But the body language and the appearance of the two Greeks tell us different volumes and both does not match the reports about the events we read in Germany. On the contrary – finance minister FinMi Varoufakis is relaxed, always keeps smiling. Prime Minister Tsipras also appears very calm and, when he speaks, attacks the EU.
This behavior is of course water on the mills for all critics. They now see all allegations of incompetence confirmed. But is this really so?
Just because the behavior of the Greek "heroes" does not conform EU expectations and todays etiquette, it does not mean, their course of actions is not well planned.
On the contrary – during the last month the EU often had to find that MiPr Tsirpas follows his own plan from the beginning, generates irritation, complies and then surprised everybody with the referendum.
What is the motivation?
Let us be the devil's advocate for the moment and assume the worst case scenario. Both of them are leftist ideologues, who will also use their population to prove their own conviction right. If this assumption is correct, it is only logical to assume that they are convinced that their outright denial of EU claims brings them an entry in the book of history: they want to demonstrate that their ideology is right and the respective position of the EU is wrong.
By the way - it does not result from this intellectual game that the EU-side is right with their negotiating position, especially if one performs an economic analyses to determine an optimal outcome. As written here, the current (none)-negotiations are not about economic issues and rationality, but pure politics.
The goals and the strategy
Based on the above assumptions the question is then, what are their goals to achieve this prove in the current situation and how (intelligent) are they pursuing it? I think the goals are clear. MiPr Tsirpas and FinMi Varoufakis want a haircut with all means. FinMi Varoufakis is convinced that this is on one hand in the best interest for the Greek population for generations. On the other hand he thinks that this path has been scientifically proven and over time it will be proven as right by a majority. This issue was the core element of the negotiation on their agenda. It was verbalized in the letters to the EU and the ESM. It was named as a crucial point in the blog post by FinMi Varoufakis explaining the final "NO" to the EU proposal.
Given that the debt relive could not be reached by the negotiation, they want to reach it on an alternative way, with actions.
In addition, both of them are convinced that it is better for Greece to stay in the EU and keep the Euro. The Grexit is also for them only the second best – meaning last - option.
This means, they are diametrically opposed in two essential aspects to the EU Position and the consequences threatened.
A unilateral haircut is easily reached by a non-payment. But it has a lot of negative consequences, among other things the Grexit and the ceasing of support from the EU for Greece. This is the thread scenario of the EU about the referendum and for the continuation of the austerity program.
Thus it is more than doubtful to reach both positions outside of negotiations with a unilateral debt cut, especially as it has been deemed impossible by politicians and the exuberant German press.
The three point masterplan by MiPr Tsirpas and FinMi Varoufakis against the EU
Surprise, it could be – with the following plan. The plan contains mainly three elements: Haircut, the stay in the Euro zone and the re-activation of the Greek banks by the ELA loans.
The instrument thereby is the status of uncertainty about the next steps and the EU's legitimate concerns about a Grexit as well the situation of the Greek population.
On this background many options are available to implement their own position and goals against the EU. Thus let us examine the steps and their various aspects.
The first step in the plan – the bankruptcy of the state and the haircut.
The Greek state will go into insolvency, whether by negotiation or by deeds. Thus, the declared goal is achieved, a haircut will take place. Of course, afterwards there will be long negotiations with creditors and they will pay something back. But the debt relief for the most part is in place.
It is crucial that the external creditors confirm this state of the debt situation. Therewith, so goes presumably the calculus, they also have to recognize the non-viability of the old debt levels during debt restructuring negotiations. As a consequence the political action to reach this situation will receive a later legitimacy. This is important as the various breaches of contracts are a fact.
This concession towards debt is a point the EU until today did not want to give in on, because it is against the official negotiating line of austerity and money in return for imposed reforms as condition. It would also strongly weaken the position with respect to reforms towards other EU members also in a "rescue" program. One has also to considere the enourmous costs of a Grexit and the risk of contagion as estimated here. To say it in other words: The EU is on the risk of long term loosing its government bond market. It's politicians did not get it yet, but maybe Varoufakis.
