Appeals – Economic and monetary policy – Stability support programme for the Republic of Cyprus – Restructuring of Cypriot debt – Decision of the Governing Council of the European Central Bank (ECB) relating to emergency liquidity assistance following a request from the Central Bank of the Republic of Cyprus – Euro Group statements of 25 March, 12 April, 13 May and 13 September 2013 – Decision 2013/236/EU – Memorandum of understanding on specific economic policy conditionality concluded between the Republic of Cyprus and the European Stability Mechanism (ESM) – Right to property – Principle of the protection of legitimate expectations – Equal treatment – Non-contractual liability of the European Union.
Date: 2020-12-16
58


It should be recalled that, pursuant to the second paragraph of Article 252 TFEU, it is the duty of the Advocate General, acting with complete impartiality and independence, to make, in open court, reasoned submissions on cases which, in accordance with the Statute of the Court of Justice of the European Union, require the Advocate General’s involvement. The Court is not bound either by the Advocate General’s Opinion or by the reasoning on which it is based (judgment of 25 July 2018, Société des produits Nestlé and Others v Mondelez UK Holdings & Services, C‑84/17 P, C‑85/17 P and C‑95/17 P, EU:C:2018:596, paragraph 31).
59


Furthermore, the Statute of the Court of Justice of the European Union and the Rules of Procedure of the Court of Justice make no provision for interested parties to submit observations in response to the Advocate General’s Opinion (judgment of 21 December 2016, Commission v Aer Lingus and Ryanair Designated Activity, C‑164/15 P and C‑165/15 P, EU:C:2016:990, paragraph 31 and the case-law cited).
60


Consequently, the fact that a party disagrees with the Opinion of the Advocate General, irrespective of the questions that he examines in his Opinion, cannot in itself constitute grounds justifying the reopening of the oral part of the procedure (judgment of 28 February 2018, mobile.de v EUIPO, C‑418/16 P, EU:C:2018:128, paragraph 30).
66


In that regard, the Council submits, first, that the General Court qualified the conclusion reached by the Court of Justice in paragraph 61 of its judgment of 20 September 2016, Mallis and Others v Commission and ECB (C‑105/15 P to C‑109/15 P, EU:C:2016:702), that the Euro Group cannot be equated with a configuration of the Council or be classified as a ‘body, office or agency of the European Union’ within the meaning of Article 263 TFEU.
71


In that regard, the Council states, in the first place, citing the judgment of 20 September 2016, Ledra Advertising and Others v Commission and ECB (C‑8/15 P to C‑10/15 P, EU:C:2016:701, paragraph 55), that the Commission may be held accountable in respect of the legality of the acts of the ESM. In the second place, the Council observes that, as the General Court acknowledged in paragraph 238 of the first judgment under appeal and paragraph 237 of the second judgment under appeal, the admissibility of an action to establish non-contractual liability of the European Union may, in some cases, be subject to the prior exhaustion of national remedies that are available for obtaining annulment of a decision of a national authority, provided that those remedies under domestic law effectively ensure protection for the individuals concerned in that they are capable of resulting in compensation for the damage alleged. The Council submits, in the third place, that the Court may, in accordance with Article 7 of 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 (OJ 2013 L 140, p. 1), review acts of the Council which precede and prefigure the content of the ESM conditionality. Finally, in the fourth place, the Council refers to point 66 of the Opinion of Advocate General Wathelet in Joined Cases Mallis and Others v Commission and ECB (C‑105/15 P to C‑109/15 P, EU:C:2016:294), from which it is apparent that the lack of a direct remedy against the Euro Group would be at odds with the principle of effective judicial protection only if the Euro Group had in the Treaties been given the power to adopt acts producing binding legal effects with respect to third parties. However, it was not given that power, the Euro Group being, according to the Council, a forum for discussion, not a decision-making body.
74


The applicants at first instance in Cases C‑597/18 P and C‑598/18 P contest the merits of the single ground of appeal put forward by the Council. They submit, first, that the Court’s statement in paragraph 61 of the judgment of 20 September 2016, Mallis and Others v Commission and ECB (C‑105/15 P to C‑109/15 P, EU:C:2016:702), that the Euro Group cannot be classified as a ‘body, office or agency of the European Union’ within the meaning of Article 263 TFEU, is not relevant as that judgment related to the admissibility of an action for annulment against the Euro Group, which is a remedy separate from that of an action, provided for in the second paragraph of Article 340 TFEU, to establish non-contractual liability of the European Union.
79


