ORDER OF THE GENERAL COURT (First Chamber)
27 November 2012 (*)
(Actions for annulment — Decisions addressed to a Member State with a view to remedying a situation of excessive deficit — No direct concern — Inadmissibility)
In Case T‑541/10,
Anotati Dioikisi Enoseon Dimosion Ypallilon (ADEDY), established in Athens (Greece),
Spyridon Papaspyros, residing in Athens,
Ilias Iliopoulos, residing in Athens,
represented by M.-M. Tsipra, lawyer,
applicants,
v
Council of the European Union, represented by T. Middleton, A. De Gregorio Merino and E. Chatziioakeimidou, acting as Agents,
defendant,
supported by
European Commission, represented by B. Smulders, J.-P. Keppenne and M. Konstantinidis, acting as Agents,
intervener,
APPLICATION for annulment, firstly, of Council Decision 2010/320/EU of 10 May 2010 addressed to Greece with a view to reinforcing and deepening fiscal surveillance and giving notice to Greece to take measures for the deficit reduction judged necessary to remedy the situation of excessive deficit (OJ 2010 L 145, p. 6; corrigendum OJ 2011 L 209, p. 63) and, secondly, of Council Decision 2010/486/EU of 7 September 2010 amending Decision 2010/320/EU (OJ 2010 L 241, p. 12),
THE GENERAL COURT (First Chamber),
composed of J. Azizi (Rapporteur), President, S. Frimodt Nielsen and M. Kancheva, Judges,
Registrar: E. Coulon,
makes the following
Order
Legal context
EU Treaty
1 Under Article 3(4) TEU:
‘The Union shall establish an economic and monetary union whose currency is the euro.’
FEU Treaty
2 Under Article 119 TFEU:
‘1. For the purposes set out in Article 3 of the Treaty on European Union, the activities of the Member States and the Union shall include, as provided in the Treaties, the adoption of an economic policy which is based on the close coordination of Member States’ economic policies, on the internal market and on the definition of common objectives, and conducted in accordance with the principle of an open market economy with free competition.
2. Concurrently with the foregoing, and as provided in the Treaties and in accordance with the procedures set out therein, these activities shall include a single currency, the euro, and the definition and conduct of a single monetary policy and exchange-rate policy the primary objective of both of which shall be to maintain price stability and, without prejudice to this objective, to support the general economic policies in the Union, in accordance with the principle of an open market economy with free competition.
3. These activities of the Member States and the Union shall entail compliance with the following guiding principles: stable prices, sound public finances and monetary conditions and a sustainable balance of payments.’
3 Article 126 TFEU establishes the excessive deficit procedure, the objective of which is to encourage and, if necessary, to require the Member State concerned to reduce any public deficit found. The relevant parts of that article read as follows:
‘1. Member States shall avoid excessive government deficits.
2. The Commission shall monitor the development of the budgetary situation and of the stock of government debt in the Member States with a view to identifying gross errors. In particular it shall examine compliance with budgetary discipline on the basis of the following two criteria:
(a) whether the ratio of the planned or actual government deficit to gross domestic product exceeds a reference value, unless:
– either the ratio has declined substantially and continuously and reached a level that comes close to the reference value,
– or, alternatively, the excess over the reference value is only exceptional and temporary and the ratio remains close to the reference value;
(b) whether the ratio of government debt to gross domestic product exceeds a reference value, unless the ratio is sufficiently diminishing and approaching the reference value at a satisfactory pace.
The reference values are specified in the Protocol on the excessive deficit procedure annexed to the Treaties.
…
6. The Council shall, on a proposal from the Commission, and having considered any observations which the Member State concerned may wish to make, decide after an overall assessment whether an excessive deficit exists.
7. Where the Council decides, in accordance with paragraph 6, that an excessive deficit exists, it shall adopt, without undue delay, on a recommendation from the Commission, recommendations addressed to the Member State concerned with a view to bringing that situation to an end within a given period. Subject to the provisions of paragraph 8, these recommendations shall not be made public.
8. Where it establishes that there has been no effective action in response to its recommendations within the period laid down, the Council may make its recommendations public.
9. If a Member State persists in failing to put into practice the recommendations of the Council, the Council may decide to give notice to the Member State to take, within a specified time limit, measures for the deficit reduction which is judged necessary by the Council in order to remedy the situation.
In such a case, the Council may request the Member State concerned to submit reports in accordance with a specific timetable in order to examine the adjustment efforts of that Member State.
…
11. As long as a Member State fails to comply with a decision taken in accordance with paragraph 9, the Council may decide to apply or, as the case may be, intensify one or more of the following measures:
– to require the Member State concerned to publish additional information, to be specified by the Council, before issuing bonds and securities,
– to invite the European Investment Bank to reconsider its lending policy towards the Member State concerned,
– to require the Member State concerned to make a non-interest-bearing deposit of an appropriate size with the Union until the excessive deficit has, in the view of the Council, been corrected,
– to impose fines of an appropriate size.
