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Language of document : ECLI:EU:T:2018:486

Case T‑680/13

Dr. K. Chrysostomides & Co. LLC and Others

Council of the European Union and Others

(Non-contractual liability — Economic and monetary policy — Stability support programme for Cyprus — Decision of the Governing Council of the ECB relating to emergency liquidity assistance following a request from the Central Bank of Cyprus — Euro Group Statements of 25 March, 12 April, 13 May and 13 September 2013 concerning Cyprus — Decision 2013/236/EU — Memorandum of Understanding of 26 April 2013 on Specific Economic Policy Conditionality concluded between the Republic of Cyprus and the European Stability Mechanism — Jurisdiction of the General Court — Admissibility — Formal requirements — Exhaustion of national rights of action — Sufficiently serious breach of a rule of law intended to confer rights on individuals — Right to property — Legitimate expectations — Equal treatment)

Summary — Judgment of the General Court (Fourth Chamber, Extended Composition), 13 July 2018

1. Actions for damages — Subject-matter — Application for compensation for damage attributable to the Union — Jurisdiction of the EU judicature — Application for compensation for damage caused by the national authorities — Jurisdiction of the national courts

(Art. 13(1) TEU; Arts 268 TFEU and 340, second and third para., TFEU)

2. Actions for damages — Subject-matter — Application for compensation for damage caused by the Commission or the European Central Bank in the performance of tasks entrusted by the Treaty establishing the European Stability Mechanism — Admissibility

(Arts 268 TFEU and 340, second para., TFEU)

3. Actions for damages — Autonomous form of action — Difference compared to an action for annulment — Capacity to be a defendant — Criteria for determination

(Arts 263 TFEU, 268 TFEU and 340, second para., TFEU)

4. Actions for damages — Subject-matter — Application for compensation for damage caused by the Euro Group in the exercise of the powers conferred under EU law — Admissibility

(Art. 3 TEU; Arts 119(2) TFEU, 137 TFEU and 268 TFEU; Protocol No 14 annexed to the EU and FEU Treaties, Art. 1)

5. Economic and monetary policy — Monetary policy — Coordination of monetary policies — Informal meeting of Member States using the euro within the Euro Group — Subject-matter — Composition

(Art. 137 TFEU; Protocol No 14 annexed to the EU and FEU Treaties, Art. 1; Treaty establishing the European Stability Mechanism, Art. 5(1))

6. Economic and monetary policy — Economic policy — Coordination of economic policies — European stability mechanism — Conferral of powers with regard to the grant of financial assistance — Subject to international public law — Imputability to the Commission and the European Central Bank of acts committed by them in accordance with duties conferred by the Treaty establishing the European Stability Mechanism — Not included

(Treaty establishing the European Stability Mechanism, Art. 13(4))

7. Economic and monetary policy — Monetary policy — Implementation — Specific measures to restore financial stability and sustainable growth in Cyprus — Integration of the activities of a national bank within the national central bank and conversion of deposits into shares in that latter — No discretion of the Member State concerned

(Art. 136(1) TFEU; Council Decision 2013/236, Art. 2(6)(b) and (d))

8. Economic and monetary policy — Economic policy — Coordination of economic policies — European stability mechanism — Assignment of new tasks to the Commission and to the European Central Bank — Lack of influence over the assignments conferred by the EU Treaty and the TFEU to those institutions — Possibility to claim the unlawfulness of the performance of those tasks in the context of an action for compensation

(Art. 17(1) TEU; Art. 282(2) TFEU; Treaty establishing the European Stability Mechanism, Art. 13(3), (4) and (7))

9. EU law — Principles — Protection of legitimate expectations — Conditions — Specific assurances given by the authorities — Concept — Guarantees provided by the Euro Group — Included

10. Judicial proceedings — Application initiating proceedings — Formal requirements — Identification of the subject-matter of the dispute — Brief summary of the pleas in law on which the application is based — Application for compensation for damage allegedly caused by an EU institution — Factors enabling identification of the conduct of which the institution is accused, the causal link and the reality and certainty of the damage caused

(Statute of the Court of the Justice, Art. 21, first para.; Rules of Procedure of the General Court (1991), Art. 44(1)(c))