Thus they took action. The first step has already been concluded with the non-payment of the rate payable to the IMF. The reported admission of the IMF that a debt restructuring is necessary, is therefore already an important points win. It is no surprise that reports say the EU did want to push its publication back as it dramatically weakened the position of the rest of the Europeans who have political excluded a haircut. If the creditors still want to have the money in this current situation back, they have to recognize this proposition.
At the same time it created the needed undefined state of uncertainty for Greece. The explanation is as follows. Even when a credit rate is not paid, a state is not immediately bankrupt. It is also interesting to observe the hesitating and mild reaction of the ESFS. Also, Greek remains a part of the Euro zone with claims to all (rescue) mechanism of it.
This means, every steps from the EU-side to negate them, can be interpreted as a political act against the Greek position, even when there are no active negotiations, but hopes they will resume soon.
Another chess move at this point is now to try a division of the creditors in bad political debts and creditors – the institutions, and in good creditors, which could be the private investors in this case.
We stay in the Euro zone and in the EU –the second step
Thus, the second part of the plan must be implemented. The Greek government now has to do everything to keep Greece in the Euro zone, because this is the promise by MiPr Tsirpas and FinMi Varoufakis while contradicting the negotiation arguments from the EU. And it allows the access to the ECB facilities.
To understand whether this scheme is ever possible, the easiest way is to clarify how and if an exclusion of a country could happen:
The first possibility would be an exclusion by the other EU member states. But this seems legally impossible, especially since no one wants to take the responsibility for this step and its consequences for the EU. This argument is cited in an article by "die Welt" but is also the tenor from the legal study by Phoebus Athanassiou, Legal Counsel from European Central Bank, who wrote in his abstract "a Member State's expulsion from the EU or EMU, would be legally next to impossible." In addition this discussion needs unanimous assent.
The second possibility is a kind of automatism discussed and cited by the Grexit proponents repeatedly. The process is in general as follows: After the bankruptcy of the Greek state, the banks go insolvent. The Greek government needs money, but has no more access to fresh Euros, which in consequence makes it necessary to introduce their own currency in order to pay. This would constitute the moment the Grexit happens on initiative by Greece e.g. and consent of the EU using a legal second. This is exactly the course of events at the moment.
But what happens, if the Greek government does not follow to route to the Grexit and remains in the state of suspense as long as possible? Because factually, after the referendum is before the referendum.
At this point the pressure to move is back on the EU. Will they trigger a Grexit? Probably not. Rather it is valid to assume that their next step is to wait. They think that the most likely result of the cash needs by the Greek government with all the consequences for the Greek population will translate in a relenting or to a political change. Thus, they will count on new elections, after which, towards a new government - and in face of the situation in Greece - it will be possible to force through their own negotiating positions.
So, is there something that FinMi Varoufakis and MiPr Tsirpas could do against this at least trying to shift the blame for the situation towards the EU?
ELA, ECB and achievement of the functioning of Greek banks.
That would be possible in this essay's intellectual game with the following steps, the third part of the plan:
As there is no exit by Greece from the Euro zone, the ECB will have to ensure the emergency supply with Euros. Any deviation by the ECB form the committed neutrality would be a disaster for the central bank, because one could argue that other EU members would one time have to fear the same. The danger stemming from the consequences of an intervention is properly so large that the ECB even in its role as bank supervisor of the EU will not take against the Greek banks.
Thus, from the perspective of a Greek politician, on this axis it is of primary importance to freeze the situation - contrary to the debt situation - even if it results into major problems for the population in Greece. This was achieved by the capital controls and bank holidays. Although it violates EU law of free movement of capital, the measure would be in retrospective justified as a temporary emergency measure. It is likely to assume that the payout limit has been calculated prior, such that maintain by Greek banks can maintain the cash supply nominally. Nominal is an important keyword, because nominally neither the Greek government nor the banks are at the moment bankrupt, via the failing government bonds as a result form the not paid IMF rate.
This is due to the fact that in the current situation the uncertainty and hope about continued negotiations play out.
Thus, the ECB remains under pressure to act and thereby further increase the ELA loans. And the announcement of the insolvency of Greek banks is no option for political reasons.