The President of the Council shall inform the European Parliament of the decisions taken.
12. The Council shall abrogate some or all of its decisions or recommendations referred to in paragraphs 6 to 9 and 11 to the extent that the excessive deficit in the Member State concerned has, in the view of the Council, been corrected. If the Council has previously made public recommendations, it shall, as soon as the decision under paragraph 8 has been abrogated, make a public statement that an excessive deficit in the Member State concerned no longer exists.
13. When taking the decisions or recommendations referred to in paragraphs 8, 9, 11 and 12, the Council shall act on a recommendation from the Commission.
…’
4 Article 136(1) TFEU provides:
‘1. In order to ensure the proper functioning of economic and monetary union, and in accordance with the relevant provisions of the Treaties, the Council shall … adopt measures specific to those Member States whose currency is the euro:
(a) to strengthen the coordination and surveillance of their budgetary discipline;
(b) to set out economic policy guidelines for them, while ensuring that they are compatible with those adopted for the whole of the Union and are kept under surveillance.’
5 Under Article 1 of Protocol No 12 on the excessive deficit procedure, annexed to the Treaties:
‘The reference values referred to in Article 126(2) of the Treaty on the Functioning of the European Union are:
– 3% for the ratio of the planned or actual government deficit to gross domestic product at market prices;
– 60% for the ratio of government debt to gross domestic product at market prices.’
The stability and growth pact
6 At its meeting in Amsterdam (Netherlands) on 17 June 1997, the European Council established a legislatory framework for coordination of the national economic policies of the Member States participating in the economic and monetary union. That framework took the form of a stability and growth pact based on the objective of sound government finances as a means of strengthening the conditions for price stability and for strong sustainable growth, generating employment (see Council Resolution of 17 June 1997 on the stability and growth pact (OJ 1997 C 236, p. 1)).
7 The stability and growth pact comprises the following three texts: firstly, the Resolution cited in paragraph 6 above, secondly, Council Regulation (EC) No 1466/97 of 7 July 1997 on the strengthening of the surveillance of budgetary positions and the surveillance and coordination of economic policies (OJ 1997 L 209, p. 1) and, thirdly, Council Regulation (EC) No 1467/97 of 7 July 1997 on speeding up and clarifying the implementation of the excessive deficit procedure (OJ 1997 L 209, p. 6).
8 Article 3 of Regulation No 1466/97, as amended by Council Regulation (EC) No 1055/2005 of 27 June 2005 (OJ 2005 L 174, p. 1), lays down the requirement that Member States which have adopted the single currency are to submit to the Council of the European Union and the European Commission information on their economic policies.
9 Article 3(2)(c) of Regulation No 1466/97, as amended by Regulation No 1055/2005, states that the stability programme provides:
‘[A] detailed and quantitative assessment of the budgetary and other economic policy measures being taken and/or proposed to achieve the objectives of the programme, comprising a detailed cost-benefit analysis of major structural reforms which have direct long-term cost-saving effects, including by raising potential growth[.]’
10 Article 3(4) of Regulation No 1467/97, as amended by Council Regulation (EC) No 1056/2005 of 27 June 2005 (OJ 2005 L 174, p. 5), reads as follows:
‘The Council recommendation made in accordance with Article [126(7) TFEU] shall establish a deadline of six months at most for effective action to be taken by the Member State concerned. The Council recommendation shall also establish a deadline for the correction of the excessive deficit, which should be completed in the year following its identification unless there are special circumstances. In the recommendation, the Council shall request that the Member State achieves a minimum annual improvement of at least 0.5% of GDP as a benchmark, in its cyclically adjusted balance net of one-off and temporary measures, in order to ensure the correction of the excessive deficit within the deadline set in the recommendation.’
11 Article 5 of Regulation No 1467/97, as amended by Regulation No 1056/2005, provides:
‘1. Any Council decision to give notice to the participating Member State concerned to take measures for the deficit reduction in accordance with Article [126(9) TFEU] shall be taken within two months of the Council decision establishing that no effective action has been taken in accordance with Article [126(8) TFEU]. In the notice, the Council shall request that the Member State achieves a minimum annual improvement of at least 0.5% of GDP as a benchmark, in its cyclically adjusted balance net of one-off and temporary measures, in order to ensure the correction of the excessive deficit within the deadline set in the notice.
2. If effective action has been taken in compliance with a notice under Article [126(9) TFEU] and unexpected adverse economic events with major unfavourable consequences for government finances occur after the adoption of that notice, the Council may decide, on a recommendation from the Commission, to adopt a revised notice under Article [126(9) TFEU]. The revised notice, taking into account the relevant factors mentioned in Article 2(3) of this Regulation, may notably extend the deadline for the correction of the excessive deficit by one year. The Council shall assess the existence of unexpected adverse economic events with major unfavourable consequences for government finances against the economic forecasts in its notice.’