11. Actions for damages — Autonomous form of action — Exhaustion of national rights of action — Exception — Possibility for the Court of the Union to identify the nature and quantum of the damage alleged

(Arts 268 TFEU and 340, second and third para., TFEU; Rules of Procedure of the General Court (1991), Art. 44(1)(c))

12. Non-contractual liability — Conditions — Unlawfulness — Damage — Causal link — One of the conditions not satisfied — Claim for compensation dismissed in its entirety

(Art. 340, second para. TFEU)

13. Economic and monetary policy — Economic policy — Coordination of economic policies — European stability mechanism — Conclusion of a Memorandum of Understanding providing for the conversion into shares of uninsured deposits in a national bank and the temporary freezing of other uninsured deposits in that bank — Compatibility with the depositors’ right to property — Assessment of the existence of less restrictive measures — Taking into consideration the urgency of the situation

(Charter of Fundamental Rights of the European Union, Arts 17(1) and 52(1); Treaty establishing the European Stability Mechanism, Art. 12)

14. Fundamental rights — Charter of Fundamental Rights of the European Union — Limitation of the exercise of rights and freedoms conferred by the Charter — Conditions — Requirement for the limitation to be included in a law — Scope

(Charter of Fundamental Rights of the European Union, Art. 52(1) and (3))

15. Non-contractual liability — Conditions — Legislative measure involving technical choices and complex assessments — Sufficiently serious breach of a higher rule of law conferring rights on individuals — Requirement of a clear and serious breach of the limits of the wide discretion of the EU legislature

(Art. 340 TFEU)

16. Economic and monetary policy — Economic policy — Coordination of economic policies — European stability mechanism — Conclusion of a Memorandum of Understanding providing for the conversion into shares of uninsured deposits in a national bank and the temporary freezing of other uninsured deposits in that bank — Compatibility with the depositors’ right to property — Existence of comparable situations — Different treatment of other Member States of the Euro-zone benefiting from financial assistance — Infringement — Conditions

(Charter of Fundamental Rights of the European Union, Art. 17(1); Treaty establishing the European Stability Mechanism, Art. 12)

17. Actions for annulment — Pleas in law — Infringement of essential procedural requirements — Lack of or inadequate statement of reasons — To be considered of the Court's own motion

(Arts 263 TFEU and 296 TFEU)

18. Acts of the institutions — Statement of reasons — Obligation — Scope — Assessment of the duty to state reasons by reference to the circumstances of the case — Need to specify all the relevant factual and legal elements — Absence

(Art. 296 TFEU)

19. European Central Bank — Competences of the European System of Central Banks — Determination of the conditions for recapitalisation or the resolution of financial institutions — Not included

(Art. 282(1) TFEU; Protocol No 4 annexed to the EU and FEU Treaties, Art. 14.4)

20. Acts of the institutions — Legal nature — To be assessed on the basis of the content of the measure — Declaration of intent not published in the L or C series of the Official Journal of the European Union — Lack of legal force

21. EU law — Principles — Protection of legitimate expectations — Conditions — Grant of financial aid to a Member State in difficulty subject to the adoption by the latter of certain measures to restore financial stability — Failure to impose such measures at the time of the grant financial aid to other Member States — Infringement — Absence

(Council Decision 2013/236)

22. EU law — Principles — Equal treatment — Concept — Burden of proof

(Charter of Fundamental Rights of the European Union, Arts 20 and 21)

23. Economic and monetary policy — Monetary policy — Implementation — Specific measures to restore financial stability and sustainable growth in Cyprus — Dissolution of a bank in difficulty and recapitalisation of another bank in difficulty by way of the conversion of uninsured deposits of the former bank into equity– Adoption by the latter bank of the debt of the former bank resulting from the financial assistance — Different treatment of uninsured depositors in the two banks in relation to creditors with claims originating in the financial assistance — Breach of the principle of equal treatment — Absence

(Council Decision 2013/236; Memorandum of Understanding of 26 April 2013)

24. EU law — Principles — Equal treatment — Discrimination on grounds of nationality — Prohibition — Not applicable in a situation purely internal to a Member State — Limits — Contribution by an EU institution to the continuation or implementation of such treatment — Unlawful

