Last Updated on October 3, 2020 by LawEuro
FOURTH SECTION
DECISION
Application no. 27189/17
Gheorghe BRĂDĂȚEANU and Others
against Romania
The European Court of Human Rights (Fourth Section), sitting on 11 February 2020 as a Committee composed of:
Faris Vehabović, President,
Iulia Antoanella Motoc,
Carlo Ranzoni, judges,
and Ilse Freiwirth, Deputy Section Registrar,
Having regard to the above application lodged on 31 March 2017,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants,
Having deliberated, decides as follows:
THE FACTS
1. A list of the applicants is set out in the appendix. All applicants are Romanian nationals, one of whom having also the German nationality; they were all represented before the Court by Ms Diana-Elena Dragomir, a lawyer practising in Bucharest.
2. The Romanian Government (“the Government”) were represented by their Agent, most recently Ms Simona-Maya Teodoroiu, from the Ministry of Foreign Affairs. The German Government did not make use of their right to intervene in the proceedings (Article 36 § 1 of the Convention and Rule 44 § 1 of the Rules of Court).
3. Third-party comments were received from the Romanian Commercial Bank (hereinafter “the Bank”), which had been given leave by the President to intervene in the written procedure (Article 36 § 2 of the Convention and Rule 44 § 3 of the Rules of Court).
A. The circumstances of the case
4. The facts of the case, as submitted by the parties, may be summarised as follows.
5. Between 2007 and 2008 the applicants concluded loan contracts in a foreign currency, the euro, with the Bank. The contracts were concluded with a view to acquiring new immovable property or meeting personal needs.
6. On 17 December 2010 the applicants, together with approximately 800 other clients of the Bank, hired the services of a lawyer and initiated proceedings against the Bank on the grounds that the loan contracts contained unfair terms (clauze abuzive).
7. In particular, the claimants asked the courts to assess the unfair character of certain terms of the loan contracts, to consequently invalidate them and to modify the contracts by deleting the said terms or, where applicable, by replacing them with new fair terms. They also requested that reimbursement plans be issued in accordance with the new terms so that the amounts already paid based on the terms declared as unfair could be reimbursed to them.
8. The terms contested by the claimants referred specifically to: the method used for calculating interest, in so far as it was based on a fixed spread as well as on a reference rate, displayed at the Bank’s agencies; any other term that allowed the Bank to unilaterally alter the interest rate; terms providing for the payment of a fee for the granting of a loan, payable at once and calculated in relation to the initial value of the loan; terms relating to the monthly loan management fee; terms concerning the payment of a fee for risk follow-up, a fee which was calculated in relation to the initial value of the loan; and finally, the acceleration clause, allowing the bank to demand repayment of the outstanding loan if the value of the securities to the loan fell below the value of the remaining loan.
9. The applicants contended that having regard to the large number of claimants and to the potential procedural difficulties that would have ensued, their legal representative had decided to create two groups of claimants and to lodge separately two identical actions on behalf of Group 1 and of Group 2, respectively, the applicants being part of the latter group. Nevertheless, the arguments brought before the courts were identical, as the nature and substance of the two cases were the same and the impugned contracts were standardised and therefore contained identical terms.
1. Proceedings in respect of Group 2 (including the applicants)
10. Following a first round of proceedings, on 12 June 2014 the High Court of Cassation and Justice (hereinafter “the High Court”) quashed the previous judgment and remitted the case to the Bucharest Court of Appeal for retrial. The High Court considered that the courts had failed to carry out an individual assessment of each of the contractual terms, and had based their decision on general conclusions. Furthermore, their assessment needed to be made in the context of the lex specialia, namely the legislation for the protection of consumers, which presupposed the existence of an imbalance between traders and consumers.
(a) Appeal proceedings before the Bucharest Court of Appeal
11. Following a retrial, on 18 December 2014 the Bucharest Court of Appeal, by a majority, dismissed the applicants’ claims. The court accepted that the loan contracts had not been negotiated and that, in view of their standardised form, the applicants had not had the opportunity to ask for any amendment of the terms. Nevertheless, it held that the impugned terms were not unfair.
