Committee for the Abolition of Illegitimate Debt

European Institutions (the European Commission and the European Central Bank Central Bank The establishment which in a given State is in charge of issuing bank notes and controlling the volume of currency and credit. In France, it is the Banque de France which assumes this role under the auspices of the European Central Bank (see ECB) while in the UK it is the Bank of England.

ECB : http://www.bankofengland.co.uk/Pages/home.aspx ) must also have acted by taking into account the requirements of the Charter of Fundamental Rights (CFR), the Treaty of the European Union (TEU), and the Treaty on the Functioning of the European Union (TFEU). Finally IMF IMF
International Monetary Fund Along with the World Bank, the IMF was founded on the day the Bretton Woods Agreements were signed. Its first mission was to support the new system of standard exchange rates.

When the Bretton Wood fixed rates system came to an end in 1971, the main function of the IMF became that of being both policeman and fireman for global capital: it acts as policeman when it enforces its Structural Adjustment Policies and as fireman when it steps in to help out governments in risk of defaulting on debt repayments.

As for the World Bank, a weighted voting system operates: depending on the amount paid as contribution by each member state. 85% of the votes is required to modify the IMF Charter (which means that the USA with 17,68% % of the votes has a de facto veto on any change).

The institution is dominated by five countries: the United States (16,74%), Japan (6,23%), Germany (5,81%), France (4,29%) and the UK (4,29%).
The other 183 member countries are divided into groups led by one country. The most important one (6,57% of the votes) is led by Belgium. The least important group of countries (1,55% of the votes) is led by Gabon and brings together African countries.

http://imf.org and its members have to respect human rights and fundamental freedoms when imposing adjustment programmes.

All these actors have also failed to meet the most basic of requirements to prevent human rights harms in the policies they pursue. Neither ex ante nor ex post human rights impact assessments were conducted, although the preparation of such assessments forms a basic expectation of international human rights law and EU law and policy. This includes guarantees Guarantees Acts that provide a creditor with security in complement to the debtor’s commitment. A distinction is made between real guarantees (lien, pledge, mortgage, prior charge) and personal guarantees (surety, aval, letter of intent, independent guarantee). of consultation by persons likely to be affected by the policies, and access to information and transparency regarding public access to the results of the assessments.

As regards the procedure provided for by the Greek Constitution, both the Memoranda and the loan agreements which effectively stripped Greece of most of its sovereign rights are international agreements and, therefore, had to be ratified by the Parliament. As such, the Greek Constitution has been violated. Moreover, the two most important delegation clauses to the Ministry of Finance providing for the issuing of presidential decrees, in order to take proper measures of fiscal policy for the achievement of the goals of the programme, are clearly unconstitutional.

Finally, it has to be noted that some of the clauses in the agreements between Greece and its creditors are clearly abusive, and demonstrate that Greece had effectively been coerced to surrender significant aspects of its sovereignty. By choosing the English law as the governing law for those agreements, the implicit objective of the creditors in their choice of law clause was to bypass the Greek Constitution and Greece’s international human rights obligations. And thus, to the extent that English law does not incorporate, or conflicts with, Greece’s human rights treaty and customary obligations, it is invalid and merits no obligation to be honoured. Moreover, the bad faith of the parties with which they intended to bypass the Greek constitution and the country’s international law obligations, as well as the unconscionable character of the agreements, render them invalid under English law.

1. Violation of human rights by Greece

As demonstrated in Chapter 6, the measures adopted and implemented by the Greek government under the “bailout” programme have led to a range of human rights violations. Since Greece bears primary responsibility for the protection and promotion of human rights for all subject to its jurisdiction, it can be argued that it bears primary responsibility for such violations.

The claim that such measures were imposed by the creditors of Greece through loan agreements cannot be invoked to justify measures that result in such violations. This follows from Article 103 of the UN Charter, which affirms the primacy of obligations under the Charter of the United Nations over any other conflicting international obligations. With specific reference to Greece, the European Committee of Social Rights (ECSR) has observed that Greece could not invoke obligations such as the ones emanating from international agreements, including the loan agreements and the MoU in order to justify measures that result in human rights violations [1].

