Published on 4 October 2021
FOURTH SECTION
Application no. 4558/20
BCR BANCA PENTRU LOCUINȚE S.A.
against Romania
lodged on 16 January 2020
communicated on 15 September 2021
SUBJECT MATTER OF THE CASE
The applicant company is a legal entity registered as a “housing bank”, a special banking institution with the main object of activity “saving and lending in a collective system for residential area”.
The application concerns the applicant company’s allegations that the High Court of Cassation and Justice’s decision of 21 June 2019 (notified on 18 July 2020), and its interpretation of the banking law and of the corresponding implementing Rules, by which it had upheld the sanctions imposed onto the applicant company by the Court of Audit (Curtea de Conturi), was unforeseeable and lacked the required clarity, being therefore arbitrary and in breach of the legal certainty principle. Moreover, the requirement imposed on by such interpretation, that the clients of the applicant company should have complied with certain age-limits (namely, over 18 and under 65 years), was discriminatory and not provided for by the law.
The ensuing interference with the applicant company’s property rights had a direct impact in respect of more than 400,000 ongoing contracts already concluded by the applicant company with its clients, the damage thus created being, according to the applicant company, of more than 80 million euros. Such allegedly unlawful interference determined the blockage of the applicant company’s activities. Moreover, according to the impugned domestic decision, the applicant company was bound, subject to criminal sanctions, to institute proceedings against its former clients, seeking to obtain reimbursement of the amounts paid to them as State premiums (a specific form of State aid), which had been allegedly undue.
Relying on Article 6 of the Convention, Article 1 of Protocol No. 1 and Article 1 of Protocol No. 12 to the Convention, the applicant company complains about the above-indicated allegedly unlawful interpretation of the relevant domestic law, which had disproportionate and discriminatory effects on its rights to conclude contracts with its clients.
QUESTIONS TO THE PARTIES
1. Has there been an interference with the applicant company’s peaceful enjoyment of possessions, within the meaning of Article 1 of Protocol No. 1, on account of the High Court of Cassation and Justice’s interpretation of the relevant banking law provisions and implementing rules, as set out in the decision of 21 June 2019?
If so, was that interference in accordance with the conditions provided for by the law? In particular, has the relevant domestic law been sufficiently accessible, precise and foreseeable for the applicant company?
In the affirmative, did that interference impose an excessive individual burden on the applicant company (see Immobiliare Saffi v. Italy, [GC], no. 22774/93, § 59, ECHR 1999-V)?
2. In the light of the applicant company’s allegation that the domestic courts applied differently the relevant law, did the applicant company have a fair hearing in the determination of its civil rights and obligations, in accordance with Article 6 § 1 of the Convention? In particular, was the principle of legal certainty respected by the High Court of Cassation and Justice’s decision of 21 June 2019?
3. Are the applicant company’s complaints under Article 1 of Protocol No. 12 compatible with the provisions of the Convention, ratione personae, in so far as they relate to the alleged discriminatory treatment it must impose on its clients on the grounds of their age, treatment which has a direct and detrimental impact on its rights protected by Article 1 of Protocol No. 1?
In the affirmative, has the applicant company suffered discrimination in breach of Article 1 of Protocol No. 12?
Full & Egal Universal Law Academy