Published on 22 May 2023

FOURTH SECTION

Application no. 40685/22 Ana-Maria BÃŽRLOG and Adrian-Nicolae BÃŽRLOG against Romania lodged on 12 August 2022 communicated on 4 May 2023

SUBJECT MATTER OF THE CASE

The application concerns the applicants’ complaints under Article 6 of the Convention of lack of access to court in proceedings seeking the balancing of the parties’ contractual obligations by adapting contractual clauses in order for the applicants not to bear alone the negative effects of financial hardship. The alleged lack of access would have been due to conflicting case-law of the domestic courts regarding the admissibility of similar actions lodged by borrowers in mortgage loan agreements (as the applicants in the present case) relying on the provisions of Law no. 77/2016 on the transfer in lieu of payment (“ dare în plată ”), as amended by Law no. 52/2020.

The admissibility of such actions was the object of divergent case ‑ law of the domestic courts, as some courts issued decisions allowing for such actions to be examined on the merits, while others dismissed similar actions as inadmissible, reasoning that the provisions of Law no. 77/2016 only allowed the consumer to request the termination of the contract by transferring the mortgaged immovable property to the creditor and did not allow for the adaptation of the contractual clauses. In the context of a reunion of the presidents of specialised sections of the High Court of Cassation and Justice and of the Courts of Appeal which took place on 16-17 September 2021, within the framework of the mechanism for achieving consistency of case ‑ law set up under decision no. 148 of 19 March 2015 adopted by the Superior Council of Magistracy – Section for Judges, the participants agreed by majority that the provisions of Law no. 77/2016, as interpreted in the light of the Constitutional Court’s decisions and as amended by Law no. 52/2020, allowed for the consumer to lodge an action requesting the balancing of the parties’ contractual obligations by adapting the contractual clauses. The minutes of this meeting were published on the website of the National Institute of Magistracy on 6 December 2021.

By a final decision of the Brașov County Court of 16 December 2021, the applicants’ action requesting the balancing of the parties’ contractual obligations by adapting the contractual clauses was dismissed as inadmissible, on the grounds that the provisions of Law no. 77/2016 did not confer on the consumer the possibility to request the adaptation of the contractual clauses, but only to request the transfer in lieu of payment, even though, when adjudicating on such a request, courts could decide to adapt the contractual clauses in order to safeguard the contract, instead of terminating it by transfer of the mortgaged property to the creditor.

QUESTIONS TO THE PARTIES

1. Have the applicants had access to a court for the determination of their civil rights and obligations, in accordance with Article 6 § 1 of the Convention, in so far as their action seeking the balancing of the parties’ obligations by adapting the contractual clauses, under the provisions of Law no. 77/2016, was dismissed as inadmissible, without being examined on merits (see for instance Lupeni Greek Catholic Parish and Others v. Romania [GC], no. 76943/11, §§ 84-90, 29 November 2016)?

2. Have the applicants had a fair hearing in the determination of their civil rights and obligations, in accordance with Article 6 § 1 of the Convention, in so far as similar actions before the domestic courts had different outcomes? In particular, was the principle of legal certainty, as developed in the Court’s case-law in the interpretation of Article 6 of the Convention (see for instance Lupeni Greek Catholic Parish and Others v. Romania cited above, § 116; Albu and Others v. Romania , nos. 34796/09 and 63 others, §§ 34 and 42, 10 May 2012; and Petrescu and Others v. Romania (dec.), nos. 31390/18 and 9 others, §§ 54-55, 7 March 2023), complied with by the domestic courts?

3. Do the reunions of the presidents of specialised sections of the High Court of Cassation and Justice and of the Courts of Appeal within the framework of the mechanism for achieving consistency of case-law set up under decision no. 148 of 19 March 2015 adopted by the Superior Council of Magistracy represent a mechanism to overcome inconsistencies in the case ‑ law capable of bringing an end to the inconsistent rulings, as required by the principles enshrined in Article 6 of the Convention, developed in the Court’s case-law (see for instance Lupeni Greek Catholic Parish and Others v. Romania , cited above, §129; Albu and Others v. Romania , cited above, § 40; and Petrescu and Others v. Romania (dec.), cited above)? More generally, the Government are invited to indicate to what extent the agreement reached within this framework is compulsory for the domestic courts.

4. In the instant case, was the agreement reached by the presidents of specialised sections of the High Court of Cassation and Justice and of the Courts of Appeal on 16-17 September 2021 an effective mechanism to overcome inconsistencies in the case-law concerning the provisions of Law no. 77/2016 on the transfer in lieu of payment (“ dare în plată ”) as amended by Law no. 52/2020?