(Art. 18 TFEU)

25. EU law — Principles — Equal treatment — Infringement — Concept

26. Economic and monetary policy — Monetary policy — Implementation — Specific measures to restore financial stability and sustainable growth in Cyprus — Dissolution of a bank in difficulty and recapitalisation of another bank in difficulty by way of the conversion of uninsured deposits of the former bank into equity — Different treatment of uninsured depositors in the two banks in relation to depositors in the Greek branches of those banks — Breach of the principle of equal treatment — Absence

(Council Decision 2013/236; Memorandum of Understanding of 26 April 2013)

27. Economic and monetary policy — Monetary policy — Implementation — Specific measures to restore financial stability and sustainable growth in Cyprus — Dissolution of a bank in difficulty and recapitalisation of another bank in difficulty by way of the conversion of uninsured deposits of the former bank into equity — Transfer of deposits to the latter bank subject to a ceiling of EUR 100 000 per depositor — Breach of the principle of equal treatment — Absence

(European Parliament and Council Directive 94/19, as amended by Directives 2005/1 and 2009/14, Recital 16 and Art. 7(1)a; Council Decision 2013/236; Memorandum of Understanding of 26 April 2013)

28. Judicial proceedings — Burden of proof, etc. — Burden of proof

(Rules of Procedure of the General Court (2015), Art. 85)

29. Economic and monetary policy — Monetary policy — Implementation — Specific measures to restore financial stability and sustainable growth in Cyprus — Dissolution of a bank in difficulty and recapitalisation of another bank in difficulty by way of the conversion of uninsured deposits of the former bank into equity — Different treatment of uninsured depositors of the two banks in relation to companies in the cooperative banking sector which have not been bailed in — Breach of the principle of equal treatment — Absence

(Council Decision 2013/236)

1. Under Article 268 and the second and third paragraphs of Article 340 TFEU, in the case of non-contractual liability, the General Court has jurisdiction only in disputes relating to compensation for damage caused by the institutions of the Union or by their servants in the performance of their duties. The term ‘institution’ used in the second paragraph of Article 340 TFEU must not be understood as referring only to the institutions of the Union listed in Article 13(1) TEU. That term also covers, with regard to the system of non-contractual liability established by the TFEU, all other EU bodies established by the Treaty and intended to contribute to achieving the EU’s objectives. Consequently, measures taken by those bodies in the exercise of the powers assigned to them by EU law are attributable to the EU, according to the general principles common to the Member States referred to in the second paragraph of Article 340 TFEU.

It follows that the Court cannot hear a claim for compensation that is directed against the EU and based on the unlawfulness of an act or conduct the author of which is not an institution of the EU or one of its servants in the performance of its duties. Therefore, the damage caused by the national authorities in the exercise of their own powers can only give rise to liability on the part of the latter and the national courts retain sole jurisdiction to order compensation for such damage. By contrast, it is not excluded that the Court may hear an action for compensation for damage caused by an act or conduct, by which a national authority ensures the implementation of EU legislation. In such a case, it is necessary to determine, in order to establish the jurisdiction of the Court, whether the unlawful conduct alleged in support of the application for compensation is in fact the responsibility of an EU institution, body, office or agency or of one of its servants in the performance of its duties and cannot be regarded, in reality, as attributable to the national authority at issue. Such is the case where the national authorities have no discretion in the implementation of EU legislation vitiated by such unlawfulness.

(see paras 81-84)

2. See the text of the decision.

(see para. 85)

3. The jurisdiction exercised by the Courts of the European Union in disputes relating to legality under Article 263 TFEU differs both with respect to its purpose and the pleas which may be raised from the jurisdiction they exercise in disputes relating to non-contractual liability under Articles 268 and 340 TFEU. The action for damages relating to the European Union’s non-contractual liability for actions or omissions on the part of its institutions was established as an independent form of judicial remedy, having its own particular place in the system of means of redress and subject to conditions for its use formulated in the light of its specific purpose. Although actions for annulment provided for in Article 263 TFEU seek the abolition of a particular measure, actions for damages based on Article 340 TFEU seek compensation for damage caused by an institution.