2. Human rights violations by the creditors

The Euro Area Member States

The Euro Area Member States approving the signature of the Loan Agreement and MoU [2], remain subject to the law on state responsibility and the legal consequences that flow from any breach of their international obligations.

All EU member states are parties to the ICESCR. The duties imposed under the Covenant extend to the enjoyment of economic, social and cultural rights outside the national territory, as confirmed by the Committee on Economic, Social and Cultural Rights. Other UN human rights treaty bodies have reached the same conclusion. It is also the view of human rights bodies that states cannot do together through an intergovernmental framework [3] that which they are prohibited from doing when acting alone, a position which is consistent with general international law [4].

The conditionalities imposed on Greece and the subsequent denial of socioeconomic rights as detailed in Chapter 6 constitute a breach of human rights obligations of each Euro Area (Lender) Member State party to the Covenant and to the CRC, and defeat the object and purpose of its obligations under the UN Charter. Each Euro Area (Lender) Member State is also required to ensure that non-state actors whose conduct the state is in a position to influence is prohibited from impairing the enjoyment of such rights. This is relevant, in particular, to understanding the responsibility of the Euro Area Member States as lenders of bailout funds provided through the European Financial Stability Facility.

The EU institutions

It is true that in the controversial Pringle case, in which the validity of the establishment of the European Stability Mechanism ESM
European Stability Mechanism The European Stability Mechanism is a European entity for managing the financial crisis in the Eurozone. In 2012, it replaced the European Financial Stability Facility and the European Financial Stabilisation Mechanism, which had been implemented in response to the public-debt crisis in the Eurozone. It concerns only EU member States that are part of the Eurozone. If there is a threat to the stability of the Eurozone, this European financial institution is supposed to grant financial ‘assistance’ (loans) to a country or countries in difficulty. There are strict conditions to this assistance.

http://www.esm.europa.eu/ (ESM) was challenged [5], the CJEU stated that the EU Member States were not bound to comply with the CFR when they were acting outside EU Law. The Court took the view that the Member States were not implementing EU law, within the meaning of Article 51(1) of the Charter, when they established the ESM. Whether or not one agrees with this position insofar as it concerns the EU Member States, it is clear that this extends to the situation where institutions established by the EU Treaties take action, such as the European Commission and the European Central Bank ECB
European Central Bank The European Central Bank is a European institution based in Frankfurt, founded in 1998, to which the countries of the Eurozone have transferred their monetary powers. Its official role is to ensure price stability by combating inflation within that Zone. Its three decision-making organs (the Executive Board, the Governing Council and the General Council) are composed of governors of the central banks of the member states and/or recognized specialists. According to its statutes, it is politically ‘independent’ but it is directly influenced by the world of finance.

https://www.ecb.europa.eu/ecb/html/index.en.html .

Article 51 para. 1 of the EU Charter of Fundamental Rights states:
“The provisions of this Charter are addressed to the institutions, bodies, offices and agencies of the Union with due regard for the principle of subsidiarity and to the Member States only when they are implementing Union law”.

The phrase «when they are implementing Union law» applies to the Member States, who may act either in the field of application of EU law, or in situations that are not covered by EU law. EU institutions per definition are bound to comply with the requirements of the Charter, since that distinction does not apply to them: they owe their very existence to EU law, and the Charter should therefore apply to any conduct they adopt. The Explanations relating to the Charter of Fundamental Rights [6] strongly support this reading, since the explanations to Article 51 clearly distinguish EU institutions, bodies, offices, and agencies, on the one hand, and the EU Member States on the other hand, referring to the expression “implementing Union law” only with regard to the latter. Indeed, this is the view of legal doctrine [7]. It was also the view expressed by Advocate General J. Kokott in the Pringle case itself, where she noted, in the view she delivered on 26 October 2012, that “The Commission remains, even when it acts within the framework of the ESM, an institution of the Union and as such is bound by the full extent of European Union law, including the Charter of Fundamental Rights” [8].