Any refusal to do so, provide arguments for MiPr Tsirpas and FinMi Varoufakis to demonstrate the EU and its institutions in fact work against the Greek government and the Greek population.
The ECB has mastered this standoff situation, by providing the ELA loans not extending the limit and not calling them in. FinMI Varoufakis already announced legal actions against the ECB because they limited the ELA loans at 28th of June. I will pick up the point later, below.
The Payment system
Now the payment system has to be maintained, even if no fresh Euro are available. The Greek government would execute payments obligations with IOY denominated in Euro. They can circulate in parallel with the Euro and are a means of exchange as they are tradable. This most likely with a steep discount, but they would still be denominated in Euros.
This works even if only for a short time, especially as capital controls and the withdrawals limits are already in place.
The key point is now the banking system. The banking system has to become functional again as soon as possible, but understand the notion of functional in emergency situations. This sounds almost impossible based on the reports from Greece, but only almost. To explain this a conceptual interim step has to be introduced in the though process. This is the ability to discriminate among the debtors.
The separation of the creditors
Now follows the next step within the implementation of the plan. The Greek debt in 2015 is to a very large part in institutional – public sector hands. Therefore the discrimination among creditors compared to 2012 is much easier, because they are known. This is a further violation of the general rules, but it is conceivable. Also Iceland has given precedents to the domestic deposits over other creditors within the EEA.
I think they will try to reach a kind of reversal of the hierarchy of creditors (e.g. senior role of IMF) and in addition try to split them (IMF payout by EU). If this is successful – meaning to only impose the institutions a haircut – it could be credibly argued that the remaining government titles held by the Greek banks can be served and most important are sustainable long term. Remind the keyword nominally. For this paragraph the fact it is interesting that a voluntary renunciation has been achieved even in 2012 following a similar path. As result not even the events in 2012 triggered an official credit default swap event.
This is obviously a huge step, because it entails to turn around the entire sequence of the creditors especially the position of the IMF. The consequences on legal certainty for bondholders and creditors for the future takes another major hit. But why not try it, when you want to force the ideological opponent to fall to the knees?
Greece announcement today that they have served the interest payment of the private creditor's fits well in this argumentation.
And is it really so hard to image, that after the haircut they will have the willpower to collect taxes, because they want to have money for the own politics? In other words, maybe it is possible to keep the banks afloat with own – suddenly collected tax – sources. It would allow Greek politicians to claim the first reform success for them - after the haircut, always assuming one has planned in advance accordingly.
After this intermediate step, it is now clear, how the bank could remain functional while negotiations are resumed and one tries to impose the own condition onto the EU.
The ELA loans as bargaining chip - steps to functional banks
The key for understanding this step is as written above that the banks can maintain their business with the ELA loans from the ECB. The ECB is officially obligated to neutrality. As long as the Greek state is not officially insolvent, with immediate effects on the banks' balance sheet, and does not exit the Euro, the ECB is obliged to give-in and do its task by providing them.
So what is after the referendum? One can expect that Greece will demand support by the ECB as member of the EU and within the mandate of the ECB loud and clear.
Whether the ECB would do this stands on another sheet of paper, but it is definitely under pressure.
It is even more under pressure as at this moment of time an unordered Gexit will have effects beyond the fantasy of politicians claiming that "a contagion is under control". Kyle Bass already said in Jan 2015 they are not. Add around 800bn of recapitalization need of the EU banking system and take a look on calculating the costs of a Grexit and think deeply about off-balance sheet liabilities popping up. I think Varoufakis knows that.
And, after all Greek surprises are not infrequent, they could draw an "ace" up their sleeve which is explained briefly below.
The founding of a new bank
Let us assume Greece has secretly accumulated enough reserves in Euro e.g. with the non-payment of the IMF-Tranche. They now will be used to start up a new bank with some other Greek institutions. It would have enough capital and being a financial institute of the Euro be immediately subject to ECB – in this case – obligations with respect to liquidity. As in Iceland – one would transfer all deposits and good credit to it, while the bad loans remain in the old banks as bad bank.
As result a solvent bank would be available that could give new loans to the Greek government immediately. A law suit by the creditors about the use of state funds for a new bank is taken into account or one made provisions to comply with EU law. For example one could announce the immediate privatization which in turn generates new income.