12. The court started by referring to the principled approach set out by the Court of Justice of the European Union (“the CJEU”) in its case-law on Articles 3 and 4 of Directive 93/13/EEC. The courts were thus authorised to review the unfairness of contractual terms relating to the definition of the main subject matter of a contract or the fairness of the costs and repayments, on the one hand, as against the services or goods to be supplied in exchange, on the other hand, even where those terms were drafted in plain, intelligible language. The court continued with an in concreto analysis of each of the terms contested by the applicants (see paragraph 8 above), as follows.
13. First, with regard to the method of calculating the interest rate, the court considered that it was sufficiently foreseeable, as it was based on objective indicators which were mandatory for the Bank. Moreover, the method had been made clear to the applicants when they had concluded the contracts, and they had accepted it at the time without any objection or need for further information.
14. The court also held that the applicable legislation did not allow the judge to alter the content of a contract, even if certain terms were found to be unfair. The only option was to terminate the contract, if so requested by the injured party.
15. Secondly, concerning the method for calculating the fee for granting the loan, the court held that the Bank had had to choose between charging a fixed sum or a percentage of the loan, either option being lawful at the time when the contract had been concluded. The fact that such a fee had become unlawful at a later date (namely in 2010, when Government Emergency Ordinance (GEO) no. 50/2010 had come into force, see paragraph 35 below) did not by itself determine its unfairness.
16. Thirdly, with regard to the loan management fee, the court concluded that the related terms had been drafted in plain intelligible language and the fee itself was justified by the services provided by the Bank. For the same reasons, the court considered that the terms providing for the risk follow-up fee were also fair and that there was no imbalance between the rights and the obligations of the parties. Even if those fees were calculated on the basis of the initial value of the loan, and not on the basis of the amount left to be paid, this did not mean that the terms were unfair, as the related services provided by the Bank were the same, irrespective of the amount still owed.
17. Lastly, in relation to the acceleration clause, the court considered that it was justified for the Bank to expect the debtor to secure the loan at all times and to maintain the value of such securities so as to minimise any risk of loss. The clause was therefore also fair, in the court’s view.
(b) Appeal on points of law before the High Court
18. On 23 March 2016 the High Court upheld the appellate court’s conclusions. The applicants were given notice of the judgment on 3 October 2016.
19. The High Court dismissed the applicants’ claims in their entirety and held essentially that the conditions set out in Article 4 of Law no. 193/2000 (see paragraph 34 below), allowing a court to declare the terms of a contract unfair, had not been fulfilled in the case.
20. The court held that the presumption of the validity of the contractual terms had not been overturned; the impugned contractual terms were sufficiently clear, intelligible and unequivocal in nature, and did not create any imbalance between the rights and obligations of the parties. Those terms had been explained and accepted as correct, complete and transparent at the time the contracts had been concluded, and the applicants should and could have understood their meaning and consequences. Both before and after the conclusion of the contracts, the applicants had benefited from a reflection period, when they could have expressed their doubts or dissatisfaction. None of them had used that opportunity, nor had they retracted their consent within the statutory deadline.
21. Moreover, the High Court could not substitute itself for the parties by amending the terms of the contracts, as such interference on the part of the court would be manifestly unlawful and in breach of the freedom‑of‑contract principle.
22. The court concluded that by lodging an action in such a large number (409 credit agreements to be assessed within one set of proceedings), the claimants had sought to exert pressure on the judicial authority so as to obtain a favourable general outcome to the detriment of rigorous legal reasoning.
2. Proceedings in respect of Group 1 (the comparison group)
23. On 10 June 2014 the High Court took a similar course of action to that taken in respect of Group 2 on 12 June 2014. It remitted the case to the Bucharest Court of Appeal for retrial, on similar grounds to those relevant for Group 2 (see paragraph 10 above).
(a) Appeal proceedings before the Bucharest Court of Appeal
24. On 28 January 2015 the Bucharest Court of Appeal, by a majority, partly allowed the claimants’ action.
25. The court considered at the outset that the Bank had not adduced sufficient evidence to prove that the contracts had been negotiated with the claimants, as required by Law no. 193/2000 (see paragraph 34 below).