Therefore, irrespective of its status as a challengeable act amenable to an action for annulment under Article 263 TFEU, any act of an institution of the European Union or one of its servants in the performance of their duties is, in principle, capable of forming the subject matter of an action for damages under Article 268 TFEU. Likewise, non-decision-making conduct capable of giving rise to the non-contractual liability of the European Union can form the basis for an action for damages, although it cannot be the subject of an action for annulment. It follows that, in the system of legal remedies established by the FEU Treaty, actions for non-contractual liability pursue a compensatory purpose, intended in particular to guarantee effective judicial protection to an individual also against acts and conduct of the institutions of the European Union or one of their servants in the performance of their duties which cannot be the subject of an action for annulment under Article 263 TFEU. Therefore, in the light of the different and complementary purposes of those two types of action, it cannot be considered that the content of the concept of ‘institution’ for the purposes of the second paragraph of Article 340 TFEU is necessarily restricted to institutions, bodies, offices or agencies of the Union referred to in the first paragraph of Article 263 TFEU.

By contrast, the identification of EU entities which can be qualified as an ‘institution’ for the purposes of the second paragraph of Article 340 TFEU must be undertaken according to the criteria relevant to that provision, which are different from those governing the identification of bodies, offices or agencies referred to in the first paragraph of Article 263 TFEU. For the purposes of Article 263 TFEU, the relevant criterion relates to the power of the defendant entity to adopt acts intended to produce legal effects vis-à-vis third parties. In contrast, for the purposes of the second paragraph of Article 340 TFEU, it is necessary to determine whether the EU entity responsible for the act or conduct complained of was established by the Treaties and is intended to contribute to the achievement of the Union’s objectives.

(see paras 109-112)

4. The acts and conduct of the Euro Group in the exercise of its powers under EU law are therefore attributable to the European Union. Article 1 of Protocol No 14 on the Euro Group, annexed to the TFEU, provides that the Euro Group is to meet to discuss questions related to the specific responsibilities the ministers composing it share with regard to the single currency. Those questions concern, under Article 119(2) TFEU, the activities of the European Union for the purposes of the objectives set out in Article 3 TEU, which include the establishment of an economic and monetary union whose currency is the Euro. It follows that the Euro Group is a body of the Union formally established by the Treaties and intended to contribute to achieving the objectives of the Union.

(see para. 113)

5. See the text of the decision.

(see paras 123-125)

6. By creating the European Stability Mechanism, the Member States whose currency is the Euro decided to grant that international organisation, which has legal personality, specific and exclusive powers in relation to the grant of financial assistance to those Member States in difficulty. The exercise of those powers is subject to the rules of public international law specific to an organisation for intergovernmental cooperation, EU law being applicable only in so far as the Treaty establishing the European Stability Mechanism specifically provides for that application. The Member States whose currency is the Euro therefore clearly stated that the grant of the financial assistance facility lies outside of both the sphere of activities of the European Union and its regulatory framework.

The Member States whose currency is the Euro, admittedly, called on EU institutions, namely the Commission and the European Central Bank, to perform certain tasks on behalf of the European Stability Mechanism. However, the duties conferred on those institutions in the context of the Treaty establishing the European Stability Mechanism do not entail any power to make decisions of their own and the activities pursued by those institutions within the context of that treaty commit the European Stability Mechanism alone. Therefore, as regards a Memorandum of Understanding concluded between the European Stability Mechanism and a Member State whose currency is the Euro, the requirements set out in that memorandum are attributable only to the European Stability Mechanism and not to the Commission.

(see paras 128, 129, 167)

7. See the text of the decision.

(see paras 178-181, 186, 191)

8. The tasks conferred on the Commission and on the European Central Bank by the Treaty establishing the European Stability Mechanism do not alter the essential character of the powers conferred on those institutions by the EU Treaty and the FEU Treaty. As regards, in particular, the Commission, Article 13(3) and (4) of the Treaty establishing the European Stability Mechanism imposes on it the obligation to ensure compliance with EU law of the Memorandums of Understanding concluded by the European Stability Mechanism, so that it retains, in the context of the Treaty establishing the European Stability Mechanism, its role as Guardian of the Treaties, as follows from Article 17(1) TEU. It is therefore required to refrain from signing a Memorandum of Understanding whose consistency with EU law it doubts.