At the same time a single bad bank is created, which has not been implemented in Iceland and delayed the work out of bad loans for a long time.
The bad bank, besides tax collecting efforts, would already be the first step towards reforms, which MiPr Tsirpas and FinMi Varoufakis want/need to do anyway. And it would probably a very popular measure.
Restoring banks with bail-ins
As news about emergency banking meetings in Greece come in I add another option. Also a bail in of Greek dopositors is a possible action. There is no possibility to access the legal aspects. With pure economics a bail in of depositors could do the job and increase ELA as nominally balance sheets of banks are restored
In addition all kind of "unorthodox" methods are possible including printing of 20€ notes. Read here: http://www.telegraph.co.uk/finance/economics/11719688/Defiant-Greeks-reject-EU-demands-as-Syriza-readies-IOU-currency.html
What is the reaction of the ECB and what are the consequences each reaction?
So, when the ECB fulfills its tasks and increases the ELA loans further there is a big chance the Greek banks would be stabilized or remain stable. How I said, purely nominal, that is enough.
With the capital controls in place the argument is off the table that ELA loans are allowing the Greeks to take Euros out of the country what is also not in the interest of the Greek government.
But what is the situation if the ECB does not do it?
With regards to this the threat of a potential lawsuit against the ECB is is/has been introduced. FinMi Varoufakis announced this step already. Following the announcement the plan has been judged e.g. in an article from the newspaper "WELT" without any real chance, but the article is of course not a legal opinion.
Thus the validity depends on, whether the threat is dangerous and effective enough, which will now be considered.
Economic backgrounds about a sue against the ECB
What is the result of a brief examination of this option and what munition FinMi Varoufakis holds in his hands? First the economic side. In a very interesting paper Prof. Wyplosz on 29.06.2015 denounced already the critical role of the ECB and the dubious decision to cup the ELA-loans. He wrote:
"Why did the ECB freeze its Emergency Liquidity Assistance (ELA) to Greece? The ECB will undoubtedly come up with all sorts of legal justifications. Whether true or not, this will not change the outcome.
If the ECB is truly legally bound to stop ELA, this means that the Eurozone architecture is deeply flawed.
If not, the ECB will have made a political decision of historical importance.
Either way, this is a disastrous step.
Whether it likes it or not, every central bank is a lender of last resort to commercial banks. By not keeping the Greek banking system afloat, the ECB is failing on a core responsibility."
But again this is not a legal opinion as Prof. Wyplosz is an economist. But he sticks the finger splendidly into the wound.
Another indication delivers the director of Economic Studies Eric Dor in a paper from April 2015.
There he describes to what extend the ELA funding could be driven:
„Under the current haircut rates the Eurosystem funding of Greek banks could still be increase by at least 50 billion euros."
Then there is the following statement:
"In addition, the liquidity problems of Greece are temporary as explained above. It is thus surprising that the Eurozone governments and the ECB put the whole exposure of their citizens to Greece at risk just for this issue [the 7.2 bn of the second package]."
Of course it is to consider that this statement has limits, because the working paper references the April 2015 situation and was a recommendation for the then ongoing negotiations.
Nevertheless – together it seems there are starting points indicating a credible lawsuit threat.
In order to provide the right perspective on the dimension of the statement of the two papers: As soon as the ECB is subject to suspicion of not acting independent, it is done as an institution and therefore the Euro. The behavior of the ECB will be watched with Argus eyes from all countries and all commercial banks and investors. The threat is extremely effective as all financial market participants worldwide will follow the situation closely and primarily they will consider the economic aspect of ECB actions (on them).
A first estimate of legal means agains the ECB/EU
After the economic analysis, a legal assessment follows. Hardly any documents or statements are available for the purpose and a request to the ECB for a comment remained unanswered. But an initial assessment was provided by the lawyer Carl Garner, who has a lot of EU law experience and wrote on his blog with respect to the question of a lawsuit:
"So there are two types of legal challenge open to Greece: against the EBC's restriction or withdrawal of ELA, under the main TFEU Treaty; and an ESM Treaty challenge to the refusal of (or refusal to consider) an ESM loan."