26. The court further held that the fee for granting the loan was unlawful, in as much as it was accompanied by a loan file analysis fee. The court considered that the two fees essentially concerned the same services provided by the Bank, namely the examination of all documents filed by the consumer seeking to obtain a specific loan contract.
27. The court upheld the first-instance court’s decision of 5 March 2012 (given before retrial) in which the loan management fee and the risk follow‑up fee had been declared unlawful. It held that the terms in themselves were not abusive, but the fact that the fees were linked to the initial value of the loan, and not to the remaining sum to be paid, meant that there was a significant imbalance between the rights and the obligations of the parties.
28. The court also held that the amounts paid by the claimants under the terms found as unfair had to be reimbursed to them.
29. The court dismissed the remainder of the claims, namely concerning the method of calculating the interest rate; the acceleration clause; and the fee for granting the loan, if unaccompanied by a fee for analysing the loan request, for similar reasons as those set out above in respect of Group 2 (see paragraphs 13, 15 and 17 above).
(b) Appeal on points of law proceedings before the High Court
30. By a final decision of 20 October 2015, the High Court, in a different composition from the panel that had rendered the judgment in the case of Group 2 claimants (see paragraphs 18-22 above), allowed the appeal on points of law lodged by the claimants of Group 1.
31. The court found that the term referring to the interest rate was unfair, in as much as it was based on a reference rate or was otherwise amenable to unilateral amendment by the Bank. The court considered that the impugned term had not been drafted in plain and intelligible language, mainly because the criteria for calculating the interest rate were not clear; the lack of clarity meant that each party had a different understanding of the basis for determining the interest rate. Also, the term had not been negotiated, nor had the Bank properly informed the claimants about its consequences. Those elements converged to overturn the presumption that the Bank had acted in good faith at the time the contracts had been concluded.
Consequently, the court held the Bank liable to amend the contracts accordingly and to modify the interest rate.
32. In respect of an appeal lodged by three of the claimants of Group 1 concerning the acceleration clause (see paragraph 8 above), the court held that the clause was also unfair and thus needed to be eliminated from the contract. It considered that the clause had not been negotiated and created a significant imbalance between the rights and obligations of the parties, because it placed too heavy a burden on the claimants, whereas the Bank was trying to avoid any potential risk.
33. The High Court upheld the remainder of the appellate court’s findings.
B. Relevant law and practice
1. Domestic law
34. Law no. 193/2000 on unfair terms in contracts concluded between traders and consumers, republished on 19 April 2008, was intended to transpose European Directive 93/13/EEC (on unfair terms in consumer contracts) into national law. Article 4 of the law states as follows:
“1. A contractual term which has not been individually negotiated shall be regarded as unfair if, by itself or in conjunction with other terms and contrary to the requirement of good faith, it causes a significant imbalance in the parties’ rights and obligations arising under the contract, to the detriment of the consumer.
2. A term shall always be regarded as not individually negotiated where it has been drafted in advance and the consumer has therefore not been able to influence the substance of the term, particularly in the context of a pre-formulated standard contract or of the general sale conditions practised on the market in relation to that good or service.
3. The fact that certain aspects of a term or one specific term have been individually negotiated shall not exclude the application of this Article to the rest of a contract if an overall assessment of the contract indicates that it is nevertheless a pre-formulated standard contract. Where any seller or supplier claims that a standard term has been individually negotiated, the burden of proof in this respect shall be incumbent on him …
5. Without prejudice to the present law, the unfairness of a contractual term shall be assessed, taking into account:
a) the nature of the goods or services for which the contract was concluded at the time of conclusion
b) all the circumstances attending the conclusion of the contract
c) all the other terms of the contract or of another contract on which it is dependent.
6. Assessment of the unfair nature of the terms shall relate neither to the definition of the main subject matter of the contract nor to the adequacy of the price and remuneration, on the one hand, as against the services or goods supplied in exchange, on the other, in so far as these terms are in plain intelligible language.”
35. Government Emergency Ordinance no. 50/2010 on loan contracts for consumers, in force as from 11 June 2010, sought to transpose European Directive 2008/48/EEC into national law. It introduced significant changes to the manner in which various bank fees had to be calculated. Its provisions were mandatory, not only for future loan contracts concluded with the various banks, but also for those which were already in force. The latter were to be amended by the banks within ninety daysin accordance with the new rules.