Consequently, an applicant is entitled to rely as against the Commission on unlawful conduct related to the adoption of a Memorandum of Understanding on behalf of the European Stability Mechanism in the context of an action for damages. In that regard, the Commission’s unlawful conduct connected with the adoption of a Memorandum of Understanding is the only unlawful conduct of an EU institution in the context of the Treaty establishing the European Stability Mechanism which is capable of incurring non-contractual liability on the part of the Union. The unlawful conduct connected with the monitoring of the application of the measures provided for in a Memorandum of Understanding by the European Central Bank and by the Commission can be used against them in the context of an action for damages. The negotiation and signing of a Memorandum of Understanding by the Commission, and the monitoring of the implementation of the measures provided for therein by the European Central Bank and the Commission under Article 13(7) of the Treaty establishing the European Stability Mechanism are thus capable of incurring the liability of the Union.

(see paras 201-204)

9. The principle of protection of legitimate expectations is a superior rule of EU law for the protection of individuals, the infringement of which by an institution of the Union may incur the liability of the Union. The right to rely on that principle presupposes that precise, unconditional and consistent assurances, originating from authorised, reliable sources, have been given to the person concerned by the competent authorities of the European Union. That right applies to any individual whom an institution, body or agency of the European Union, by giving that person precise assurances, has led to entertain well-founded expectations.

Consequently, the communication by the Euro Group of precise assurances relating to the measures provided for in a Memorandum of Understanding concluded between the European Stability Mechanism and a Member State whose currency is the Euro is capable of incurring the liability of the Union. However, as regards assurances relating to the grant of a financial assistance facility to such a Member State, since the grant of such a facility falls within the competence of the European Stability Mechanism, and not that of the Euro Group, those assurances do not issue from a competent authority.

(see paras 205, 206, 404, 427)

10. See the text of the decision.

(see paras 215, 216)

11. An action for damages under Article 268 TFEU and the second and third paragraphs of Article 340 TFEU must be appraised with regard to the entire system for the judicial protection of the individual and its admissibility may thus, 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 cases of inadmissibility caused by non-exhaustion of domestic remedies are limited to the situation in which the failure to exhaust domestic remedies prevented the Courts of the European Union from identifying the nature and quantum of the damage pleaded before it, with the result that the requirements of Article 44(1)(c) of the Rules of Procedure are not complied with. Where the EU judicature is in a position to identify the character and the amount of the alleged damage, it cannot be considered that the action is inadmissible on the sole ground that the applicant did not exhaust the domestic remedies, and that even without it being necessary to determine whether the acts and conduct at issue could even be subject to an action before the national courts.

At the most it could be considered, in those circumstances, that the bringing, by one or more applicants, of an action before a national court seeking compensation for the same damage as the present action is capable of having an impact on the examination of the merits of that action. In that regard, where, in the first place, a person has brought two actions before the EU judicature seeking compensation for the same damage, one against a national authority, before a national court, and the other against an EU institution or body, and, in the second place, there is a likelihood that, because of the different assessments of that damage by the two different courts, the person in question may be insufficiently or excessively compensated, the EU judicature must, before deciding on the amount of the damage, wait until the national court has given final judgment on the action brought before it. In such a case, the EU judicature must wait until the national court has given judgment before ruling on the existence and the quantum of any damage. On the other hand, it may, even before the national court has given its ruling, determine whether the conduct alleged against the defendant institution is capable of giving rise to non-contractual liability on the part of the European Union.

(see paras 238-241)

12. See the text of the decision.

(see para. 245)

13. A restriction of the right to property must not be excessive. First, the restriction must meet the general interest objective pursued and be necessary and proportionate to that end. Secondly, the ‘essential content’, that is to say the substance, of the right to property must not be impaired.

