A number of member states have received direct financial assistance through balance of payments support (Hungary, Rumania, Latvia), bilateral agreements/IMF (Greece), the temporary emergency funds/IMF (Ireland, Portugal, Greece), and the permanent emergency fund (Spain and Cyprus).
Several member states have (also) indirectly benefited through the Securities Markets Programme (SMP) created in May 2010, a bond-buying programme of the European Central Bank that was replaced in September 2012 by the Outright Monetary Transactions (OMT) programme (Greece, Ireland, Portugal, Italy, Spain).
If relevant, describe the political, economic and legal situation leading up to the moment of the formal request of direct financial assistance.
Since May 2011 the Cypriot Republic, following continuous downgrades of its credit worthiness by the International Rating Agencies was excluded from the international financial markets. In October 2011 the Greek bonds got impaired, a fact that affected the capital base of the Bank of Cyprus as well as the Laiki (Popular) Bank.
On 25 June 2012 the Cypriot Government, following the very serious and long term structural and financial problems, submitted a request for stability support to the President of the Eurogroup. Following a two-week troika visit to Cyprus in November 2012, the government said that a preliminary agreement on the terms of a Memorandum of Understanding (MoU) with the official lenders was reached. A troika statement released shortly after read that significant progress was indeed made in the negotiations with domestic authorities. The preliminary MoU was signed in November 2012. The terms of the MoU have however been altered since the preliminary MoU in order to reflect developments since a new centre-right government (Democratic Rally) came to power in February 2013. As a result of the election of the new government the internal political dynamics changed making an end to the persisting deadlock within Cyprus which was created by the previous governing party (AKEL) unwilling to sign the agreement.
Before being forced to resort to financial assistance from the ESM, Cyprus sought assistance from Russia. Cyprus asked for a new loan of €5 billion from Russia, in addition to the 5 year extension and the lowering of interest rates of the existing loan of € 2,5 billion. Another scenario that was popular at the time was that Russia had suggested buying Cypriot banks (especially the Cyprus Popular Bank), which, however, was denied both by the government’s delegate and the bank. Even though Russia agreed to extend the maturity and reduce the interest on its loan to Cyprus, the recourse to the ESM was inevitable.
The Emergency Liquidity Assistance (ELA) by the Central Bank of Cyprus that was already financing Laiki Bank was extended in February 2013 to the Bank of Cyprus. On 16 March 2013 the Cypriot government reached political agreement with the Eurogroup, in the framework of a financial assistance programme that included the provision of financial assistance of €10 billion from the Eurogroup and a possible contribution by the IMF. In the same framework the Cypriot governance undertook the commitment to take budgetary and political measures, a one –off stability levy on all bank accounts (insured and uninsured) included. To this end, the Cypriot government presented a Draft Act to the Parliament which was rejected by the Parliament on 19 March 2013.
The Draft Act had not incorporated the governor’s of the Central Bank of Cyprus suggestion with regard to the insured deposits, who argued that the insured deposits (the biggest part of the population are secured depositors according the governor), that is deposits of up to €100.000, should be exempted from the Draft Bill in order to protect the Cypriot banking system.
All parties in the Cypriot parliament voted against the haircut, with the exception of the governing party, Democratic Rally, which abstained from voting. The main arguments justifying the negative voting could be summarized to the infringement of the right to property and the ‘shameful behavior’ of the European partners which contravenes the basic premise of the EU construction, that of solidarity among the peoples of Europe (Z. Koulias, independent member of Parliament); the possibility of restructuring the banking sector from ‘within Cyprus’ and not following orders that will cause a tremendous disrupt in the financial system of Cyprus (Perdikis – Ecologists’ Party); the unsuccessful programme suggested and implemented by the troika in Cyprus and other countries (Syllouris, European Party); the catastrophic repercussions of the haircut decision for Cyprus as a financial center as well as the ‘blackmail’ behavior of the Eurogroup towards Cyprus (Omirou, Socialist Party EDEK); the blackmailing and solidarity lacking behavior of the Eurogroup as well as the possibility of seeking for financial solutions outside the EU, for instance in Russia and China (M. Karogian, Democratic Party); the possibility of finding other solutions outside the EU [ie the possibility of issuing a national solidarity bond] as well as the catastrophic repercussions of a potential haircut (Kyprianou, AKEL).