36. The relevant domestic provisions on appeals in the interests of the law are summarised in the case of Lupeni Greek Catholic Parish and Others v. Romania ([GC], no. 76943/11, § 46, 29 November 2016).
2. Domestic case-law
37. The Government submitted several judgments rendered by the High Court on the fairness of certain terms of loan contracts. They concerned contracts concluded with several commercial banks, including the Bank. While emphasising that each loan contract – and, implicitly, each case – had its own particularities, the Government indicated that the High Court’s case-law concerning the unfairness of loan terms such as those relevant for the present case was generally favourable to the claimants. The main arguments used by the court were that the terms had not been negotiated, they had not been drafted in sufficiently clear language, or that the relevant indicators were imprecise.
38. In the very few situations where the High Court had dismissed claims, it had been mainly on the grounds that they had not been raised in compliance with the procedural rules (for example, deadlines had not been respected, or stamp duty had not been paid), or that the claimant had not been a consumer within the meaning of the relevant law.
39. The Government also submitted a document containing consistent information concerning the related domestic practice at the level of the appellate courts, which had rendered final judgments on appeal. They pointed out that at the relevant time those judgments had not been subjected to any appeal on points of law before the High Court, having regard to the relatively low value of the subject matter. Although the case-law showed a slight tendency towards accepting the applicants’ claims, the outcome depended very much on the manner in which the claims had been formulated and on the language used in the contested terms. The Government argued that the factual basis for each case was relevantly different.
40. To substantiate their claim, and arguing that their case was an isolated example, the applicants relied mainly on the High Court’s decision concerning Group 1 (see paragraphs 30-33 above), as well as on a small number of other decisions dealing with similar issues, where the High Court’s findings were contrary to those in the applicants’ case.
3. European Court of Justice case-law
41. The subject matter of alleged unfair terms in loan agreements has been brought before the CJEU many times; for instance, in case C-143/13, following a request for a preliminary ruling from the Specialised Court of Cluj (Tribunalul Specializat Cluj) in the proceedings in the case of Matei v SC Volksbank Romania SA[1]. In its judgment of 26 February 2015, the CJEU held, essentially, that the types of terms in loan agreements concluded between a professional and consumers which allowed the lender, under certain conditions, unilaterally to alter the interest rate or to apply a risk charge, were not covered by the exceptions prescribed in Article 4(2) of Council Directive 93/13/EEC (see paragraph 34 above), and therefore could be “verified” by the courts.
42. The matter of loan contracts denominated in a foreign currency (namely, the Swiss Franc) has also been brought before the CJEU (case C‑186/16), following a request for a preliminary ruling from the Oradea Court of Appeal in the proceedings in the case of Andriciuc and Others v Banca Romaneasca SA[2]. This was settled by a judgment of 20 September 2017 in which the CJEU defined the notion of “plain intelligible language” required for the drafting of contractual terms, and indicated that the unfairness of a contractual term should be determined by reference to the time the contractat issue had been concluded.
COMPLAINTS
43. The applicants complained, under Article 6 taken alone and in conjunction with Article 14 of the Convention, that the High Court had delivered divergent judgments on the same subject matter.
44. The applicants also raised complaints under Article 1 of Protocol No. 1 to the Convention and Article 14 of the Convention, alleging that the inconsistency of the domestic case-law had led to their being discriminated against in comparison with all other applicants whose claims had been allowed by the courts and who had consequently been reimbursed for payments they had made based on unlawful contractual terms.
THE LAW
A. Complaint under Article 6 § 1 of the Convention
45. The applicants complained that the proceedings in their case had been unfair and that the principle of legal certainty had been breached when the High Court, without proper justification, had decided on their claims differently from other similar cases. They relied on Article 6 § 1 of the Convention, the relevant part of which provides:
“In the determination of his civil rights and obligations … everyone is entitled to a fair … hearing … by [a] … tribunal …”
1. The parties’ submissions
(a) The Government
46. The Government mainly argued that in the majority of the judgments given in proceedings similar to the present case, the courts had allowed the claimants’ arguments and held that the impugned terms of the loan contracts had been unfair. Furthermore, the outcome in the applicants’ case represented the exception, and not the rule.
