As we mentioned before, the Greek debt crisis has reached the Federal Supreme Court (Bundesgerichtshof). In a decision today, the court ruled that claims brought by German holders of Greek bonds in German courts against the Hellenic Republic were inadmissible. The bondholders had sued for damages they suffered as a result of the Greek debt restructuring.
The bonds that the claimants had acquired – in Germany and through German Banks where governed by Greek law. They did not contain collective action clauses. This notwithstanding, the terms of the bonds were subsequently amended by a majority vote of the bondholders and these amendments were declared binding upon all bondholders by laws passed by the Greek parliament. The measures that were implemented contained both a 53.5% haircut and an extension of the duration of the bonds.
Today, the Federal Supreme Court dismissed the actions as inadmissible (unzulässig). The Hellenic Republic was protected by the principle of sovereign immunity against these lawsuits in Germany. The international public law concept of sovereign immunity is recognized in German law (Sec. 20 para. 2 Courts Constitution Act; Art. 25 Basic Law; GG)
Raising capital by issuing bonds, according to the court, is per se not itself an sovereign act (nicht-hoheitliches Handeln; acta iure gestionis). However, whether the Hellenic Republic was protected by sovereign immunity was not only determined by the legal nature of the relationship between the parties, but also by the nature of the acts of state which are in dispute between the parties.
Accordingly, in the case at hand, it is not the issuance of bonds or the contractual relationship between the bondholders and Greece which is relevant for decision on immunity, but the legal nature of the acts that Greece took in order to restructure its debt. In particular, the dispute between the parties centred on the validity of the Greek law 4050/2012 of February 23, 2012 and the decisions of the Greek Council of Ministers dated March 9, 2012. These were the legal acts that declared the majority vote of the bondholders binding on all bondholders, and they clearly were sovereign acts (acta iure imperii).
In the words of the court, the very idea behind the concept of sovereign immunity is to prevent one state from ruling on the legality of sovereign acts of another state (“Der Grundsatz der Staatenimmunität will gerade Entscheidungen eines Staates über die Rechtmäßigkeit der hier maßgeblichen hoheitlichen Maßnahmen eines anderen Staates verhindern.”). But this is exactly what the German courts would have to do, were they to decide these disputes on the merits.
Today’s decision is in line with the court’s earlier case law. It confirms the vast majority of the lower court decisions, and is pretty much as (I had) expected.
Federal Supreme Court, judgment dated March 8, 2016, file no. VI ZR 516/14.