Background to the dispute
The Greek debt crisis and the intergovernmental mechanism for financial aid to the Hellenic Republic
12 On 21 October 2009, the Hellenic Republic sent Eurostat (Statistical Office of the European Union) statistical data revising its public deficit for 2008 from 5.0% of the gross domestic product (GDP) (the figure provided by the Hellenic Republic in April 2009) to 7.7% of the GDP. At the same time, the Greek authorities revised the ratio of the country’s expected deficit for 2009 from 3.7% of the GDP (figure provided in spring 2009) to 12.5% of the GDP.
13 That revision of the economic data raised doubts on the markets as to the country’s solvency, precipitating its public debt crisis. During the first months of 2010, the conduct of investors on the market gave rise to an increase in the rates of interest on Greek bonds. At the end of April 2010, a credit rating agency downgraded the rating of Greek bonds from BBB- to BB+, a category regarded by the markets as that of high-risk debt.
14 Having regard to the fact that the Greek debt crisis threatened to affect other Member States in the Euro area and endangered the stability of the whole of the Euro area, at the European Council summit of 25 March 2010, the Heads of State or Government of the Euro area agreed to put into place an intergovernmental mechanism to assist the Hellenic Republic, consisting of bilateral loans coordinated with non-concessionary interest rates, that is to say, without any element of subsidy. The disbursement of loans is subject to strict conditions and its activation was to take place following a request from the Hellenic Republic. The aid mechanism also included a substantial level of participation by the International Monetary Fund (IMF).
15 The abovementioned intergovernmental mechanism is based on two instruments: firstly, an intercreditor agreement to which the States supplying the aid are contracting parties and which contains the basic rules on coordination between the lenders for the grant of the loans and, secondly, a loan facility agreement between the Euro area Member States supplying the aid (and a German public financial body, acting under mandate and guarantee of the Federal Republic of Germany), and the Hellenic Republic and the Greek Central Bank.
16 On 23 April 2010, the Hellenic Republic requested that the abovementioned intergovernmental aid mechanism be activated.
17 On 2 May 2010, under the abovementioned aid mechanism, the Euro area Member States agreed to supply the Hellenic Republic with EUR 80 billion as part of a financial package of EUR 110 billion allocated together with the IMF.
18 On 3 May 2010, the representatives of the Hellenic Republic and the Commission — the latter acting on behalf of the Euro area Member States — signed a document entitled ‘Memorandum of Understanding’, describing a three-year programme drawn up by the Greek Ministry of Finance in collaboration with the Commission, the European Central Bank and the IMF, with the objective of improving Greek public finances and re-establishing market confidence as regards the situation of those public finances and the Greek economy in general. The Memorandum of Understanding referred to above constitutes three specific memoranda: a Memorandum of Economic and Financial Policies, a Memorandum of Understanding on Specific Economic Policy Conditionality and a Technical Memorandum of Understanding.
19 On 8 May 2010, the abovementioned intercreditor agreement and loan agreement (see paragraph 15 above) were signed.
Excessive debt procedure with regard to the Hellenic Republic
Procedure preceding adoption of the contested acts
20 On 27 April 2009, the Council decided, in accordance with Article 104(6) EC (now Article 126(6) TFEU), that an excessive deficit existed in Greece and issued recommendations to correct that deficit by 2010 at the latest, in accordance with Article 104(7) EC (now Article 126(7) TFEU) and Article 3(4) of Regulation No 1467/97. The Council also set a deadline of 27 October 2009 for Greece to take effective action.
21 On 30 November 2009, the Council established, in accordance with Article 126(8) TFEU, that Greece had not taken effective action in response to the recommendations of 27 April 2009.
22 On 16 February 2010, on the basis of Article 126(9) TFEU and Article 136 TFEU, the Council adopted Decision 2010/182/EU giving notice to Greece to take measures for the deficit reduction judged necessary in order to remedy the situation of excessive deficit (OJ 2010 L 83, p. 13).
23 Article 1(1) of Decision 2010/182 provides that Greece was to put an end to the present excessive deficit situation as rapidly as possible and, at the latest, in 2012.
24 Article 2 of Decision 2010/182 provides that, in order to put an end to the situation of excessive deficit, Greece was to implement a number of fiscal consolidation measures, including those spelled out in the stability programme submitted by that State (see paragraphs 8 and 9 above).
25 Article 5 of Decision 2010/182 sets 15 May 2010 as the deadline by which the Hellenic Republic was to take effective action to comply with the decision.
Contested acts
– Decision 2010/320/EU
26 On 10 May 2010 the Council adopted Decision 2010/320/EU addressed to Greece with a view to reinforcing and deepening fiscal surveillance and giving notice to Greece to take measures for the deficit reduction judged necessary to remedy the situation of excessive deficit (OJ 2010 L 145, p. 6, amended OJ 2011 L 209, p. 63; ‘the basic act’).