The ECB decided on 21 March 2013 to maintain the (extraordinary) liquidity provision via the ELA only until the 25 March 2013, unless an EU and IMF special scheme applied, that would ensure the financial solvency of the banks. In light of these developments, the possibility of an immediate bankruptcy of the Laiki Bank was in sight, with very likely domino effects for the Bank of Cyprus, the whole banking system but also the Cypriot Republic who had acted as a guarantor of the Cypriot bonds. Such a development would have repercussions for all account holders (secured and unsecured).
On 22 March 2013 the Cypriot Parliament passed the Law 17 (I)/2013 on the Consolidation of the Banks, which was published on the official Journal the same day. The key elements for a macroeconomic adjustment programme were agreed by the Eurogroup on 25 March 2013. The programme addressed Cyprus’s financial sector imbalances including an appropriate downsizing of the country’s financial sector, fiscal consolidation, structural reforms and privatisation. (See also the Eurogroup statement on Cyprus: http://eurozone.europa.eu/newsroom/news/2013/03/eg-statement-cyprus-25-03-13/
The programme also provided for ‘haircuts’ in the saving accounts of uninsured depositors, rendering them part of the bail in. The new scheme for financial assistance was fiercely debated in the Parliament on April 30 2013, and it was eventually ratified by a very small majority (29 votes in favour of the ratifying law of the FFA and the MoU and 27 votes against) (as to the debate see questions X.2 and X.3).
Describe the public and political debate during the negotiations on the financial assistance instruments, notably the Memorandum of Understanding (MoU) and Financial Assistance Facility Agreement, in particular in relation to the implications for (budgetary) sovereignty, constitutional law, socio-economic fundamental rights, and the budgetary process.
The political differences regarding the negotiations of the MoU and the FFA were fiercely debated in the plenary session of the Parliament on 30 April 2013. The rejection of the Eurogroup’s proposed programme after the first Eurogroup meeting on the 15th of March 2013 was celebrated by the majority of both the public and the political parties. The decisions of the second Eurogroup meeting were now put before the Parliament with the government trying to convince the majority to pass the ratification of the MoU and FFA law (eventually Law 1 (III) of 2013).
As anticipated the main positions of the representatives of the 5 political parties, as well as one independent Parliamentarian’s (Z. Koulias), revolved around the acceptance of the MoU, the loss of sovereignty of Cyprus, the repercussions of the acceptance of financial assistance by Cyprus and the subsequent MoU commitments, the impact such a decision would have on the two Cypriot banks as well as the alternatives to the MoU as a way out of the crisis (see also question 50 for the discussion in the Parliamentarian Committee).
The government (Democratic Rally) together with the European Party voted in favour of the MoU, while stressing that although it is not the ideal solution, it is definitely the most feasible one for the time being as well as the one that will give Cyprus the opportunity to proceed to structural changes.
In favour of the MoU voted 29 parliamentarians, while 27 voted against. The Ecologists’ Party (but not the Member of the party N. Koutsou), the European Party– with the exception of its Member N. Koutsou , the Democratic Rally and the Democratic Party voted in favour, whilst the previous government ‘AKEL’, as well as the social Democratc (ΕΔΕΚ) together with the independent Parliamentarian Z. Koulia voted against the MoU (or they supported its (re)negotiation). The AKEL party, in particular, suggested, among other propositions, the exit of Cyprus from the Eurozone, while several parties that voted against the MoU stressed the pre-election statements of the government, i.e. that no haircuts to the depositors will be imposed.
Besides the MoU, the Parliament was called to vote in favour or against 3 more Draft Bills that related to the commitments the Cypriot government would undertake if it signed the MoU. The first Draft Bill, is the ratifying Law of the MoU and the FFA (eventually Law 1 (III) of 2013); the second one relates to the transposition of the Directive for the long term residents in the Republic of Cyprus and the restriction of their access to allowances the third one to a Draft Bill on the revision of the Republic’s housing policy, as agreed with the troika, in order to save funds.
What is the status of the financial assistance instruments in the national legal order (political agreement, international treaty, etc.)?
