FOURTH SECTION

DECISION

Application no. 4558/20 BCR BANCA PENTRU LOCUINÈšE S.A. against Romania

The European Court of Human Rights (Fourth Section), sitting on 5 December 2023 as a Chamber composed of:

Gabriele Kucsko-Stadlmayer , President , Faris Vehabović, Branko Lubarda, Anja Seibert-Fohr, Ana Maria Guerra Martins, Anne Louise Bormann, Sebastian Răduleţu , judges , and Ilse Freiwirth, Deputy Section Registrar,

Having regard to the above application lodged on 16 January 2020,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant company,

Having deliberated, decides as follows:

THE FACTS

1. The applicant company, BCR Banca pentru Locuințe S.A., is a Romanian company which was registered in 2008 and is based in Bucharest. It was represented before the Court by Mr D. Bollecker, a lawyer practising in Strasbourg.

2. The Romanian Government (“the Government”) were represented by their Agent, Ms O.F. Ezer, of the Ministry of Foreign Affairs.

The circumstances of the case

3. The facts of the case, as submitted by the parties, may be summarised as follows.

4. The applicant company is a private company, whose shareholders are private banks or financial institutions owned or controlled by one of the largest financial services providers in Central and Eastern Europe, the Austrian private banking group E.

5. On 1 January 2003 Law no. 541/2002 on collective savings and loans for housing-related activities entered into force. The Law aimed to introduce and regulate, for the first time in Romania, building societies ( bănci de economisire și creditare în domeniul locativ ) and the associated collective system of savings and loans for housing-related activities ( activităţi în domeniul locativ ), also known as the Bauspar system. The Law covered the main rules governing the above-mentioned system as well as the scope and breadth of a building society’s activities and responsibilities.

6 . On 1 January 2007 Law no. 541/2002 was repealed by Government Emergency Ordinance no. 99/2006 on lending institutions and capital adequacy (“the Ordinance”) and the rules for its implementation (“the implementing rules”).

7 . On 3 July 2008 the National Bank of Romania ( Banca Naţională a României – “the BNR”) authorised the applicant company to operate as a building society. The applicant company was the only building society authorised to operate in the country apart from building society A., which was owned by the Austrian private banking group R.

8. The building societies were essentially banks specialising in the long ‑ term financing of housing-related activities (such as purchasing, constructing or renovating residential property) and were an inherent part of the Bauspar system. They could accept savings deposits from their customers and then use the amounts accumulated to lend them money at fixed interest rates. The resulting savings and loan agreements and the activities associated with their implementation constituted an essential part of their business.

9. To ensure the stability of the system even in times of economic crisis, the national authorities restricted the income-generating activities available to the building societies that could cover their operating costs. For example, they could only invest in low-risk financial instruments, and their income from deposits and loans was capped.

10 . To stimulate participation in the Bauspar system, the national authorities decided to offer building societies and their customers certain financial and tax benefits not otherwise available to ordinary banks in the market and their customers. Amongst other things, people who had signed a savings and loan agreement with a building society could benefit from a State bonus ( primă de stat ).

11 . The bonus was granted annually during the entire duration of the saving period of the agreement. To benefit from it, a customer had to meet certain conditions and the building societies had to include a clause in all agreements authorising them to claim the bonus on behalf of their customers.

12 . From July 2008 to December 2015 the applicant company concluded over 500,000 savings and loan agreements with customers. In December 2015 almost 380,000 agreements were ongoing.

13. From 20 July to 26 October 2015 the Romanian Court of Accounts ( Curtea de Conturi a României – “the CCR”) audited the applicant company. The audit reviewed the manner in which the applicant company had managed the State bonuses granted to its customers.

14 . On 26 October 2015 the CCR issued an audit report stating that the applicant company had calculated, claimed and released the State bonuses in an unlawful manner. The main points can be summarised as follows.

(i) The applicant company had taken into account the fees charged to its customers for signing the savings and loan agreements and for managing their accounts, as well as fees that could not be used to calculate interest, to calculate the bonuses.