Thus, the European Commission, in discharging the role assigned to it under the Intercreditor Agreement of 8 May 2010, and the Council of the EU, acting under Articles 126(9) and 136 of the TFEU, to require Greece to take certain measures for the deficit reduction deemed necessary to remedy the situation of excessive deficit, should have acted taking into account the requirements of the CFR.

As regards the second rescue plan presented to Greece, which was launched after the establishment of both the EFSF and the EFSM, insofar as it assumes a role in the EFSF -in particular in the negotiation of the MoU with the borrowing Member State- the European Commission cannot ignore the fact that, as an institution of the European Union, it is bound to ensure that all its actions comply with the Charter of Fundamental Rights.

Adoption of the Regulation (EU) No. 472/2013

This Regulation [9] adopted on 21 May 2013 defines the conditions applying to countries of the eurozone placed under “enhanced surveillance”.

Two implications follow. First, after the date of 30 May 2013, even the financial mechanisms originally established outside EU law were provided with a framework based in EU law, under Article 136 of the TFEU (the legal basis of the Regulation) and the Regulation itself. The measures adopted under the framework of the Regulation are clearly “implementing EU law”, and therefore are subject to the requirements of the CFR: the Regulation confirms this, by highlighting in particular the requirement that such measures comply with Article 28 of the Charter, which concerns the right of collective bargaining and action.

Second, the Regulation establishes certain requirements of its own. These include in particular a requirement imposed on the European Commission to evaluate the sustainability of sovereign debt Sovereign debt Government debts or debts guaranteed by the government. (Article 6), as well as a requirement imposed on the Member State placed under enhanced surveillance to ensure that macroeconomic adjustment measures are adopted with the participation of unions and other civil society actors (Article 8).

Conclusion as regards EU Member States and the EU Commission

It follows from the developments above that the MoU negotiated respectively in 2010 and in 2012 should have taken into account the requirements of the CFR.

For the 2010 agreement, this follows from the roles fulfilled by the European Commission, tasked with certain responsibilities under the Intercreditor Agreement, and by the Council of the EU, acting under Articles 126(9) and 136 of the TFEU. For the 2012 agreement with the EFSF, this follows from the role assigned to the European Commission in the Framework Agreement and the Consolidated Articles of Association establishing the Facility. Any doubts as to whether the CFR applies to the implementation of the MoU are removed by the adoption of the Regulation No. 472/2013. In addition, as noted above, the 1961 European Social Charter continued to apply to Greece throughout the process. This was explicitly confirmed by the ECSR in the above mentioned case concerning the implementation by Greece of austerity measures [10].

Furthermore, we must remind that European Lenders (States and Institutions) must respect the TEU, particularly Articles 2 and 3.

According to the Article 2, “the Union is founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities. These values are common to the Member States in a society in which pluralism, non-discrimination, tolerance, justice, solidarity and equality between women and men prevail”.

Article 3 states that “it shall promote economic, social and territorial cohesion, and solidarity among Member States”.

Finally, Article 9 of the TFEU provides that “In defining and implementing its policies and activities, the Union shall take into account requirements linked to the promotion of a high level of employment, the guarantee of adequate social protection, the fight against social exclusion, and a high level of education, training and protection of human health”.

Thus, it was a breach of both EU law and of international law to sideline human rights in the design of the macroeconomic programmes that were negotiated between Greece and its creditors, both in 2010 and in 2012.

While some doubts may exist as to the applicability of the CFR to EU member states as regards the adoption and implementation of such programmes at least until the date of 30 May 2013, and while the protection of social rights under the CFR is in any case relatively weak, it is uncontroversial that the European Social Charter should have been taken into account. The impacts on the rights protected by provisions of the European Social Charter accepted by Greece should have been assessed, and any incompatibility, once identified, should have led to amendments of the adjustment programmes in order to remove the risk of incompatibility.