Based on the Eurogroup’s assessment, on 24 April 2013 the ESM Board of Governors decided to grant, in principle, stability support to Cyprus. On 8 May 2013 the ESM Board of Directors approved the financial assistance facility agreement (FFA), including the ‘ESM FAFA Specific Terms’, and ‘ESM FAFA General Terms’. The FFA agreement is signed between the ESM and the Republic of Cyprus (as the beneficiary member) and the Central Bank of Cyprus (as the Central Bank). According to the terms of the FFA, the first tranche of financial assistance will be provided to Cyprus in two separate disbursements. The first disbursement of €2 billion was transferred on 13 May 2013, and the second disbursement was transferred on 26 June 2013 in an amount of around €1 billion.
Pursuing the FFA, a Memorandum of Understanding was signed between the European Commission (on behalf of the ESM and with the approval of its Board of Governors) and the Beneficiary Member State. The financial assistance provided to the Beneficiary Member State under the Financial Assistance Agreement, shall be dependent upon compliance by the Beneficiary Member State with the measures set out in the Memorandum of Understanding.
The Memorandum of Understanding (MoU) prepared by the European Commission, in liaison with the ECB, as well as the IMF, and approved by the Board of Governors on 24 April 2013, specifies the conditions to be met for the first and subsequent disbursements of ESM financial assistance, which include measures related to revenue, public expenditure, as well as pension and health care reform.
The (preliminary) Memorandum of Economic and Financial Policies (MEFP), which was approved by the Council of Ministers on 3 April 2013, outlines the economic and financial policies that the Cypriot government and the Central Bank of Cyprus will implement during the next three years to restructure Cyprus‘ financial system and ensure fiscal sustainability.
The FFA and the MoU were incorporated into the ratifying Law 1 (III) of 2013, as published in the Official Gazette of the Republic of Cyprus (Issue 4173, 30 April 2013, p. 9) and it could thus be concluded that they were considered international treaties. The relevant discussion on the MoU, the FFA and the financial assistance Cyprus applied for, took place in the House of Parliaments on 30 April 2013 (same day as the voting and publication of the ratifying Law).
The discussion as to the ratification of the relevant Bill attracted 19 (!) interventions in the plenary session, on April 30 2013 (see Question X.2 as to the debate).
Transposition national legal order
Considering the status of the financial assistance instruments, what procedure does the constitution prescribe for their adoption/transposition into the national legal order?
The MoU and the FFA were transposed into the national legal order in accordance with Article 169 (2) of the Constitution (Law 1(III) of 2013) (as opposed to governmental decree on the basis of Article 169(1) Constitution). According to the opinion of the Attorney General of the Republic of Cyprus, issued on 19 February 2013, these two agreements fall within the category of “agreement, convention or international agreement” as provided in Article 169(2) of the Constitution of the Republic of Cyprus, and they should, therefore, be ratified by Law in the House Parliaments, voted under the simple majority procedure.
What is the actual role of Parliament with regard to the adoption/transposition into the national legal order of the financial assistance instruments?
The role of the Parliament is restricted to the adoption of the relevant Laws (the MoU/FFA Law) and the other Laws that transpose the subsequent agreements and programmes with the Troika. A simple majority is required for the enactment of these Laws (see also question VIII.4).
Describe the relevant content of the financial assistance instruments.
The agreement on the macroeconomic adjustment programme opened the way for members of the euro area to decide on a package of financial assistance for Cyprus of up to €10 billion. The ESM will provide up to €9 billion, and the International Monetary Fund (IMF) is expected to contribute around €1 billion.
In its Statement of 25 March, the Eurogroup stated that financial assistance to Cyprus is in principle warranted to safeguard financial stability in Cyprus and the euro area as a whole. The Eurogroup statement summarized the pillars upon which the macroeconomic adjustment programme for Cyprus would be built:
‘Following the presentation by the Cyprus authorities of their policy plans, which were broadly welcomed by the Eurogroup, the following was agreed:
1. Laiki will be resolved immediately – with full contribution of equity shareholders, bond holders and uninsured depositors – based on a decision by the Central Bank of Cyprus, using the newly adopted Bank Resolution Framework.
2. Laiki will be split into a good bank and a bad bank. The bad bank will be run down over time.
3. The good bank will be folded into Bank of Cyprus (BoC), using the Bank Resolution Framework, after having heard the Boards of Directors of BoC and Laiki. It will take 9 bn Euros of ELA with it. Only uninsured deposits in BoC will remain frozen until recapitalisation has been effected, and may subsequently be subject to appropriate conditions.