(ii) It had released bonuses to customers who had saved for five years or more and whose agreements had been either cancelled, unallocated or allocated without the customer taking out a loan or who had failed to save the total amount stipulated in the agreements, without requesting proof that they were using the funds for housing-related activities.

(iii) It had not transferred to the State the interest accrued on bonuses which, after being deposited in customers’ accounts, were eventually returned to the Ministry of Regional Development and Housing ( Ministerul Dezvoltării Regionale și Locuinţei – “the MDRL”) because the conditions for their release had not been met.

(iv) It had concluded savings and loan agreements with minors and people over the age of 65. Moreover, these agreements had been cancelled before or without being allocated or before the customers had saved the amounts stipulated in the agreements, and the customers had used the bonuses for purposes other than for housing-related activities.

(v) It had released bonuses without requesting sufficient proof that the funds were being used for housing-related activities.

(vi) It had released bonuses to transferees ( cesionari ) of savings and loan agreements exceeding the amount that could be paid to an individual.

15. The report found that the overall damage suffered by the State budget because of the applicant company’s actions, as far as it could be calculated by the auditors, was an estimated 269,367,454 Romanian lei (RON – 60,805,287 euros (EUR)).

16. The report also found that, pursuant to the Ordinance, the applicant company was a guarantor ( fidejusor ) jointly liable with its customers for the bonuses unlawfully received by the latter. It therefore had to return the above-mentioned amount to the MDRL along with the corresponding penalties for its failure to comply with its lawful obligations, which amounted to an estimated RON 54,994,325 (EUR 12,587,499).

17. Lastly, the report noted that the applicant company was legally required to establish the exact extent of the damage suffered by the State in respect of each of the above-mentioned deficiencies and take measures to remedy them.

18 . The CCR’s findings and conclusions above were based, among other things, on the point of view of the Ministry of Public Finance ( Ministerul Finanţelor Publice – “the MFP”) submitted during the audit, which explained its position on the interpretation of the relevant provisions of the Ordinance and its implementing rules (see paragraphs 96-97 below). The MFP’s point of view was asked for by the CCR and, in essence, confirmed its interpretation of those provisions.

19 . On 9 November 2015 the applicant company objected to the findings of the audit report before the CCR. It argued that the CCR had misunderstood the Bauspar system and misinterpreted the Ordinance and its implementing rules.

20 . On 10 December 2015 the CCR examined the audit report and the applicant company’s objections. By decision no. 17, delivered on the same date, the CCR reiterated the findings of the audit report.

21. In addition, the CCR held that the applicant company had to review its internal practices and remedy the deficiencies found by 31 January 2016 to ensure that ongoing agreements were not affected. Furthermore, it was under an immediate and permanent obligation to ask customers who requested the release of bonuses for proof that they were being used for housing-related activities. Also, on account of its joint liability with its customers, it had to determine the exact extent of the damage caused by the deficiencies found, take measures to remedy them and pay the corresponding penalties by 30 April 2016.

22. The CCR further held that, in addition to the above-mentioned measures, the applicant company could take any other such measures as it saw fit to remedy the deficiencies. The CCR also pointed to the fact that, under the law concerning its organisation, any failure by the applicant company to implement and pursue the measures indicated by the CCR and therefore fix the damage caused constituted an offence and was punishable by imprisonment or a fine.

23 . On 15 December 2015 the CCR notified its decision to the applicant company and informed it that it could challenge the decision before an appeal commission within the CCR (“the Commission”).

24 . On 23 December 2015 the applicant company challenged decision no. 17 of 10 December 2015 (see paragraph 20 above) before the Commission and asked for the measures imposed on it to be cancelled. In the alternative, it asked for the time-limits afforded for implementation of the measures to be extended. The applicant company argued that the CCR had failed to consider and examine its objections (see paragraph 19 above) given that its decision had merely reiterated the findings of the audit report and reiterated those objections.