By not doing so, Greece, as well as the EU Member States who are bound to respect international human rights law, engage their international responsibility.

The IMF

The ECtHR has repeatedly held that while obligations under the ECHR do not preclude States cooperating in certain fields of activity, the obligations of Contracting Parties continue even after a State has transferred certain competences to international organisations [11]. IMF Member States are thus required to comply with their existing human rights obligations including when acting under the auspices of the IMF.

As for the IMF qua the IMF, as any other subject of international law, international organizations are ‘bound by any obligations incumbent upon them under general rules of international law, under their constitutions or under international agreements to which they are parties’ [12] The IMF is required to refrain from steps that would undermine the possibility of a borrowing State complying with its own national and international human rights obligations [13]. The IMF, moreover, is bound by the general principles and purposes of the UN Charter as a specialised agency of the UN [14]. These general principles and purposes include respect for human rights and fundamental freedoms.

While the traditional view has wrongly been that the IMF was prohibited from considering human rights because of a prohibition, derived per analogy from Article IV, section 10 of the Articles of Agreement of the International Bank for Reconstruction and Development (‘Political Activity Prohibited’, it is to be noted that the Articles of Agreement of the IMF do not include a similar clause), it is implausible to justify a refusal to consider the human rights implications of its recommendations to States, particularly when compliance with such recommendations is a condition for the receipt of funds, given the deeply interventionist nature of such policy prescriptions addressed to the States concerned.

3. Breaches of the procedures

3.1 Transparency, social and human rights impact assessment (HRIA)

Under international human rights law, States, whether acting singly or jointly, are under an obligation to inform themselves about the potential impact of their conduct on the enjoyment of socio-economic rights including outside of their national territories prior to undertaking such conduct. Many international guidelines [15] as well as observations from treaty bodies [16], underscore the need carry out HRIAs.

And thus, the European Commission has committed, through a set of guidelines [17], to systematically undertake impact assessments, including a fundamental rights dimension, in its legislative proposals. The Court of Justice of the European Union emphasized the importance of impact assessments in the adoption of legislative measures [18]. Building in part on this commitment and on resolutions of the European Parliament on the same topic, the European Ombudsman took the view in a case related to the Free Trade Agreement with Vietnam, that the refusal of the European Commission to prepare a human rights impact assessment was an instance of maladministration [19].

It is striking that no assessment of the human rights impact was prepared when the macroeconomic adjustment programmes concerning Greece were designed.

Moreover, a range of procedural deficiencies were raised and denounced in the 2014 EP Report [20], and as it has been pointed out by the scientific Commission of the Hellenic Parliament: “All phases of the adjustment programme-drafting were indeed lacking in transparency and democratic oversight. From the preparatory phase of negotiation, to the development of the mandates and the formulation of specific measures the European Parliament was until 2013 completely marginalized” [21].

Neither in 2010, nor in 2012, was there any attempt to assess the human rights impacts of the macroeconomic adjustment and fiscal consolidation that were the conditions for the loans. In the case of the 2012 MoU, the absence of any kind of human rights impact assessment is especially troubling, since the harms were widely known by then.

The Euro Area Member States, the EU Member States acting within the Council, the European Commission and ECB as EU institutions, and the IMF and IMF Member States have failed to meet the most basic of requirements to prevent human rights harms in the policies they pursue. Neither ex ante nor ex post human rights impact assessments were conducted, although the preparation of such assessments forms a basic expectation of international human rights law and EU law and policy, including guarantees of consultation by persons likely to be affected by the policies and access to information and transparency regarding public access to the results of assessment [22].

3.2 The unconstitutionality of the loan agreements and MoU

3.2.1 Violation of the ratification procedure as provided by the Greek Constitution

The negotiation and signing of lending agreements took place through a complete absence of transparency, and breach the procedure as foreseen by the Greek Constitution.