4. The Governing Council of the ECB will provide liquidity to the BoC in line with applicable rules.
5. BoC will be recapitalised through a deposit/equity conversion of uninsured deposits with full contribution of equity shareholders and bond holders.
6. The conversion will be such that a capital ratio of 9 % is secured by the end of the programme.
7. All insured depositors in all banks will be fully protected in accordance with the relevant EU legislation.
8. The programme money (up to 10bn Euros) will not be used to recapitalise Laiki and Bank of Cyprus.
The Eurogroup is convinced that this solution is the best way forward for ensuring the overall viability and stability of the Cyprus financial system and its capability to finance the Cyprus economy.’
Based on the MoU and the FFA, on 24 April 2013 the ESM Board of Governors decided to grant, in principle, stability support to Cyprus. On 8 May 2013 the ESM Board of Directors approved the financial assistance facility agreement (FFA). According to the terms of the FFA, the first tranche of financial assistance will be provided to Cyprus in two separate disbursements. The first disbursement of €2 billion was transferred on 13 May 2013, and the second disbursement on 26 June 2013 in an amount of around €1 billion. Both disbursements will be made in cash, and will be used for the general financing needs of the public sector (roll-over of maturing debt) and fiscal needs.
“The financial assistance facility is designed to cover Cyprus’s financing needs after the inclusion of proceeds from burden-sharing measures adopted by the Cypriot government. These needs include budgetary financing, the redemption of medium and long-term debt, and the recapitalisation of financial institutions except the country’s two largest banks (Bank of Cyprus and Cyprus Popular Bank, which were subject to restructuring and resolution measures by the Cypriot government).”
“The Memorandum of Understanding (MoU) prepared by the European Commission, in liaison with the ECB, as well as the IMF, and approved by the Board of Governors on 24 April 2013, specifies the conditions to be met for the first and subsequent disbursements of ESM financial assistance, which include measures related to revenue, public expenditure, as well as pension and health care reform.”
In accordance with the decisions taken by the Eurogroup on 25 March 2013, Cyprus will receive assistance of up to €10 billion during the next three years. The ESM is expected to provide up to €9 billion and the International Monetary Fund is to contribute around €1 billion, subject to approval by its Executive Board.
The MoU together with the FFA advanced, as a condition for the release of the first tranche, the recapitalisation of the entire financial sector while accepting a closure of the Laiki bank, the implementation of the anti-money laundering framework in Cypriot financial institutions, fiscal consolidation to help bring down the Cypriot governmental budget deficit, structural reforms to restore competitiveness and macroeconomic imbalances, privatization programme.
With reference to the closure of the Laiki Bank In the case of Cyprus, for the first time in the EU, uninsured depositors became part of the bail-in. Given the large banking recapitalisation needs, as well as the acute public finance problems, it became necessary to include uninsured depositors in the bail-in in order to ensure the sustainability of public debt. Imposing losses only on shareholders and bondholders was not sufficient to finance the restructuring of Cyprus’s two largest banks (Bank of Cyprus and Laiki).
Pursuant to the MoU, Cyprus undertakes the commitment to follow the economic adjustment programme to address the short- and medium-term financial, fiscal and structural Cyprus is facing. The key programme objectives are:
A) “to restore the soundness of the Cypriot banking sector by thoroughly restructuring, resolving and downsizing financial institutions, strengthening of supervision, addressing expected capital shortfall and improving liquidity management”; 
B) “to continue the on-going process of fiscal consolidation in order to correct the excessive general government deficit, in particular through measures to reduce current primary expenditure, and maintain fiscal consolidation in the medium-term, in particular through measures to increase the efficiency of public spending within a medium-term budgetary framework, enhance revenue collection and improve the functioning of the public sector”; and
C) “to implement structural reforms to support competitiveness and sustainable and balanced growth, allowing for the unwinding of macroeconomic imbalances, in particular by reforming the wage indexation system and removing obstacles to the smooth functioning of services markets”.
So far, by reference to point A) (the restoration of the soundness of the Cypriot Banking Sector) Cyprus adopted Law 17 (I)/2013 on credit institutions’ restructuring/consolidation on 22 March 2013 which was amended by Law 38 (I)/2013 on 17 May 2013. The ‘Credit Institutions’ Restructuring/Consolidation Law’ establishes a framework for the restructuring of the banks, following the EuropeanCommission’s Consultation on a possible framework for the recovery and resolution of financial institutions other than banks.