25 . On 10 February 2016 the MDRL informed the applicant company that from 20 July to 27 October 2015 the CCR had audited its manner of using the funds allocated for bonuses and that by decision no. 19 of 10 December 2015 the CCR had ordered it to recover from the applicant company and building society A. the damage caused by their actions. The MDRL also stated that the damage in question was described in decisions nos. 17 and 18 delivered by the CCR in respect of the two building societies on 10 December 2015 after the CCR had audited them.

26 . On 29 February 2016 the Commission dismissed the applicant company’s challenge and request for an extension of the time-limit for implementation of the measures imposed on it (see paragraph 24 above). It held that the CCR had considered the applicant company’s objections to the audit report and maintained its position.

27 . The Commission also held that the Ordinance provided that the Bauspar system was financed by building society customers, the State and building societies. The latter had to provide loans by using their financial resources and their customers could borrow for housing-related activities at the end of the saving period, but if they chose not to, the bonuses could not be released to them. Referring to point (i) of the audit report the Commission held that the applicant company had used incorrect information when claiming the bonuses.

(a) Application to stay the enforcement of the CCR’s decisions

(i) Application to stay the enforcement

28. On 10 March 2016 the applicant company applied to the Bucharest Court of Appeal (“the Court of Appeal”) to stay the enforcement of the CCR’s decisions (see paragraphs 20 and 26 above) pending the outcome of the proceedings on the merits (see paragraph 36 below).

29. It argued that if it were to implement the measures imposed on it immediately, it could suffer imminent and foreseeable pecuniary and non ‑ pecuniary damage and a serious disruption of its activity. In particular, its reputation and current and future customers could be lost, its operations could be frozen and it could collapse.

30. The applicant company pointed to the fact that the contracts signed with minors and people over 65 were threatened with irreversible cancellation. In addition, amending each of the almost 380,000 ongoing contracts and recalculating the deposits of all those customers required a massive logistical effort. Furthermore, the amounts it had to return to the State were almost five times higher than its share capital and three times higher than its own funds. The only way it could return those amounts to the State was to either take legal action against at least each of an estimated 439,000 of its customers or pay the amounts in question itself, as requested by the authorities. Either way, however, the financial repercussions for it were colossal and very likely impossible to sustain.

31 . Reiterating some of the arguments raised before the Commission and before the Court of Appeal during the proceedings on the merits (see paragraphs and 24 above and 36 below), the applicant company argued that there was a reasonable suspicion that the CCR’s manner of interpretation of the Ordinance and its implementing rules had been unlawful given that it had contradicted a long-standing practice of other public institutions responsible for its supervision.

(ii) The Court of Appeal’s judgment

32 . On 12 April 2016 the Court of Appeal stayed the enforcement of the CCR’s decisions pending the outcome of the proceedings on the merits.

33. It held that the applicant company had appropriately challenged the entire legal argument used by the CCR to justify its measures, including the latter’s views on the national authorities’ reasons behind the implementation of the Bauspar system and its interpretation of the relevant law.

34 . Moreover, since 2008 no other public institution responsible for the applicant company’s supervision had flagged up any deficiencies in the manner it had applied the legislation in question. Not even the CCR had pointed to any deficiencies connected to its operations during a 2011 audit of the MDRL.

35. Furthermore, the enforcement of the measures against the applicant company, given their extent, could affect its operations and prove difficult to reverse in the event that the measures were quashed.

(b) Proceedings to quash the CCR’s decisions

(i) The applicant company’s arguments

36 . On 10 March 2016 the applicant company appealed against the CCR’s decisions (see paragraphs 20 and 26 above) before the Court of Appeal and asked the court to quash them. It reiterated the arguments it had raised in its objections against the audit report and in its challenge before the Commission (see paragraphs 19 and 24 above).

37 . In addition, the applicant company argued that the national Bauspar system had largely remained the same since 2003 and that the CCR’s findings that the payment of bonuses was dependent on the building society customers borrowing at the end of the saving period were unlawful. Furthermore, it was clear that the CCR’s interpretation of the law was unique and inconsistent with the practice of other public institutions, such as the BNR and MDRL, or with the practice of building society A., given that the latter had interpreted the relevant law in the same manner as the applicant company.