47. In any event, the various decisions given by the High Court had always been well-reasoned and related directly to the large variety of loan contracts. In that regard, it appeared that at the level of the High Court, there was not a profound and long-standing, if any, divergence on the matter. The Government argued in this context that the requirements of legal certainty did not confer an acquired right to consistency of case-law.
48. The Government further indicated that the domestic legal system provided for an effective mechanism capable of resolving conflicts in court decisions, namely the appeal in the interests of the law (see paragraph 36 above). In the present case, the setting into motion of that mechanism had not been considered necessary precisely because the courts’ case-law did not conflict to such an extent as to render applicable the provisions governing the said appeal.
(b) The applicants
49. The applicants argued that the issue at stake concerned a large number of claimants, and was therefore a problematic matter on a large scale. In that context, any hesitation on the part of the courts in one sense or the other had a strong impact on the claimants. The large scale of the problem indicated that there was a clear divergence for which no solution had been found at the domestic level.
50. The applicants further argued that their own case, even if rather isolated, was not the only example of a judgment in which the claimants’ actions had been dismissed by the High Court. In any event, their case could not be counted as a single example, in so far as it was not a collective action but consisted of hundreds of individual actions lodged in one set of proceedings.
51. The applicants also indicated that the issue raised by the present application had never been addressed by the High Court in an appeal on points of law, as the instrument meant to unify the relevant practice, even though thousands of similar cases were pending before the domestic courts on the matter.
2. Submissions by the third-party intervener
52. The Bank submitted in its intervention that each loan contract was based on the specific economic and risk profile of each consumer. Thus the factual basis supporting each of the applicants’ loan files was unique.
53. The Bank also argued that the mechanism for remedying any potential inconsistencies in the assessment of the fairness of loan contracts was represented by the binding decisions of the CJEU, which were consistently applied by the national courts, including the High Court. The CJEU required the domestic courts to make their analysis on a case-by-case basis, taking into account the specificities of each case, including with reference to the actual extent to which the clients had been informed when signing the contract.
54. The Bank indicated also that the national courts did not have jurisdiction to modify the content of any term declared unfair, as the parties had an obligation and/or possibility to renegotiate.
55. In the present case, the Bank had initiated renegotiation discussions with claimants from both groups, namely with the applicants as well as with the Group 1 claimants, irrespective of the outcome of the domestic proceedings.
3. The Court’s assessment
(a) General principles
56. The general principles applicable to cases concerning conflicting decisions in case-law have been referred to by the Court in its judgment in the case of Lupeni Greek Catholic Parish and Others v. Romania ([GC], no. 76943/11, § 116, 29 November 2016).
57. In particular,the Court has held that the possibility of conflicting court decisions is an inherent trait of any judicial system which is based on a network of trial and appeal courts with authority over the area of their territorial jurisdiction. Such divergences may also arise within the same court. That, in itself, cannot be considered contrary to the Convention (see Nejdet Şahin and Perihan Şahin v. Turkey [GC], no. 13279/05, § 51, 20 October 2011). Giving two disputes different treatment cannot be considered to give rise to conflicting case-law when this is justified by a difference in the factual situations at issue. However, when contradictory decisions are given by different domestic courts ruling at final instance, in order to ascertain whether there has been a violation of the right to a fair hearing, enshrined in Article 6 § 1 of the Convention, the Court will be guided by the following criteria, consisting in establishing, firstly, whether “profound and long-standing differences” exist in the case-law of the domestic courts; secondly, whether the domestic law provides for a mechanism for overcoming these inconsistencies; and, thirdly, whether that mechanism has been applied and, if appropriate, to what effect (Lupeni Greek Catholic Parish and Others, cited above, § 116).
(b) Application of the general principles to the present case
58. The Court notes at the outset that the present case concerns the interpretation given by the High Court to some terms of the loan contracts concluded between the applicants and the Bank, aiming to establish whether they were fair within the meaning of Law no. 193/2000 (see paragraph 34 above).