The European Union may incur non-contractual liability under that provision 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 20 September 2016, Ledra Advertising and Others v Commission and ECB, C‑8/15 P to C‑10/15 P, EU:C:2016:701, paragraph 64 and the case-law cited).
80


The term ‘institution’ within the meaning of that provision encompasses not only the EU institutions listed in Article 13(1) TEU but also all the EU bodies, offices and agencies that have been established by or under the Treaties and are intended to contribute to the achievement of the European Union’s objectives (see, to that effect, judgment of 2 December 1992, SGEEM and Etroy v EIB, C‑370/89, EU:C:1992:482, paragraphs 13 to 16).
87


Article 137 TFEU and Protocol No 14 admittedly formalised the existence of the Euro Group and the participation of the Commission and the ECB at its meetings. However, they did not alter its intergovernmental nature in the slightest. It should, in particular, be made clear that, as the Court has already held, the Euro Group cannot be equated with a configuration of the Council (judgment of 20 September 2016, Mallis and Others v Commission and ECB, C‑105/15 P to C‑109/15 P, EU:C:2016:702, paragraph 61).
96


In that regard, as is apparent from Article 17(1) TEU, the Commission ‘shall promote the general interest of the Union’ and ‘shall oversee the application of Union law’ (judgments of 27 November 2012, Pringle, C‑370/12, EU:C:2012:756, paragraph 163, and of 20 September 2016, Ledra Advertising and Others v Commission and ECB, C‑8/15 P to C‑10/15 P, EU:C:2016:701, paragraph 57). It therefore retains, in the context of its participation in the activities of the Euro Group, its role of guardian of the Treaties. It follows that any failure on its part to check that the political agreements concluded within the Euro Group are in conformity with EU law is liable to result in non-contractual liability of the European Union being invoked under the second paragraph of Article 340 TFEU.
106


According to settled case-law, Article 268 TFEU in conjunction with the second paragraph of Article 340 TFEU gives jurisdiction to the EU judicature only to award compensation for damage caused by the EU institutions or by their servants in the performance of their duties or, in other words, for damage capable of giving rise to non-contractual liability on the part of the European Union. Damage caused by national authorities, on the other hand, can give rise to liability only on the part of those national authorities and the national courts retain sole jurisdiction to order compensation for such damage (judgment of 7 July 1987, L’Étoile commerciale and CNTA v Commission, 89/86 and 91/86, EU:C:1987:337, paragraph 17 and the case-law cited).
127


It follows from Article 256 TFEU, the first paragraph of Article 58 of the Statute of the Court of Justice of the European Union and Article 168(1)(d) and Article 169 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. According to the Court’s settled case-law, that requirement is not satisfied by an appeal which, without even including an argument specifically identifying the error of law allegedly vitiating the judgment under appeal, merely reproduces the pleas in law and arguments previously submitted to the General Court. Such an appeal amounts in reality to no more than a request for re-examination of the application submitted to the General Court, which the Court of Justice does not have jurisdiction to undertake (see, inter alia, judgment of 4 July 2000, Bergaderm and Goupil v Commission, C‑352/98 P, EU:C:2000:361, paragraph 35, and order of 27 May 2020, Paix et justice pour les juifs séfarades en Israël v Commission and Council of Europe, C‑798/19 P, not published, EU:C:2020:389, paragraphs 10 and 11 and the case-law cited).
128


Furthermore, it is settled case-law that the Court of Justice has no jurisdiction to establish the facts or, save in exceptional cases, to examine the evidence which the General Court accepted in support of those facts (see, to that effect, judgments of 8 May 2003, T. Port v Commission, C‑122/01 P, EU:C:2003:259, paragraph 27, and of 25 October 2007, Komninou and Others v Commission, C‑167/06 P, not published, EU:C:2007:633, paragraph 40). The appraisal of the evidence put before the General Court does not constitute, save where the clear sense of the evidence has been distorted, a point of law which is subject as such to review by the Court of Justice (see, inter alia, judgment of 28 May 1998, New Holland Ford v Commission, C‑8/95 P, EU:C:1998:257, paragraph 26).
131