27 The legal bases of the basic act are Article 126(9) TFEU and Article 136 TFEU.
28 In recitals 4 and 5 in the preamble to the basic act, it is explained that unexpected adverse economic events with major unfavourable consequences for government finances occurred in Greece, so that revisions to the content of the initial notice given on 16 February 2010 by Decision 2010/182 and revised recommendations pursuant to Article 126(9) TFEU and Article 136 TFEU were justified.
29 Recital 8 in the preamble to the basic act refers to the intergovernmental mechanism for financial aid granted to the Hellenic Republic in the following terms:
‘The very severe deterioration of the financial situation of the Greek Government has led euro area Member States to decide to provide stability support to Greece, with a view to safeguarding the financial stability of the euro area as a whole, in conjunction with multilateral assistance provided by the International Monetary Fund. Support provided by the euro area Member States will take the form of a pooling of bilateral loans, coordinated by the Commission. The lenders have decided that their support shall be conditional on Greece respecting this Decision. In particular, Greece is expected to carry out the measures specified in this Decision in accordance with the calendar set out herein.’
30 Article 1 of the basic act postpones the deadline for correction of Greece’s excessive deficit to 2014 (instead of 2012, as had been laid down in Decision 2010/182).
31 Article 2 of the basic act provides for the adoption by the Hellenic Republic, in accordance with the calendar set out in that article, a number of fiscal consolidation measures intended drastically to reduce public expenditure and increase State revenue, measures to reinforce budgetary supervision and discipline and structural measures particularly to improve the competitiveness of the Greek economy in general.
32 The measures set out in Article 2 of the basic act concern a multitude of areas, namely, in particular, tax policy, the retirement and pension system, organisation of public administration and the banking system.
33 Article 4(1) of the basic act provides that Greece must submit, on a quarterly basis, a report to the Council and the Commission outlining the policy measures taken to comply with the basic act.
34 Under Article 4(2)(a) and (b) of the basic act, the abovementioned report must include detailed information on, firstly, the concrete measures implemented by the Hellenic Republic by the date of the report in order to comply with the basic act, including their quantified budgetary impact, and, secondly, the concrete measures which the Hellenic Republic plans to implement after the date of the report in order to comply with the basic act, their implementation calendar and an estimation of their budgetary impact.
35 Under Article 4(3) of the basic act, the Commission and the Council are to analyse those reports with a view to assessing the Hellenic Republic’s compliance with that act. In the context of those assessments, the Commission may indicate the measures needed to comply with the adjustment path set by the basic act for the correction of the excessive deficit.
36 Article 5 of the basic act provides that it is to take effect on the day of its notification.
37 Under Article 6 of the basic act, it is addressed to the Hellenic Republic.
– Decision 2010/486/EU
38 On 7 September 2010, the Council adopted Decision 2010/486/EU amending the basic act (OJ 2010 L 241, p. 12; together ‘the contested acts’). The legal bases of Decision 2010/486 are also Article 126(9) TFEU and Article 136 TFEU and it is addressed to the Hellenic Republic.
39 It is apparent from recitals 5 to 8 in the preamble to Decision 2010/486 that, after adoption of the basic act, some of the economic forecasts on the basis of which that act had been adopted have had to be revised. Accordingly, it appeared appropriate to amend the basic act in certain regards while maintaining the time limit laid down in that act for correction of the excessive deficit.
40 Decision 2010/486 repeals some of the measures provided for in the basic act, adds others and amends, makes specific or reworks the text of certain measures provided for therein.
41 By virtue of Article 2 thereof, Decision 2010/486 takes effect on the day of its notification.
Procedure and forms of order sought by the parties
42 The applicants, Anotati Dioikisi Enoseon Dimosion Ypallilon (ADEDY), Mr Spyridon Papaspyros and Mr Ilias Iliopoulos, brought the present action by application lodged at the Registry of the General Court on 22 November 2010.
43 By separate document, lodged at the Registry of the General Court on 3 March 2011, the Council raised a plea of inadmissibility under Article 114 of the Rules of Procedure of the General Court.
44 By document lodged at the Court Registry on 7 March 2011, the Commission applied for leave to intervene in the present proceedings in support of the form of order sought by the Council. That application was granted by order of the President of the First Chamber of the General Court of 27 June 2011.
45 On 29 April 2011, the applicants’ observations on the plea of inadmissibility raised by the Council were lodged at the Court Registry.
46 On 8 September 2011, the Commission lodged a statement in intervention at the Court Registry.
47 On 27 October 2011, the applicants’ observations on the Commission’s statement in intervention were lodged at the Court Registry.
48 In their application, the applicants claim that the Court should:
– declare the present action admissible and well founded;
– annul the contested acts;
– order the Council to pay the costs.