38 . The CCR had interpreted and applied the rules governing the Bauspar system in a manner which had violated the principles of foreseeability and legal certainty and undermined the public’s confidence in the predictability of the authorities’ actions. The CCR had also violated the applicant company’s right of defence because it had ignored its arguments or examined them based on preconceived ideas, failed to consider its objections to the audit report and made the alleged violations public even before it had delivered decision no. 17 (see paragraph 20 above).

39. The CCR’s actions and measures had effectively forced it to damage its customers’ interests, had seriously and irremediably affected its image and credibility and, if implemented, would put an end to its business.

(ii) The Court of Appeal’s judgment

40 . By a judgment of 1 March 2017 the Court of Appeal allowed the applicant company’s appeal in part and quashed the CCR’s findings concerning points (ii) to (v) of the audit report (see paragraph 14 above) along with the corresponding measures. It upheld, however, the CCR’s findings concerning points (i) and (vi) of the audit report along with the corresponding measures.

41. The court held that Law no. 541/2002 was inapplicable in the case. Nonetheless, before it could examine the applicant company’s challenge and arguments it was essential to review the relevant provisions of Law no. 541/2002 and the Ordinance and their implementing rules in the light of the related explanatory memorandums and to consider the history and specifics of the Bauspar system.

42. The court compared the relevant provisions of Law no. 541/2002 and the Ordinance as well as their implementing rules, observing that the Ordinance had made some changes to some of the provisions disputed by the parties with the aim of avoiding a divergent interpretation of the law and that the most important changes for the purposes of the applicant company’s challenge were those made to the wording of Article 315 of the Ordinance.

43. The court shared the applicant company’s view – which in the court’s opinion was confirmed by the explanatory memorandum to the Ordinance – that the fact that borrowing was optional for Bauspar savers was the essence of the system.

44 . The court held that the applicant company had raised several arguments concerning the unlawfulness of the CCR’s decisions viewed overall. Nevertheless, it found that the arguments in question could not give rise to the conclusion that the CCR’s decisions were unlawful overall.

45 . The court held in this connection that the applicant company could not argue that any possible divergence or difficulties in interpreting a legal text automatically gave rise to the conclusion that the law in question was unclear or violated the principle of legal certainty and legitimate trust in the actions of public authorities. The CCR’s decisions were not unlawful overall as long as the court could conduct an individual examination of the impugned legal provisions and could reach a conclusion on the merits of the case by applying the rules of interpretation of legal norms.

46. Furthermore, the CCR could not have violated the applicant company’s right of defence because it had made public its findings before decision no. 17 had actually been delivered or because it had examined the applicant company’s arguments only briefly as long as the applicant company could challenge the CCR’s decisions before the courts.

47 . As to points (i) and (vi) of the audit report, the court held that the CCR’s findings were correct and that the applicant company’s claims in this connection were ill-founded.

48. As regards point (ii) of the audit report, the court held that the applicant company’s interpretation of the legal provisions in question was correct. Under Article 315 § 1 of the Ordinance, a person only had to meet two conditions to be able to benefit from the bonus without having to prove that he or she was using it for housing-related activities. In particular, the person had to conclude a savings and loan agreement for a minimum of five years and refrain from withdrawing all or part of his or her savings before the end of the saving period. The exceptions provided for in Article 315 § 2 could not lead to a different conclusion.

49. The CCR’s view that a person was only exempted from providing such proof during the saving period of the agreement had no legal foundation and deprived Article 315 § 1 of the Ordinance of any meaning. It was also based on a misinterpretation and an erroneous application of Article 4 § 1 and Article 5 § 1 of the Ordinance’s implementing rules.

50. The court took the view that, under Article 3 § 2 (a) and Article 4 § 1 of the implementing rules, only people who found themselves in the circumstances described in Article 3 § 2 (a) had to prove the immediate and direct use of the bonuses for housing-related activities. Under Article 5 §§ 1 and 2 of the implementing rules, however, these people could submit the proof in question within two years from the date that the balance of their savings account was released.

51. The court held that the above-mentioned interpretation of the law was confirmed by the relevant implementing rules of Law no. 541/2002, which were maintained in effect by the Ordinance and its implementing rules.