Third, in so far as the appellants’ arguments relate to the negotiation and conclusion of the MoU of 26 April 2013 by the Commission, the ‘Commission’s findings that the measures adopted by the Cypriot authorities complied with conditionality’ and the approval, by the Commission and the ECB, of the payment of various tranches of the FAF to the Republic of Cyprus, it should be noted that, as the General Court correctly held in paragraphs 167 to 169 of the first judgment under appeal and paragraphs 166 to 168 of the second judgment under appeal, the duties conferred on the Commission and the ECB in the context of the ESM Treaty do not entail any power to make decisions of their own, meaning that the activities pursued by those two institutions under the ESM Treaty commit the ESM alone (judgment of 20 September 2016, Ledra Advertising and Others v Commission and ECB, C‑8/15 P to C‑10/15 P, EU:C:2016:701, paragraph 53 and the case-law cited).
142


Finally, as to the alleged contradiction in the grounds of the judgments under appeal that is pleaded by the appellants, it should be recalled that the question whether the grounds of a judgment of the General Court are contradictory is a question of law which is amenable, as such, to judicial review on appeal (judgment of 16 July 2009, Der Grüne Punkt – Duales System Deutschland v Commission, C‑385/07 P, EU:C:2009:456, paragraph 71 and the case-law cited).
148


In the first part of this ground of appeal, concerning the takeover by BoC of the insured deposits of Laïki and the retention of uninsured deposits with Laïki, the conversion of 37.5% of the uninsured deposits in BoC into shares and the temporary freezing of another part of those uninsured deposits, the appellants observe, first of all, that, in its judgment of 20 September 2016, Ledra Advertising and Others v Commission and ECB (C‑8/15 P to C‑10/15 P, EU:C:2016:701), the Court was concerned only with paragraphs 1.23 to 1.27 of the MoU of 26 April 2013.
154


First of all, it should be pointed out, as the General Court did in paragraph 254 of the first judgment under appeal and paragraph 253 of the second judgment under appeal, that the right to property enshrined in Article 17 of the Charter is not an absolute right (judgment of 20 September 2016, Ledra Advertising and Others v Commission and ECB, C‑8/15 P to C‑10/15 P, EU:C:2016:701, paragraph 69).
155


In accordance with Article 52(1) of the Charter, any limitation on the exercise of the rights and freedoms recognised by it must, however, be provided for by law and respect their essence 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 (judgment of 31 January 2019, Islamic Republic of Iran Shipping Lines and Others v Council, C‑225/17 P, EU:C:2019:82, paragraph 101).
160


In the second place, as regards the complaint alleging infringement of the principle of proportionality, it should be recalled that this principle requires that the means employed by a provision of EU law be appropriate for attaining the legitimate objectives pursued by the legislation at issue and do not go beyond what is necessary to achieve them (judgment of 31 January 2019, Islamic Republic of Iran Shipping Lines and Others v Council, C‑225/17 P, EU:C:2019:82, paragraph 102 and the case-law cited).
171


In accordance with the Court of Justice’s settled case-law, arguments directed against grounds included in a decision of the General Court purely for the sake of completeness cannot lead to the decision being set aside and are therefore ineffective (judgment of 12 February 2015, Commission v IPK International, C‑336/13 P, EU:C:2015:83, paragraph 33 and the case-law cited).
178


In accordance with the Court’s settled case-law, the right to rely on the principle of the protection of legitimate expectations extends to any person whom an institution of the European Union has caused, by giving him or her precise assurances, to entertain justified expectations. By contrast, a person may not plead breach of that principle unless he or she has been given those assurances (see, to that effect, judgments of 13 September 2017, Pappalardo and Others v Commission, C‑350/16 P, EU:C:2017:672, paragraph 39, and of 31 January 2019, Islamic Republic of Iran Shipping Lines and Others v Council, C‑225/17 P, EU:C:2019:82, paragraph 57).
191


The general 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 (judgment of 6 June 2019, P. M. and Others, C‑264/18, EU:C:2019:472, paragraph 28 and the case-law cited).
192


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, inter alia, judgment of 16 December 2008, Arcelor Atlantique et Lorraine and Others, C‑127/07, EU:C:2008:728, paragraph 25).
198


In the second place, so far as concerns the complaint alleging discrimination between the appellants, on the one hand, and depositors with the Greek branches, on the other, the appellants submit that such discrimination is contrary to freedom of establishment. In that regard, it need only be stated that they raise this complaint for the first time before the Court of Justice, with the result that it must be rejected as inadmissible (see, to that effect, judgments of 13 December 2017, Telefónica v Commission, C‑487/16 P, not published, EU:C:2017:961, paragraph 84, and of 26 September 2018, Philips and Philips France v Commission, C‑98/17 P, not published, EU:C:2018:774, paragraph 42).