49 The Council contends that the Court should:
– dismiss the action as manifestly inadmissible as regards the contested acts;
– in the alternative, dismiss the action as manifestly inadmissible as regards the basic act;
– order the applicants to pay the costs.
50 The Commission claims that the Court should dismiss the action as manifestly inadmissible.
51 In their observations on the plea of inadmissibility, the applicants claim that the Court should reject the plea of inadmissibility raised by the Council and order the Council to pay the costs.
Law
52 Under Article 114(1) of the Rules of Procedure, if a party so requests, the General Court may make a decision on admissibility without considering the substance. Under Article 114(3) of those rules, unless the General Court otherwise decides, the remainder of the proceedings is to be oral.
53 In the present case, the General Court considers that it has sufficient information from an examination of the documents before it and decides, on the basis of that article, to give a decision on the present action without opening the oral procedure.
54 It is apparent from the file that the first of the applicants, ADEDY, is a Greek trade union confederation with the federations of unions of public sector employees, employees of public legal persons and of local and regional authorities, which are connected with those bodies through working relations under public and private law. In the submission of the applicants, ADEDY includes as members, in short, all civil servants and employees of public legal persons and represents their interests.
55 The second and third applicants are civil servants and president and secretary general of ADEDY respectively. They are bringing the present action both in person and on behalf of ADEDY.
56 In their action, the applicants allege that the contested acts contain a number of provisions affecting the financial interests and working conditions of Greek civil servants.
57 The Council, supported by the Commission, argues that the action is inadmissible. It submits, principally, that the action is inadmissible due to the applicants’ lack of standing to bring the action, within the meaning of the fourth paragraph of Article 263 TFEU, and restricts its arguments to the question of the contested acts being of individual concern to the applicants, while the Commission also examines the admissibility of the action from the point of view of their being of direct concern to them. In the alternative, the Council, supported by the Commission, submits that the action is inadmissible as regards the basic act because of the fact that it was brought out of time.
58 The applicants claim that the contested acts are of direct and individual concern to them. Furthermore, they dispute the argument put forward by the Council and the Commission in the alternative that the action is inadmissible as regards the basic act because it was brought out of time. Finally, they submit that, should their action be declared inadmissible, they would be deprived of the right to effective judicial protection.
59 It is appropriate first to examine the admissibility of the action as regards the two contested acts, in the light of the applicants’ standing to bring the action.
The applicants’ standing to bring the action
60 Under the fourth paragraph of Article 263 TFEU, ‘any natural or legal person may … institute proceedings against an act addressed to that person or which is of direct and individual concern to them, and against a regulatory act which is of direct concern to them and which does not entail implementing measures’.
61 That provision restricts actions for annulment brought by a natural or legal person to three categories of acts, namely, firstly, acts addressed to that person, secondly, acts which are of direct and individual concern to him and, thirdly, regulatory acts which are of direct concern to him and which do not entail implementing measures.
62 In the present case, it is not in dispute that the contested acts are not addressed to the applicants, but they claim that the acts are of direct and individual concern to them.
63 Having regard to the facts of the present case, it is appropriate first of all to assess the criterion of direct concern to the applicants which is common to the second and third category of acts listed in paragraph 61 above.
64 In accordance with settled case-law, the condition that the decision forming the subject-matter of the proceedings must be of direct concern to a natural or legal person, as laid down in the fourth paragraph of Article 230 EC, requires, in principle, two cumulative criteria, namely that the contested measure, first, must affect directly the legal situation of the individual and, second, leave no discretion to its addressees, who are entrusted with the task of implementing it, such implementation being purely automatic and resulting from EU rules without the application of other intermediate rules (Case C‑15/06 P Regione Siciliana v Commission [2007] ECR I‑2591, paragraph 31; Joined Cases C‑445/07 P and C‑455/07 P Commission v Ente per le Ville Vesuviane and Ente per le Ville Vesuviane v Commission [2009] ECR I‑7993, paragraph 45; and order of 15 September 2009 in Case C‑501/08 P Município de Gondomar v Commission, not published in the ECR, paragraph 25).
65 Since, as regards the examination of the present action, the condition of direct concern laid down in the fourth paragraph of Article 263 TFEU has not been amended, it is appropriate to find that that case-law also applies to the present case.
66 In the present case, it is appropriate to note that, by their heads of claim, the applicants seek the annulment of the contested acts in their entirety. None the less, they specify in the application a number of provisions which concern the legal situation of civil servants and cause them harm, that is to say, firstly, ADEDY as a trade union organisation representing all civil services and, secondly, Mr Papaspyros and Mr Iliopoulos as civil servants themselves.