As regards a Memorandum of Understanding concluded by the European Stability Mechanism with a Member State in financial difficulty, it is apparent from Article 12 of the Treaty establishing the European Stability Mechanism that the adoption of such a memorandum corresponds to an objective of public interest pursued by the European Union, namely that of ensuring the stability of the banking system of the euro area as a whole. Financial services play a central role in the economy of the European Union. In so far as banks, an essential source of funding for businesses, are often interconnected, 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 and, as a result, to produce negative spill-over effects in other sectors of the economy.

In that regard, in the case of a Memorandum of Understanding providing inter alia for the recapitalisation of a bank by way of a conversion of uninsured deposits into equity, it is necessary, in order to assess the existence of measures which are less restrictive of the right to property, to take into account the need, for the national authorities, to act rapidly during the adoption of the measures provided for by the Memorandum of Understanding. Far from constituting, as the applicants, in essence, imply, an indication of an infringement of their right to good administration, the speed with which those measures are adopted testifies to the urgency of the situation of the Member State concerned. It concerns the prevention of an imminent risk of collapse of the banks concerned in order to protect the stability of the national financial system and, therefore, to prevent contagion to other Member States of the euro area. Developing a differential haircut system as recommended by the applicants in such a context would require the national authorities to undertake a particularly sensitive and uncertain approach so as to ensure that the percentages and thresholds chosen allow the recapitalised bank to meet the core tier one capital target referred to in the Memorandum of Understanding, thereby exposing the recapitalisation of that bank to significant risks.

Moreover, as regards the requirement to offer the person concerned a reasonable opportunity of putting his case to the competent authorities, that requirement cannot be interpreted as meaning that the interested person must, in all circumstances, be able to make his views known to the competent authorities prior to the adoption of measures infringing his right to property. That is, in particular, the case where the measures at issue do not constitute a penalty and are implemented in a context of particular urgency. In that latter regard, the establishment of a prior consultation procedure, in the context of which the thousands of depositors and shareholders of the banks concerned could have usefully made their views known to the central bank of the Member State concerned prior to the adoption of the national provisions applying the measures provided for in the Memorandum of Understanding, would inevitably delay the application of measures seeking to prevent such a collapse. The achievement of the objective consisting in protecting the stability of the national financial system and, therefore, preventing contagion to other Member States of the euro area would have been exposed to serious risks.

(see paras 255, 282, 290, 310)

14. See the text of the decision.

(see para 272)

15. Where the institutions of the EU are required, in a complex and changing environment, to make technical choices and to undertake forecasts and complex assessments, those institutions must, nevertheless, be granted a wide margin of discretion with respect to the nature and the extent of the measures supported by them or with respect to which they require maintenance or continuous implementation. In such a situation, the condition relating to the unlawfulness of the conduct complained of requires it to be established that the institution concerned manifestly and gravely disregarded the limits of its discretion.

(see para. 291)

16. The measures to which the grant of financial assistance by the European Stability Mechanism (or by other international organisations, bodies and institutions of the EU or States) may be subject in order to resolve the financial difficulties encountered by a State facing the need to recapitalise its banking system are likely to vary significantly from case to case depending on the experience acquired and on a set of specific circumstances. Those circumstances can include in particular the economic situation of the recipient State, the size of the assistance in relation to the whole of its economy, the prospects of the banks concerned becoming economically viable again and the reasons which led to the difficulties encountered by them, including, where appropriate, the excessive size of the banking sector of the recipient State in relation to its national economy, the development of the international economic environment or an increased likelihood of future European Stability Mechanism interventions (or interventions of other international organisations, bodies and institutions of the EU or States) in support of other States in difficulty which can require a preventive limitation of amounts dedicated to each intervention.

Consequently, as regards the compatibility of a Memorandum of Understanding concluded between the European Stability Mechanism and a State benefiting from financial assistance with the right to property, a comparison of the size (absolute and relative) of the financial assistance benefiting, on the one hand, that benefiting State and, on the other hand, other States benefiting from financial assistance cannot validly be carried out, without showing that the respective financial sectors of the other States whose currency is the Euro and which benefited from financial assistance were characterised by an excessive size in relation to the size of the respective national economies of those States. It must also be demonstrated that the experience acquired and differences relating to the economic situation of the Member States whose currency is the Euro concerned or to the prospects of the banks concerned becoming economically viable again, the development of the international economic environment or an increased likelihood of future European Stability Mechanism interventions in support of other States in difficulty which can require a preventive limitation of amounts dedicated to each intervention could not justify a difference in treatment between the beneficiary State and the other States benefiting from financial assistance.