59. In its assessment of the case, the High Court reached a different conclusion from the one it had rendered in another judgment delivered, in a different composition, by the same court in a case raising a similar issue. In particular, for the reasons specified in its judgment of 23 March 2016 (see paragraphs 18-22 above), the High Court considered that the terms contested by the applicants could not be regarded as unfair. Conversely, based on different reasoning, in the previous case involving the claimants of Group 1, the High Court considered that some similar terms in similar loan contracts were unfair and ordered that they be amended and that payments made on the basis of them be reimbursed to the claimants (see the judgment of 20 October 2015, described in paragraphs 30-33 above).
60. At this juncture, the Court reiterates that, save in the event of evident arbitrariness, it is not its role to question the interpretation of domestic law by the national courts; nor is it in principle its function to compare different decisions of national courts, even if given in apparently similar proceedings; it must respect the independence of those courts (see Nejdet Şahin and Perihan Şahin, cited above, § 50,).
61. The Court observes that in the present case, the applicants as well as the other claimants in the comparable group had the benefit of adversarial proceedings, in which they were able to adduce evidence and freely formulate their defence, and in which their arguments were properly examined by the courts. Likewise, in both cases the High Court’s conclusions and its interpretation of the relevant law cannot be regarded as arbitrary or manifestly unreasonable.
62. The Court considers it important also to note that the special nature of the present case lies in the large number of claimants involved in the proceedings called into question. The applicants argued that this large number indicated that the matter complained of represented a problematic issue on a large scale (see paragraph 49 above).
63. In this regard, the Court reiterates that the persistence of conflicting court decisions, especially when the impugned divergence involves massive numbers of applicants, can in certain circumstances create a state of legal uncertainty likely to reduce public confidence in the judicial system, which is clearly one of the essential components of a State based on the rule of law (see Albu and Others v. Romania, nos. 34796/09 and 63 others, § 38, 10 May 2012).
64. Nevertheless, although an unfavourable outcome in proceedings such as the present ones appears to have a greater impact in the public eye than in the case of an action lodged by a single claimant, the Court must take into consideration the apparently inconsistent interpretation of the High Court, as revealed by its relevant judgments, irrespective of the number of claimants involved in the proceedings. In the Court’s view the fact that the domestic proceedings involved a large number of applicants, some of whom had their claims dismissed via one single judgment, cannot by itself and in the absence of any other relevant factors be an indicator of the existence of a persistent divergence on a large scale.
65. At this juncture, the Court reiterates that in some of its previous cases, it has already found that in the circumstances of those cases, by setting in motion in a relatively prompt manner an appeal in the interests of the law, the domestic system proved capable of accommodating the divergences of approach taken by the courts as part of the process of interpreting legal provisions while adapting them to the material situation (see Albu and Others, cited above, § 42 and the references cited therein).
66. However, turning to the present case, the Court takes note of the Government’s arguments relating to the existing case-law at the level of the High Court, indicating that a clear majority of cases allow the applicants’ claims and thus find the terms of loan contracts to be unfair (see paragraph 37 above). Moreover, it was for that reason that the setting into motion of a unifying mechanism was not considered necessary (see paragraph 48 above).
67. In the circumstances mentioned above, the Court considers that there is nothing to indicate that there were “profound and long‑standing differences” in the relevant case-law of the High Court, which would have required the setting into motion of a mechanism capable of ensuring consistency in the practice of the national courts (see Nejdet Şahin and Perihan Şahin, cited above, § 53 and, by way of contrast, Albu and Others, cited above, § 39).
68. Having regard to all the above considerations, the Court considers that this part of the application is manifestly ill-founded and should be dismissed as inadmissible pursuant to Article 35 §§ 3 and 4 of the Convention.
B. Complaint under Article 1 of Protocol No. 1 to the Convention
69. The applicants complained that as a result of the wrongful interpretation of the law, the High Court had deprived them of their right to be reimbursed the money they had paid to the Bank pursuant to various unfair terms in the loan contracts.
They invoked Article 1 of Protocol No. 1 to the Convention, which reads as follows:
“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.