67 Thus, in the application, the applicants specify that the harm suffered consists, firstly, of a reduction in the Easter, summer and Christmas bonuses, provided for in Article 2(1)(f) of the basic act, and, secondly, an increase in the retirement age and a reduction in the retirement pensions to be paid to civil servants currently in service as a result of the reform of the pension system provided for in Article 2(2)(b) of the basic act. The applicants also refer, as harm suffered, to the deterioration in the functioning of public services as a result of the restriction on replacing retiring civil servants provided for in Article 2(2)(a) of the basic act, as amended by Decision 2010/486.
68 Accordingly, it is appropriate to examine, first, whether the three clearly identified provisions referred to above, which allegedly cause them harm, are of direct concern to the applicants and, next, whether the remaining provisions of the contested acts are of direct concern to them.
Whether Article 2(1)(f) of the basic act, Article 2(2)(b) of the basic act and Article 2(2)(a) of the basic act, as amended by Decision 2010/486, are of direct concern to the applicants
– Article 2(1)(f) of the basic act
69 Article 2(1)(f) of the basic act provides:
‘1. Greece shall adopt the following measures before the end of June 2010:
…
(f) a reduction of the Easter, summer and Christmas bonuses and allowances paid to civil servants with the aim of saving EUR 1 500 million for a full year (EUR 1 100 million in 2010)[.]’
70 It must be noted that that provision is vague since it does not specify the details of the reduction provided for, the way in which it will be implemented or the categories of civil servants which will be affected. However, the provision sets a clear objective which must be achieved by the reduction of the bonuses paid to civil servants, that is to say the saving of a certain sum per year. Thus, the provision does not prevent the Hellenic Republic, in particular, from excluding certain categories of civil servants from the principle of the reduction of bonuses, provided that the objective of making savings is achieved. It follows that that provision leaves it to the discretion of the Greek authorities to specify all the details of the reduction of bonuses by way of national implementing measures and it is those measures which, possibly, will directly affect the legal situation of the applicants. It will be the content of those measures which will determine whether, or to what extent, some of the applicants will suffer a reduction of bonuses. Those applicants will also be able to bring an action against those national implementing measures before the national courts.
71 In support of their claim that Article 2(1)(f) of the basic act is of direct concern to them, the applicants rely on settled case-law, pursuant to which the measure in question directly concerns a person where the possibility that addressees will not give effect to the measure concerned is purely theoretical and their intention to act in conformity with it is not in doubt (Case 11/82 Piraiki-Patraiki and Others v Commission [1985] ECR 207, paragraphs 8 to 10; Case C‑386/96 P Dreyfus v Commission [1998] ECR I‑2309, paragraph 44; Case T‑54/96 Oleifici Italiani and Fratelli Rubino v Commission [1998] ECR II‑3377, paragraph 56). In that regard, the applicants submit, in essence, that the Hellenic Republic was unable to give effect to the contested acts since compliance with those acts is the condition for the grant of financial aid to that State by means of the intergovernmental mechanism, as is shown in particular by recital 8 in the preamble to the basic act.
72 That argument cannot succeed. It is apparent from the very wording of Article 2(1)(f) of the basic act that that provision places the obligation on the Hellenic Republic to achieve a budgetary objective, namely saving EUR 1 500 million per year (EUR 1 100 million in 2010) by reducing the bonuses paid to civil servants. However, that provision does not stipulate either the means of making that reduction or the categories of civil servants affected by it, which factors are left to the discretion of the Hellenic Republic, as pointed out in paragraph 70 above.
73 It follows that Article 2(1)(f) of the basic act is not such as to affect directly the legal situation of the applicants and that, in the context of its implementation, the Greek authorities have a wide discretion. The conclusion must therefore be that that provision is not of direct concern to the applicants within the meaning of the fourth paragraph of Article 263 TFEU.
– Article 2(2)(b) of the basic act
74 Article 2(2)(b) of the basic act requires the Hellenic Republic, by the end of September 2010, to adopt a law reforming the pension system with a view to ensuring its medium and long-term sustainability. That provision also defines the broad lines of the content of that law. That provision provides, inter alia, that the law must introduce a statutory retirement age of 65 years; a merger of the existing pension funds in three funds; a reduction of the upper limit on pensions; a gradual increase in the minimum contributory period for retirement on a full benefit and stricter conditions for eligibility for disability pensions. Finally, it is specified that, thanks to the implementation of this law, the projected increase in the pension expenditure to GDP ratio should be reduced to below the euro area average over the next decades and the increase of public sector spending on pensions over the period 2010-2060 should be limited to less than 2.5% of GDP.
75 It is clear that Article 2(2)(b) of the basic act has been abrogated by Article 1(2) of Decision 2010/486. In the absence of any allegation by the applicants that the abrogated provision had adverse legal effects on them specifically during its period of validity, namely during the entire period between the date of notification of the basic act to the Hellenic Republic and the date of notification of Decision 2010/486 to the Hellenic Republic, it is appropriate to conclude that the applicants rely in vain on Article 2(2)(b) of the basic act to show that they have standing to bring an action against that act.