(see paras 311-313)

17. See the text of the decision.

(see para. 390)

18. See the text of the decision.

(see paras 392-395)

19. The national central banks carry out two types of function, namely, firstly, those which are provided for by the Statute of the European System of Central Banks and of the European Central Bank, and, secondly, those which are not. The latter cannot be attributed to the European System of Central Banks, or to the Eurosystem. Article 14.4 of the Statute of the European System of Central Banks and of the European Central Bank provides that the national central banks may perform functions other than those specified in that statute, unless the European Central Bank Governing Council finds, by a majority of two thirds of the votes cast, that they interfere with the objectives and tasks of the European System of Central Banks. Conversely. The functions that the national central banks perform on their own responsibility and liability are not to be regarded as being part of the functions of the European System of Central Banks.

In that regard, the Statute of the European System of Central Banks and of the European Central Bank does not mention, amongst the objectives of the European Central Bank or the European System of Central Banks, the determination of the conditions for recapitalisation or the resolution of financial institutions. They therefore concern functions which are performed on the responsibility and liability of national central banks. In those circumstances, a prudent and circumspect reader could not reasonably consider that an approach adopted by a national central bank concerning the determination of the conditions for recapitalisation or the resolution of financial institutions was attributable to the Eurosystem and bound the latter. Neither Article 282(1) TFEU, nor the Eurosystem mission statement call that conclusion into question. Consequently, it cannot reasonably be deduced from Article 282(1) TFEU that the Eurosystem would guarantee the maintenance of the value of deposits in the banks concerned in the event of the recapitalisation or resolution of those banks.

(see paras 415-417, 419)

20. The mission statement of the European Central Bank and the Eurosystem amounts to a simple declaration of intent devoid of any legal value and which was, in that regard, not published either in the L-series of the Official Journal of the European Union, which is intended for the publication of legally binding measures, or in the C-series of that journal, which publishes information, recommendations and opinions concerning the European Union. That statement is, by its very nature, aspirational and is not intended to impose obligations on its authors, or to exhaustively identify all of the objectives and competences of the members of the Eurosystem.

(see para. 420)

21. The mere fact that, during the early phases of the international financial crisis, the grant of financial assistance was not subject to the adoption of measures comparable to the measures imposed on a beneficiary State cannot, in itself, be regarded as a precise, unconditional and consistent assurance capable of engendering a legitimate expectation on the part of the shareholders and depositors of the banks concerned that the grant of financial assistance to that State would not be subject to those measures.

In that regard, the measures to which the grant of financial assistance by the European Stability Mechanism (or by other international organisations, institutions and bodies of the European Union or States) in order to resolve financial difficulties affecting a State confronting a need to recapitalise its banking system may be made subject are likely to differ fundamentally from case to case in the light of experience and of all of the specific circumstances. In those circumstances, in the absence of clear and express engagement by the competent authorities, it is not possible to consider that the shareholders and depositors of the banks covered by the measures at issue could legitimately expect that the grant of financial assistance facility would be subject to conditions identical or even similar to those to which the grant of financial assistance to other Member States whose currency is the Euro were subject.

(see paras 432, 433)

22. See the text of the decision.

(see paras 440-442)

23. First, a private operator, who, like the uninsured depositors in the national banks concerned by the measures provided for in a Memorandum of Understanding concluded by the European Stability Mechanism and the shareholders of another national bank having been recapitalised by way of those uninsured deposits, acts solely in its private pecuniary interest, and, secondly, a Eurosystem central bank whose decisions were exclusively driven by public interest objectives, are in a different situation for the purposes of the application of the principle of equal treatment. The mere fact that depositors and a Eurosystem central bank whose decisions are driven by such objectives hold a single debt security vis-à-vis the same bank does not allow that conclusion to be invalidated, so that the principle of equal treatment cannot require that those two categories of persons be treated identically.