The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”
70. The Government contended that the applicants did not have a “possession” within the meaning of Article 1 of Protocol No. 1 and that therefore their complaint should be dismissed as incompatible ratione materiae. They argued that no legitimate expectation arose where there was a dispute as to the correct application of the domestic law and the applicants’ submissions had subsequently been dismissed by the national courts.
71. The applicants considered that, having regard to the existence of other judgments in which similar claims had been allowed, they had a legitimate expectation to also see their claims granted, including in respect of being reimbursed the money paid on the basis of unfair contractual terms.
72. The Court does not consider it necessary to ascertain whether the applicants had a legitimate expectation to be reimbursed the payments they had made to the Bank, because, even assuming Article 1 of Protocol No. 1 to be applicable to the circumstances of the present case, the complaint is in any case inadmissible for the following reasons.
73. The Court reiterates that while Article 1 of Protocol No.1 is essentially concerned with preventing unwarranted State interference with property rights, in certain situations the effective enjoyment of the rights guaranteed by that provision may entail the adoption of positive measures, even in cases involving litigation between private individuals or companies (see Shesti Mai Engineering OOD and Others v. Bulgaria, no. 17854/04, § 79, 20 September 2011).
74. This means, in particular, that the States are under an obligation to afford judicial procedures that offer the necessary procedural guarantees and therefore enable the domestic courts and tribunals to adjudicate effectively and fairly any disputes between private persons (see Sovtransavto Holding v. Ukraine, no. 48553/99, § 96, ECHR 2002‑VII and Kotov v. Russia [GC], no. 54522/00, § 114, 3 April 2012).
75. Turning to the present case, the Court considers that the applicants’ claims were adjudicated effectively and fairly by the High Court, in a set of proceedings in which all procedural safeguards had been respected (see also paragraph 61 above). The Court therefore finds that the positive obligation of the State under Article 1 of Protocol No. 1 has been complied with in the present case, and in the absence of any arbitrariness or manifest unreasonableness, it cannot call into question the findings of the High Court (see, mutatis mutandis, Anheuser-Busch Inc. v. Portugal [GC], no. 73049/01, §§ 85-86, ECHR 2007‑I, andAli v. Georgia (dec.), no. 41710/05, 12June 2018).
76. It follows that the applicants’ complaints raised under Article 1 of Protocol No. 1 to the Convention are manifestly ill-founded and should be dismissed pursuant to Article 35 §§ 3 and 4 of the Convention.
C. Complaint concerning discrimination
77. The applicants complained that the alleged inconsistency in the case‑law on the matter of loan contracts had led to their being discriminated against compared with other claimants, whose claims had all been allowed by the courts. They relied on Article 14 taken in conjunction with Article 6 § 1 of the Convention, and Article 1 of Protocol No. 1 to the Convention. Article 14 reads:
“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”
78. In view of its findings in paragraphs 61 and 75 above, the Court considers that this complaint is also manifestly ill-founded (see Pérez Arias v. Spain, no. 32978/03, § 28, 28 June 2007) and should be dismissed pursuant to Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court, unanimously,
Declares the application inadmissible.
Done in English and notified in writing on 5 March 2020.
Ilse Freiwirth Faris Vehabović
Deputy Registrar President
Appendix
List of 5 applicants
| No. | Applicant’s Name | Birth date | Nationality | Place of residence |
| 1 | Gheorghe BRĂDĂȚEANU | 14/04/1969 | Romanian | Vatra Dornei |
| 2 | Ion ARDELEANU | 18/12/1954 | Romanian | Brașov |
| 3 | Aurelia EISSENGARTHEN | 21/03/1977 | Romanian and German | Morfelden-walldorf |
| 4 | Ștefan IONESCU | 05/09/1976 | Romanian | Pitești |
| 5 | Marcel TĂNASE | 09/04/1972 | Romanian | Constanța |
[1] http://curia.europa.eu/juris/document/document.jsf;jsessionid=360C9961AE5ABA7FD3AE879B45E03FD7?text=&docid=162540&pageIndex=0&doclang=EN&mode=lst&dir=&occ=first&part=1&cid=3811468
[2] http://curia.europa.eu/juris/document/document.jsf?text=&docid=194645&pageIndex=0&doclang=EN&mode=lst&dir=&occ=first&part=1&cid=3811468
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