76 In any event, that provision was not of direct concern to the applicants during its period of validity. It is clear from the wording of that provision that it required the adoption of a national law in order to be implemented. It laid down the objective that that law was to achieve, namely the sustainability of the Greek pension system, and defined, in general terms, certain measures for which that law was to provide. Having regard in particular to its extent, since it did not concern only civil servants but all retiring workers in the private and public sectors, that provision was not intended to constitute a complete set of rules sufficient in itself for the Greek pension system, which did not need implementing measures and whose implementation was purely automatic, following from that provision alone. It follows that Article 2(2)(b) of the basic act left a very wide discretion to the Greek authorities to define the content of the law which was to implement it, provided that that law ensured the medium and long-term sustainability of the Greek pension system. It would accordingly have been that law which, possibly, would have directly affected the legal situation of the applicants. It follows that Article 2(2)(b) of the basic act is not of direct concern to the applicants within the meaning of the fourth paragraph of Article 263 TFEU.
– Article 2(2)(a) of the basic act, as amended by Decision 2010/486
77 Article 2(2)(a) of the basic act, as amended by Decision 2010/486, provides:
‘Greece shall adopt the following measures by the end of September 2010:
(a) … a replacement of only 20% of retiring employees in the public sector (central government, local governments, social security funds, public companies, state agencies and other public institutions) …’
78 Article 2(2)(a) of the basic act, as amended by Decision 2010/486, is not of direct concern to the applicants, since it constitutes a general measure of organisation and management of the public administration, which does not directly affect their legal situation. In so far as that provision brings about a deterioration in the functioning of public services and worsens the applicants’ conditions of employment, as they argue, it is a situation which does not influence their legal situation, but only their factual situation (see, to that effect, order of 21 May 2010 in Case T‑441/08 ICO Services v Parliament and Council, not published in the ECR, paragraph 62, and the case-law cited).
79 In the light of the above analysis, the conclusion must be that none of the three provisions, clearly identified by the applicants, of the contested acts is of direct concern to them within the meaning of the fourth paragraph of Article 263 TFEU.
Whether the remaining provisions of the contested acts are of direct concern to the applicants
80 In the context of the present action, the remaining provisions of the contested acts provide for the adoption by the Hellenic Republic of a certain number of budgetary consolidation measures, measures seeking to reinforce budgetary monitoring and discipline, and structural measures seeking, inter alia, to improve the competitiveness of the Greek economy in general, the final objective being a reduction in the excessive public deficit of the country.
81 Among the remaining provisions, there are provisions which concern civil servants in general and to which the applicants merely referred in the application without specifying how those provisions are of direct concern to them and harm civil servants in general.
82 By way of illustration, the Court notes that the applicants have referred to Article 2(1)(b) of the basic act, which provides for the adoption by the Hellenic Republic, before the month of June 2010, of a law abrogating all exemptions and autonomous taxation provisions in the tax system, including income from special allowances paid to civil servants; Article 2(5)(a) of the basic act, which, in essence, provides for the adoption by the Hellenic Republic, before the end of June 2011, of a streamlined and unified public sector wage grid with remunerations reflecting productivity and tasks; Article 2(3)(m) of the basic act, as inserted by Decision 2010/486, which provides for the adoption by the Hellenic Republic, before the end of December 2010, of an act disallowing local governments to run deficits at least until 2014; and, finally, Article 2(5)(e) of the basic act, as inserted by Decision 2010/486, which provides for the revision by the Greek authorities before the end of June 2011 of the functioning of supplementary/auxiliary public pension schemes with the aim of stabilising expenditure and guaranteeing the budgetary neutrality of those schemes.
83 As regards the abovementioned provisions and, in general, all the remaining provisions of the contested acts, there are two findings which must be made.
84 Firstly, all those provisions, given their range, require national implementing measures which will specify their content. In the context of that implementation, the Greek authorities have a wide discretion, provided that the final objective of reducing the excessive deficit is pursued. It is those national measures which, possibly, will directly affect the legal situation of the applicants.
85 Secondly, as regards the possible negative consequences which those provisions may have for the applicants and civil servants in general as members of ADEDY, financially or in terms of conditions of employment, it must be noted that those do not affect their legal situation but only their factual situation (see paragraph 78 above).
86 Consequently, and in the absence of more specific arguments from the applicants, it must be concluded that the remaining provisions of the contested acts are not of direct concern to them within the meaning of the fourth paragraph of Article 263 TFEU.
87 It follows from the foregoing that the contested acts are not of direct concern to the applicants.
88 The conclusion must therefore be that the applicants do not meet one of the conditions for admissibility laid down in the fourth paragraph of Article 263 TFEU, namely that requiring direct concern, which is common to actions brought against the second and third categories of acts covered by that provision (see paragraph 61 above), so that it is not necessary to examine whether the contested acts are of individual concern to the applicants or whether the contested acts constitute regulatory acts within the meaning of the abovementioned provision (see, to that effect, order of 15 June 2011 in Case T‑259/10 Ax v Council, not published in the ECR, paragraph 25).