Following this new legal framework, the Cypriot government advanced the Laiki (Popular) Bank’s consolidation and the absorption of parts of its assets and liabilities by the Bank of Cyprus, the recapitalization of the Bank of Cyprus via the conversion of debt into equity and without the use of any state aids. This resulted in a substantial curtailment of the Cypriot banking sector.
The aforementioned actions took place via a series of decrees that were issued by the Central Bank of Cyprus, it being the Consolidation Authority, in accordance with Law 17 (I)/2013:
A) Decree 93/2013 (25.03.2013) on the sale of the operations of the Bank of Cyprus Public Company Ltd;
B) Decree 94/2013 (25.03.2013) on the sale of the operations of the Cyprus Popular Bank Public Co Ltd;
C) Decree 96/2013 (26.03.2013) on the sale of the operations in Greece of the Bank of Cyprus Public Company Ltd ;
D) Decree 97/2013 (26.03.2013) on the sale of the operations in Greece of the Cyprus Popular Bank Public Co Ltd;
E) Decree 103/2013 (29.03.2013) on the rescue by own means of the Bank of Cyprus Public Company Ltd;
F) Decree 104/2013 (29.03.2013) on the sale of some operations of the Cyprus Popular Bank Co Ltd;
G) Decree 105/2013 (01.04.2013) on the sale to the United Kingdom of some operations of the Cyprus Popular Bank Public Co Ltd.
Legal actions were brought before the Supreme Court of Justice of Cyprus (revision branch) against all these Decrees by the depositors of the Laiki (Popular) Bank and the Bank of Cyprus (see Question X.9).
What legal changes, if any, had to be made to accommodate ‘troika’ review missions, post-programme surveillance missions, etc?
No legal changes have been made to accommodate the troika review missions. (regarding the debate see the arguments developed in the ESM/ financial assistance framework).
Case law international instruments
Have there been direct or indirect legal challenges against the financial assistance instruments before a national (constitutional) court?
No such legal challenge exists, although see under Question VIII.9 the High Court’s judgment with reference to the legality of the haircut of the uninsured bank account holders in Cyprus.
Case law implementing measures
Is there a (constitutional) court judgment on national policy measures adopted in relation to the Memoranda of Understanding?
Although there was no direct judgment as to the MoU, the Supreme Court of the Republic of Cyprus (revision branch) was called to decide on the constitutionality of the participation of the uninsured bank depositors in the bail-in, regarding Article 146 of the Constitution of the Republic of Cyprus.
- Supreme Court of Cyprus (revision jurisdiction/branch), Full House, 7 June 2013.
- Parties: In view of the fact that the case is based on several joined cases it is difficult to list all the names of the plaintiffs (approximately 15 pages). However all the legal actions were directed against (jointly) the Central Bank of Cyprus, the Governor of the Central Bank of Cyprus and the Minister of Finance, who were the defendants in the present case.
- Legal actions were brought before the Court by the depositors of two Banks (Laiki Bank and Bank of Cyprus) against these Banks and against the legal decrees that were issued by the Central Bank of Cyprus in accordance with Law 17 (I) /2013 (see Question X.6). The plaintiffs argued in particular that ‘by selling part of the operations of the Laiki (Popular) Bank to Greece and to the UK, the depositors of the Bank in Greece and the UK enjoy better treatment than the depositors in Cyprus, and are not, thus, affected by the consequences of the Laiki’s consolidation’.
- The Court rejected the case as inadmissible, on grounds that a) the Court has no jurisdiction to adjudicate on issues of (private) civil law, which is the law that governs the present legal dispute (the rights of the depositors derive from the contractual relationship between the Bank and the depositor), and as a result b) the plaintiffs did not have a legal interest to bring this legal action before the Court, since there are no grounds for revising the legality of the aforementioned decrees on the basis of public law.
Bond purchases ECB
Describe the political, economic and legal situation leading up to the moment where the European Central Banks started buying government bonds on the secondary market (through the Securities Markets Programme, SMP).
Not applicable to Cyprus.
Conditionality bond purchases ECB
What national policy measures have been requested by the ECB in exchange for the acquisition of government bonds on the secondary market? How have these requests been subject to debate in light of their implications for (budgetary) sovereignty, constitutional law and the budgetary process?
Not applicable to Cyprus.
What other information is relevant with regard to Cyprus and financial assistance?