(see para. 449)

24. EU law does not preclude, in situations which have no factor linking them with any of the situations governed by that law and which are confined in all relevant respects within a single Member State, that nationals of that Member State are treated by that State less favourably than nationals of another Member State. However, that solution is not applicable to acts or omissions as a result of which one or more EU institutions contribute to such treatment or require its maintenance or continued implementation.

Therefore, regarding a Memorandum of Understanding concluded by the European Stability Mechanism which provides in particular for the recapitalisation of a national bank by way of uninsured deposits of another national bank, even assuming that the claims of discrimination between the depositors of banks of the Member State concerned and the depositors in the branches of those banks could be considered to refer to a situation which is confined in all relevant respects within a single Member State, it cannot validly be concluded that any discrimination suffered by the shareholders and depositors of the banks referred to should be regarded as reverse discrimination, which is not prohibited by EU law.

(see paras 461-463)

25. See the text of the decision.

(see para. 465)

26. A difference in treatment is justified if it is, first, based on an objective and reasonable criterion, that is, if the difference relates to a legally permitted aim pursued by the legislation in question and, secondly, it is proportionate to the aim pursued by the treatment concerned.

As regards the question whether the difference in treatment by a Memorandum of Understanding concluded by the European Stability Mechanism between the applicant depositors in the national banks concerned covered by the measures in that memorandum and the depositors in the branches of those banks in another Member State is based on an objective and reasonable criterion, the objective of preventing a general destabilisation of the financial system of the latter Member State due to contagion by the banking system of the former Member State must be considered to be objective and reasonable. As regards the proportionality of that difference in treatment, it should be noted that it is appropriate for attaining the legitimate objectives pursued and does not exceed what is necessary to achieve those objectives.

Consequently, that fact that the financial assistance facility, first, was subject by the Memorandum of Understanding to the adoption, by the national authorities of the latter Member State, of a measure ordering a haircut of deposits in the banks concerned established in that Member State, and, secondly, was not subject to a similar condition concerning deposit liabilities in the former Member State, is objectively justified and therefore does not constitute an infringement of the principle of equal treatment.

(see paras 469-473)

27. As regards a measure provided for in a Memorandum of Understanding by the European Stability Mechanism which provides that the debts of another bank vis-à-vis each of its depositors are transferred to a national bank in difficulty up to EUR 100 000, amounts over EUR 100 000 remaining with the latter bank, pending the latter’s liquidation, it must be noted that that measure applies without distinction to all of the depositors of the second bank, so that there is no difference in treatment between those depositors on the basis of the amount of the deposits which they entrusted to that bank.

The mere fact that the transfer to the former bank of deposits entrusted to the latter bank is subject to a uniform ceiling of EUR 100 000 per depositor and is, accordingly, likely to have varying impacts on those depositors on the basis of the amount of their deposits cannot undermine that conclusion. Any differences of that nature result from the application of the guarantee cap of EUR 100 000 provided for by Article 7(1a) of Directive 94/19 on deposit guarantee schemes, as amended by Directives 2005/1 and 2009/14. It is a criterion which is both objective and adapted to the needs of the European banking system.

As regards measures for the conversion of shares of the former bank, provided for in the Memorandum of Understanding according to which the haircut on the uninsured deposits of that bank applies only to the depositors thereof whose deposits exceed EUR 100 000, there results therefrom a difference in treatment between the depositors of that bank on the basis of whether the amount of deposits they entrusted to the latter exceeds EUR 100 000. However, that difference in treatment in no way constitutes unequal treatment which is prohibited by EU law, in so far as the depositors whose deposits in the banks concerned exceed EUR 100 000 are in a legally distinct situation from that of depositors whose deposits in the banks concerned do not exceed that amount. In accordance with Article 7(1a) of Directive 94/19, as amended by Directives 2005/1 and 2009/14, the deposits of the latter were, in the event of deposits being unavailable, entirely covered by the national deposit guarantee scheme, whereas those of the former were covered only up to an amount of EUR 100 000.

(see paras 482-485)

28. It is in principle for the person alleging facts in support of a claim to adduce proof of such facts.

(see para. 501)

29. See the text of the decision.

(see paras 504-508)