Even if he thinks that chances of a success are pretty low, it is a possibility and the thread is not taken out of thin air. He also points at a second option for legal actions by the Greek government, which this essay does not consider. A law suit based on the submitted ESM application.
That explains very well, why the Greek PM Tsipras suddenly changed his mind las week and was fast to submit an ESM proposal and reinforces the outlined points of a plan above.
A third lawsuit opportunity to win more publicity?
Also a third possibility might be thinkable. The argument derives from the author of the named article in "die WELT". As he writes assessing the success of an ECB case, Greece could hardly complain to have been treated worse than Cyprus.
That may be true, but the key word "equal treatment" or respectively "discrimination" provides a good starting point. Even Prof. Sinn expressed in an interview with DW the belief that the ELAs for the Greek banks are anticompetitive, because those are long time insolvent, thus illegal.
That sounds not good for the Greek plaintiff. But the decisive point in this case is not the plaintiff's opinion that the Greeks had a competitive disadvantage, but the intention to complain to a court in order to weaken the enemy.
This is for the fact that the sphere of interests touched is different from the sphere - also named in "the Welt" article as a reason for no success - with reference to the ECJ decision with regards to the government debt purchasing program. It means that while such a program easily falls under the wide definition of the ECB mandate and means for general interest, on the contrary under a case based on competitive law one might find good arguments to discuss the question in depth in front of a court as tangible individual business interest are touched.
In practice this means in my eyes to check all internal rating models of the ECB for government debt, their risk assessments base on that and of course all E-mail traffic – even with governments – and this probably to a large extend in in public.
The possibility of legal actions based on the legal question in this paragraph could not be clarified yet. When possible, the result is supplemented.
What should be the effect by this action mentioned or by the first or by the second?
I think the dimension of this is even bigger: This is for the fact that it is very likely that FinMi Varoufakis and MiPr Tsirpas know operations that are born out of the necessities and pressing situations of the final crisis.
Now imagine a yearlong process in which the ECB has to justify each decision towards each bank based on the principal of equal treatment and competition.
For years the European public would be provided with the inner works of the EU/ECB Euro rescue machine room. Complex situation, complex nexuses, complex decisions with astronomical sums – all elaborated by a media landscape that often does not have the time to understand the mindset of the market, the economists und than also of politicians. And the change is big that many small banalities of the politics that have taken place will be demonstrated.
It is also to ask if it might not turn out that one or the other European bank is identified that has been supplied with (ELA) liquidity during the heights of the financial crisis interpreting the mandate of ECB more flexible compared to other situations.
Thus the final conclusion is that alone the threat of a litigation could very well result into the ECB continuing the ELA loan – even if only on low flame – in order to allow for further negotiations or even because "internal" pressure would be applied.
In sum, it can be said the threat of a lawsuit could develop a very large effect on the EU side.
Time is running - what would be the result of a law suit?
With regards to the legal action one point has to be further considered. Because the action has not only potential for threat. It also has to fit in the supposed master plan. In one aspect the author of "die WELT" is right. The mills of the European Court of Justice should grind so slowly that doesn't help the Greeks bank in this case. Thus the plan would not have worked out fully.
So what if the tread does not have an effect?
For the answer the reference level of the players concerning this action item with respect to their goals and their time period have to be considered. What advantage holds a trial for the two politicians?
Very simple! At best, they have won the case. Just image, the ECB would have to pay compensation to Greece?
But even in case they lose, there is every chance that enough doubts about the decision of the ECB stick to create the desired political legend. Just to name another absurd scenario. What if a process indicates that Greek banks should have been foreclosed month ago as default risk and debt levels of the Greek government internally have been deemed unsustainable long time ago? Well, it sounds like a perfect confirmation of all arguments for the debt cut.
Because within their own belief system and selves set goals, the Greek players themselves announced they will to confront the Euro savior with their own absurdity. So, why not with an absurd claim about Greek deprivation? This will not be won, but their profile might win a lot in the course of the process.
In the sense, a long process is bad for the bank with liquid problems, but very good for politicians to make history. There you land also posthumously.