Both the Memoranda and the loan agreements which effectively stripped Greece of most of its sovereign rights are international agreements and, therefore, had to be ratified by the Parliament. Indeed, according to article 36(2) of the Hellenic Constitution, international agreements must be ratified by an implementing law by the plenary of Parliament [23]. They should have been voted by a qualified majority of three fifths of the deputies, as Art. 28 par. 2 prescribes and as several members of the Conseil d’Εtat insisted on (see decision 668/20120, par. 29).

However, the Loan Agreement of 8 May 2010 was even not distributed in the Parliament, nor was it publicly discussed. Similarly, the austerity measures were adopted without having ever been discussed in the Parliament. In fact, in a document entitled “Statement on the support to Greece by Euro area Members States” of 11 April 2010 (Annex II, Law no 3845/2010), it was announced that the Euro Area Member States, together with the ECB and the IMF, were prepared to provide a loan to Greece and that the terms of the loan had ‘already been agreed’. This demonstrates that none of the parties involved had any intention of respecting the procedures of the Hellenic Constitution or to comply with even elementary requirements of transparency.

European States which are parties to the Loan Agreements are all democratic States and thereby fully aware of the typical national constitutional rule requiring the ratification of any international treaty. A fortiori such an obligation applies for the international agreements like the Loan Agreements which determine the future of a State and its citizens for decades. Therefore, both European States and the “institutions” - especially European Union and European Central Bank - knew or should have known that the non-ratification of the Loan Agreements by the Greek parliament entailed their unconstitutionality.

Article 1(4) of Law 3845/2010 granted the Finance Minister authority to negotiate and sign the texts of all pertinent loan and financing agreements (including treaties, contracts and MoU). These agreements, however, had to be brought to parliament for ratification, something which never occurred. Five days later, Article 1(9) of Law 3847/2010 modified Article 1(4) of Law 3845 by stipulating that the term “‘ratification’ [by parliament] is replaced by ‘discussion and information’”.

Moreover, all pertinent agreements (irrespective of their legal nature) were declared as producing legal effect upon their signature by the Finance Minister.

Hence, Articles 28 and 36 of the Constitution were effectively abolished by a mere legislative amendment. What is more, Law 3845 included two of the three MoU as mere annexes, branding them as a ‘programme plan’.

Even so, on 3 June 2010 a bill was presented to Parliament for the ratification of all loan agreements, stipulating that their entry into force commences from the date the bill is tabled (Article 3). It would appear that, realising that Law 3847/2010 was unconstitutional, the then government submitted this bill to Parliament in order to provide the measures adopted with a legal sanction.

3.2.2 The delegation clause to the Minister of Finance is unconstitutional

The two most important delegation clauses to the Ministry of Finance are [24]: a) the clause of Art. 1 par. 4 and b) the clause of Article 2 par. 1a (of the law 3845/2010), providing for the issuing of presidential decrees, in order to take proper measures of fiscal policy for the achievement of the goals of the programme. These two delegation clauses are clearly unconstitutional.

The clause contained in Art. 1 par. 4 is unconstitutional because it violates Art. 36 par. 2 of the Greek Constitution [25]. This argument is further reinforced by Art. 36 par. 4 that explicitly forbids any delegation in view of the ratification of an international treaty [26]. The Conseil d’Etat, in its leading case 668/2012, refused to examine the constitutionality of this delegation clause (par. 30). However, according to the dissenting opinion of two judges, the clause in question violated Art. 36 par. 2 and 28 par. 1 of the Constitution (par. 31).

Article 2 par. 1a contravenes Art. 43 par. 4 of the Hellenic Constitution [27]. Taking into account that Law 3845/2010 itself does not provide for a broad framework within which the delegated powers should be exercised, it does not offer any “general principles and directives of the regulation to be followed”. Therefore, the delegation is vague and not specific, hence unconstitutional according to the Hellenic Council of State (see decisions 3051/2014 and 1210/2010).

4. Abusive clauses in the agreements between Greece and its creditors

Since 2010, the governing law for the loan agreements between Greece and its public creditors is English law. This also governs new bonds received by private creditors under terms of the 2012 PSI.

