justice and also from Articles 168(1)(d) and 169(2) of the Rules of Procedure of the Court of Justice that an appeal must indicate precisely the contested elements of the judgment which the appellant seeks to have set aside and also the legal arguments specifically advanced in support of the appeal (see, inter alia, judgments of 4 July 2000, Bergaderm and Goupil v Commission, C‑352/98 P, EU:C:2000:361, paragraph 34, and of 4 September 2014, Spain v Commission, C‑192/13 P, EU:C:2014:2156, paragraph 43).
37


Thus, where an appeal merely repeats or reproduces verbatim the pleas in law and arguments submitted to the General Court, including those based on facts expressly rejected by that Court, it fails to satisfy the requirement to state reasons under those provisions. Such an appeal amounts in reality to no more than a request for re-examination of the application submitted to the General Court, a matter which falls outside the jurisdiction of the Court of Justice (see judgment of 4 September 2014, Spain v Commission, C‑192/13 P, EU:C:2014:2156, paragraph 44 and the case-law cited).
38


However, provided that an appellant challenges the interpretation or application of EU law by the General Court, the points of law examined at first instance may be discussed again in the course of an appeal. If an appellant could not thus base his appeal on pleas in law and arguments already relied on before the General Court, an appeal would be deprived of part of its purpose (see judgment of 4 September 2014, Spain v Commission, C‑192/13 P, EU:C:2014:2156, paragraph 45 and the case-law cited).
53


As the Court pointed out in paragraph 161 of the judgment of 27 November 2012, Pringle (C‑370/12, EU:C:2012:756), the duties conferred on the Commission and the ECB within the ESM Treaty, important as they are, do not entail any power to make decisions of their own. Furthermore, the activities pursued by those two institutions within the ESM Treaty commit the ESM alone.
55


However, whilst such a finding is liable to have an effect in relation to the conditions governing the admissibility of an action for annulment that may be brought on the basis of Article 263 TFEU, it cannot prevent unlawful conduct linked, as the case may be, to the adoption of a memorandum of understanding on behalf of the ESM from being raised against the Commission and the ECB in an action for compensation under Article 268 TFEU and the second and third paragraphs of Article 340 TFEU.
56


In this connection, it should be pointed out that the tasks conferred on the Commission and the ECB within the ESM Treaty do not alter the essential character of the powers conferred on those institutions by the EU and FEU Treaties (judgment of 27 November 2012, Pringle, C‑370/12, EU:C:2012:756, paragraph 162).
57


As regards the Commission in particular, it is stated in Article 17(1) TEU that the Commission ‘shall promote the general interest of the Union’ and ‘shall oversee the application of Union law’ (judgment of 27 November 2012, Pringle, C‑370/12, EU:C:2012:756, paragraph 163).
58


Furthermore, the tasks allocated to the Commission by the ESM Treaty oblige it, as provided in Article 13(3) and (4) thereof, to ensure that the memoranda of understanding concluded by the ESM are consistent with EU law (see, to that effect, judgment of 27 November 2012, Pringle, C‑370/12, EU:C:2012:756, paragraph 164).
64


In accordance with settled case-law, the European Union may incur non-contractual liability under the second paragraph of Article 340 TFEU only if a number of conditions are fulfilled, namely the unlawfulness of the conduct alleged against the EU institution, the fact of damage and the existence of a causal link between the conduct of the institution and the damage complained of (judgment of 14 October 2014, Giordano v Commission, C‑611/12 P, EU:C:2014:2282, paragraph 35 and the case-law cited).
65


As regards the first condition, the Court has already stated on many occasions that a sufficiently serious breach of a rule of law intended to confer rights on individuals must be established (see, inter alia, judgments of 4 July 2000, Bergaderm and Goupil v Commission, C‑352/98 P, EU:C:2000:361, paragraph 42, and of 10 July 2014, Nikolaou v Court of Auditors, C‑220/13 P, EU:C:2014:2057, paragraph 53).
66


In the present instance, the rule of law compliance with which the appellants criticise the Commission for not having ensured in the context of the adoption of the Memorandum of Understanding of 26 April 2013 is Article 17(1) of the Charter. That provision, which states that everyone has the right to own his or her lawfully acquired possessions, is a rule of law intended to confer rights on individuals.
67


Furthermore, whilst the Member States do not implement EU law in the context of the ESM Treaty, so that the Charter is not addressed to them in that context (see, to that effect, judgment of 27 November 2012, Pringle, C‑370/12, EU:C:2012:756, paragraphs 178 to 181), on the other hand the Charter is addressed to the EU institutions, including, as the Advocate General has noted in point 85 of his Opinion, when they act outside the EU legal framework. Moreover, in the context of the adoption of a memorandum of understanding such as that of 26 April 2013, the Commission is bound, under both Article 17(1) TEU, which confers upon it the general task of overseeing the application of EU law, and Article 13(3) and (4) of the ESM Treaty, which requires it to ensure that the memoranda of understanding concluded by the ESM are consistent with EU law (see, to that effect, judgment of 27 November 2012, Pringle, C‑370/12, EU:C:2012:756, paragraphs 163 and 164), to ensure that such a memorandum of understanding is consistent with the fundamental rights guaranteed by the Charter.
69


It must be remembered that the right to property guaranteed by that provision of the Charter is not absolute and that its exercise may be subject to restrictions justified by objectives of general interest pursued by the European Union (see judgments of 16 November 2011, Bank Melli Iran v Council, C‑548/09 P, EU:C:2011:735, paragraph 113, and of 12 May 2016, Bank of Industry and Mine v Council, C‑358/15 P, EU:C:2016:338, paragraph 55).
70


Consequently, as is apparent from Article 52(1) of the Charter, restrictions may be imposed on the exercise of the right to property, provided that the restrictions genuinely meet objectives of general interest 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, judgments of 16 November 2011, Bank Melli Iran v Council, C‑548/09 P, EU:C:2011:735, paragraph 114, and of 12 May 2016, Bank of Industry and Mine v Council, C‑358/15 P, EU:C:2016:338, paragraph 56).
71


As is apparent from Article 12 of the ESM Treaty, the adoption of a memorandum of understanding such as that resulting from the negotiations between the Cypriot authorities and, in particular, the Commission corresponds to an objective of general interest pursued by the European Union, namely the objective of ensuring the stability of the banking system of the euro area as a whole.
72


Indeed, financial services play a central role in the economy of the European Union. Banks and credit institutions are an essential source of funding for businesses that are active in the various markets. In addition, the banks are often interconnected and certain of their number operate internationally. That is why the failure of one or more banks is liable to spread rapidly to other banks, either in the Member State concerned or in other Member States. That is liable, in turn, to produce negative spill-over effects in other sectors of the economy (judgment of 19 July 2016, Kotnik and Others, C‑526/14, EU:C:2016:570, paragraph 50).
74


In view of the objective of ensuring the stability of the banking system in the euro area, and having regard to the imminent risk of financial losses to which depositors with the two banks concerned would have been exposed if the latter had failed, such measures do not constitute a disproportionate and intolerable interference impairing the very substance of the appellants’ right to property. Consequently, they cannot be regarded as unjustified restrictions on that right (see, by analogy, judgment of 10 July 2003, Booker Aquaculture and Hydro Seafood, C‑20/00 and C‑64/00, EU:C:2003:397, paragraphs 79 to 86).