At this point the question arises, what role the referendum plays in this plan. Why ask the people and risk a "YES" vote, meaning to loose political power, if the plan is so good?
The Referendum and the plan
Two considerations help. First, the classification on which proposal the referendum's participants vote. The major complaint from the EU side is that the people are asked to vote on a proposal that does not exist as the EU withdraw from negotiations. That may be true from the EU perspective. But MiPr Tsirpas requires only the approval of his proposal: yes to reforms + debt cut.
Accordingly, one finds the action plan from the EU and from Juncker as well as the debt sustainability on the website. This is consistent with the considerations of this essay.
Now we need to consider the outcomes.
What happens in case of a no vote?
If the Greek people decide with "NO", the political situation for MiPr Tsirpas is backed. He now might make even stronger claims against the EU, while it has to explain why the vote of the Greeks should not matter. Of course, he will be back immediately to the negotiation table. He will approve the reform, but with request to open the ELA loans again immediately. The game continues and the haircut is on the table.
Would a YES in the referendum impact the plan?
What is the impact on the presumed plan if the people decide to vote "Yes", what a lot of observers consider to be possible? I think it would not change much.
First, MiPr Tsirpas will be simply moving on. He will cite that in the Referendum the reforms AND the haircut were confirmed. He already declared that he wants to implement the reforms. How long he can hold this position is not clear. Probably not long.
But - the consequence of the Yes are more important for the other side and will play the two actors in their hands. Should the ELA credit facility by the ECB not be widened immediately? Would not the EU pressure on it for political reasons as one hopes to negotiate with the Greeks about reforms again which is despite the situation in Greece very important for the political narrative?
With a "Yes" vote MiPr Tsirpas of course sooner or later has to resign or call for new elections. But in both variants, these processes need time and this makes the haircut irreversible on each path. This would not even change with immediate new elections.
In sum: the Referendum is a means to buy time. Time to make the haircut most likely and irreversible. This is for the fact that no matter what the outcome of the referendum is: no party can start to negotiate on conditions prior to the announcement.
From the perspective of the two players, they generated irreversible facts and the possibility of reversal and the unilateral haircut is dwindling.
Chances and risks of the plan
Should this presumed plan of the two politicians succeed it would be an incredible coup. A concession by the EU to all major points is the result and most observers would have been proven wrong. After all, a haircut prepares the ground for reforms and fiscal measures. The population would have suffered capital controls, but – if one might write so in face of the situation, but that's cold politics – survived the situation more or less well.
But, what if the plan doesn't work out?
That is a good question. The major risk is that the ELA-part does not work out and the banks go bankrupt. The final costs for that depend on the workout. But it is important to consider the assessment of this downside. If you are convinced they might go down anyway as many EU observers are, a Greek politician might have come to the same conclusion, risk it and hope that history shows that case for a debt cut and applauds the courage to at least have tried it. The costs are left to the population.
But it only means that your time is running out. You could still go back to the negotiation table. Will you get a deal? I think so, as the Grexit risks for Europe are much higher. Will the deal be much worse? Probably not – and it is likely that debt cut, or debt restructuring is part of it. And – such is the asymmetry of the situation, you can still do the Grexit – even later on.
This essay presents a thought experiment about the hypothetically objectives, plans and goals of the Greek government.
As result it becomes clear that - in the case the though play was right - the two Greek protagonists are extremely gifted politicians and negotiators. They were underestimated by the EU at long time and they will not lose the control about the situation even with the referendum.
If the succeed? History will tell ...
Yanis Varoufakis: "Why we recommend a no in the referendum in 6 short bullet points"
Prof. Charles Wyplosz: "Grexit: The staggering cost of central bank dependence"
Phoebus Athanassiou, ECB Legal Counsel: "WITHDRAWAL AND EXPULSION FROM THE EU AND EMU SOME REFLECTIONS"
Eric Dor, "Leaving the euro zone: a user's guide"
Eric Dor: "Will a Collapse of Greek Banks Kick the Country Out of the Euro Zone?"
Die Drohungen des Draufgaengers sind nur heisse Luft
Could Greece take Europe to court?