Effective judicial protection of the applicants
89 As regards the applicants’ allegation that, should their action be declared inadmissible, they would be deprived of the right to effective judicial protection, it must be pointed out that, as shown by well-established case-law, the Treaty, in Articles 263 TFEU and 277 TFEU, on the one hand, and Article 267 TFEU, on the other, established a complete system of legal remedies and procedures designed to enable the European Union Courts to review the legality of acts of the institutions. Under that system, where natural or legal persons cannot, by reason of the conditions for admissibility laid down in the fourth paragraph of Article 263 TFEU, directly challenge Community measures of general application, they are able to plead the invalidity of such acts before the national courts and ask them, since they have no jurisdiction themselves to declare those measures invalid, to make a reference to the Court of Justice for a preliminary ruling in that regard (see, to that effect, Case C‑50/00 P Unión de Pequeños Agricultores v Council [2002] ECR I‑6677, paragraph 40; Case C‑263/02 P Commission v Jégo-Quéré [2004] ECR I‑3425, paragraph 30; and Case C‑362/06 P Sahlstedt and Others v Commission [2009] ECR I‑2903, paragraph 43).
90 Thus, in the present case, having regard to the fact that the contested acts need implementing measures by the Hellenic Republic, the applicants have the possibility of attacking those measures before the national courts and, in the context of that dispute, arguing that the contested acts are invalid, thus leading the national court to refer a question for a preliminary ruling to the Court of Justice.
91 In order to justify their argument that they are deprived of the right to effective judicial protection, the applicants point to the slowness of proceedings before the Greek administrative courts and the fact that dismissal of their action as inadmissible by the General Court would confer a presumption of legality on the contested acts.
92 Those arguments cannot succeed.
93 Firstly, it is apparent from case-law that the admissibility of an action for annulment before the European Union courts does not depend on whether there is a remedy before a national court enabling the validity of the act being challenged to be examined (see order in Case T‑94/04 EEB and Others v Commission [2005] ECR II‑4919, paragraph 63, and the case-law cited). A fortiori, the admissibility of an action before the European Union courts cannot depend on the alleged slowness of national proceedings. In that regard, it must also be borne in mind that the second subparagraph of Article 19(1) TEU provides that Member States are to provide remedies sufficient to ensure effective legal protection in the fields covered by EU law.
94 Secondly, dismissal of the present action as inadmissible does not create any substantive precedent for the national courts.
95 It follows from the foregoing considerations that the applicants’ allegation that dismissal of their action as inadmissible by the General Court would adversely affect their right to effective judicial protection must be rejected.
96 Finally, the applicants’ allegation that the substance of the action must be examined, since the defects in the contested acts are so serious that they undermine public trust in European Union bodies must be rejected. The European Union courts cannot ignore the rules laid down in Article 263 TFEU for admissibility of actions for annulment.
97 In the light of all the foregoing, the present action must be declared inadmissible. Consequently, there is no need to rule on the plea of inadmissibility raised in the alternative by the Council concerning the fact that the action was brought out of time as regards the basic act.
Costs
98 Under Article 87(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. As the applicants have been unsuccessful, they must be ordered to pay the costs in accordance with the form of order sought by the Council.
99 In accordance with the first subparagraph of Article 87(4) of the Rules of Procedure, the institutions which have intervened in the proceedings are to bear their own costs. Consequently the Commission must bear its own costs.
On those grounds,
THE GENERAL COURT (First Chamber)
hereby orders:
1. The action is dismissed.
2. Anotati Dioikisi Enoseon Dimosion Ypallilon (ADEDY), Mr Spyridon Papaspyros and Mr Ilias Iliopoulos are ordered to bear their own costs as well as those incurred by the Council of the European Union.
3. The European Commission is ordered to bear its own costs.
Luxembourg, 27 November 2012.
Table of contents
Legal context
EU Treaty
FEU Treaty
The stability and growth pact
Background to the dispute
The Greek debt crisis and the intergovernmental mechanism for financial aid to the Hellenic Republic
Excessive debt procedure with regard to the Hellenic Republic
Procedure preceding adoption of the contested acts
Contested acts
– Decision 2010/320/EU
– Decision 2010/486/EU
Procedure and forms of order sought by the parties
Law
The applicants’ standing to bring the action
Whether Article 2(1)(f) of the basic act, Article 2(2)(b) of the basic act and Article 2(2)(a) of the basic act, as amended by Decision 2010/486, are of direct concern to the applicants
– Article 2(1)(f) of the basic act
– Article 2(2)(b) of the basic act
– Article 2(2)(a) of the basic act, as amended by Decision 2010/486
Whether the remaining provisions of the contested acts are of direct concern to the applicants
Effective judicial protection of the applicants
Costs