The implicit objective of the creditors (in a much stronger negotiating position) in their choice of law clause was to bypass the Greek Constitution and Greece’s international human rights obligations. Indeed, a tribunal mandated to apply only English law, the parties assumed, would restrict itself to a strict interpretation of the law of contract which is more in favour of the creditors. Although English law encompasses, among others, the Human Rights Act, it was clear to the parties that this Act would be inapplicable since it is subject to territorial limitations under Article 22 thereof. Given that the majority of the financing was undertaken through inter-governmental organisations, it was also known that these do not possess treaty-based human rights obligations and enjoy wide-ranging immunities.

Some of the clauses in the contracts are moreover clearly abusive, and demonstrate that Greece had effectively been coerced to surrender significant aspects of its sovereignty. By way of illustration: “The Borrower hereby irrevocably and unconditionally waives all immunity to which it is or may become entitled, in respect of itself or its assets, from legal proceedings in relation to this Agreement, including, without limitation, immunity from suit, judgment or other order, from attachment, arrest or injunction prior to judgment, and from execution and enforcement against its assets to the extent not prohibited by mandatory law” [28].

As if this surrender of sovereignty was not enough, Greece’s creditors envisaging that the abusive and odious nature of their agreement might be viewed as such by a competent court, inserted a clause that rendered the borrower’s obligations intact despite the invalidity of the agreement.

“If any one or more of the provisions contained in this Agreement should be or become fully or in part invalid, illegal or unenforceable in any respect under any applicable law, the validity, legality and enforceability of the remaining provisions contained in this Agreement shall not be affected or impaired thereby. Provisions which are fully or in part invalid, illegal or unenforceable shall be interpreted and thus implemented according to the spirit and purpose of this Agreement” [29].

Even if English law were to be applied, the terms of the agreement would be deemed largely repugnant. For one thing, it has been held that as far as possible, the common law must be developed in a way that gives effect to the ECHR or, as it has been put, to ‘weave the Convention rights into the principles of the common law and of equity Equity The capital put into an enterprise by the shareholders. Not to be confused with ’hard capital’ or ’unsecured debt’. ’ [30]. Fundamental provisions of the ECHR have evidently been breached here. Secondly, under the common law, credit agreements that are highly prejudicial in favour of the lender, further imposing unconscionable conditions that interfere with the borrower’s personal sphere and life choices are contrary to public policy [31]. Finally Englishcourts have in practice accepted that good faith is part of English law through EU law and principles [32]. As already explained, the absence of good faith has been a distinct feature of Greece’s lending agreements.

States are under no obligation to enforce contracts or clauses that violate their constitution or which restrict the three branches of government, as this effectively signals the termination of sovereignty. As a result, the doctrine of executive necessity, originally formulated by western liberal democracies, posits the idea that contracts or promises made by the government are unenforceable in the public interest Interest An amount paid in remuneration of an investment or received by a lender. Interest is calculated on the amount of the capital invested or borrowed, the duration of the operation and the rate that has been set. if they fetter the future competence and powers of the executive [33].

To conclude, to the extent that English law does not incorporate, or conflicts with, Greece’s human rights treaty and customary obligations, it is invalid and merits no obligation to be honoured. Moreover, the bad faith of the parties with which they intended to bypass the Greek constitution and the country’s international law obligations, as well as the unconscionable character of the agreements, render them invalid under English law.

Chapters :
Chapter 1 : Debt before the Troika
Chapter 2 : Evolution of the Greek public debt during 2010-2015
Chapter 3 : Greek public debt by creditors in 2015
Chapter 4 : Debt mechanism in Greece
Chapter 5 : The conditionnalities against sustainability
Chapter 6 : The impact of the “bailout” programme on human rights
Chapter 8 : Assessment of the debt as regards illegitimacy, odiousness, illegality and unsustainability
Chapter 9 : Legal foundations for repudiation and suspension of Greek sovereign debt
Preliminary Report of the Truth Committee on Public Debt in PDF

Additional :
Eric Toussaint’s speech at the presentation of the preliminary report of the Truth Committee