52. The court also found it relevant in this connection that the explanatory memorandum to Law no. 164/2018 (see paragraph 98 below) stated that under the Ordinance and its implementing rules, building society customers could benefit from the State bonus without having to prove that they were using the funds for housing-related activities if they saved with the building societies for more than five years. The explanatory memorandum also stated that Law no. 164/2018 would introduce, for the first time, an obligation for Bauspar savers to prove that they were using the bonuses for housing-related activities if they wished to have the bonuses released to them.

53. The court held that the CCR had relied on other arguments in order to justify its interpretation of the law, including the fact that a different interpretation from that endorsed by it could have made the national Bauspar system inefficient. The court found, however, that such arguments could constitute reasons for a change in the legislation, but could not justify an interpretation of the law that changed its meaning.

54. As to point (iii) of the audit report, the court held that the impugned measure was unlawful because of its findings concerning point (ii) above.

55 . As regards point (iv) of the audit report, the court held that none of the provisions of the Ordinance or its implementing rules prevented the applicant company from concluding savings and loan agreements with minors and people over 65. The conditions for entitlement to the bonus were laid down in Article 311 § 1 of the Ordinance, and neither Article 290 (b) nor Article 313 of the Ordinance could be read to exclude people under 18 and over 65 from the category of people who could possibly benefit from it.

56 . The applicant company’s internal rules preventing minors and people over 65 from taking out loans were irrelevant since Bauspar savers did not have to borrow at the end of the saving period.

57 . As to point (v) of the audit report, the court held that the applicant company had complied with its lawful obligations.

(a) Appeal against the Court of Appeal’s judgment of 13 April 2016

58. The CCR appealed against the Court of Appeal’s judgment of 12 April 2016 (see paragraph 32 above) before the High Court of Cassation and Justice (“the Court of Cassation”).

59. By a final judgment of 3 October 2018 the Court of Cassation dismissed the CCR’s appeal as ill-founded.

(b) Appeal against the Court of Appeal’s judgment of 1 March 2017

(i) The applicant company’s appeal

60 . The CCR and the applicant company appealed against the Court of Appeal’s judgment of 1 March 2017 (see paragraph 40 above) on points of fact and law. The applicant company asked the Court of Cassation to quash the judgment as regards points (i) and (vi) of the audit report and annul the corresponding measures. Moreover, the applicant company asked the court to uphold the decision on point (iii) of the audit report but replace the reasons provided by that court for its judgment with its own arguments. Furthermore, the applicant company asked the court to dismiss the CCR’s appeal against the Court of Appeal’s judgment regarding points (ii) to (v) of the audit report.

61 . In its submissions, the applicant company essentially reiterated its arguments concerning the national Bauspar system raised before the lower court (see paragraphs 36-37 above). In addition, it argued that the measures imposed by the CCR were unlawful.

62 . The applicant company also argued that the Court of Appeal’s solution concerning the CCR’s findings on point (iii) of the audit report was lawful. However, the reasons provided by that court for its conclusions in this regard were partly disconnected from the issue in dispute and had to be changed. Only Law no. 164/2018 had introduced an obligation for a customer to return the interest to the State and only for contracts signed since 2017.

63. The applicant company submitted that the Court of Appeal had reached its conclusion concerning the CCR’s findings on point (i) of the audit report by misinterpreting Article 311 § 1 and Article 312 § 1 of the Ordinance and the different terminology contained therein and by ignoring Article 7 § 3 of the implementing rules, which stated that the amounts to be taken into account for the calculation of the bonus consisted of the deposits made by a person during a relevant year. The lower court’s conclusion that none of the fees in question could be classified as savings rendered Article 7 §§ 3, 4 and 6 of the implementing rules illogical.

64 . The applicant company also submitted in this connection that, unlike the CCR, it had interpreted the relevant legal provisions consistently and logically and took the view that the lower court’s interpretation of the legal provisions in question violated the principles of foreseeability and legal certainty.

65 . The applicant company contended that the Court of Appeal had reached its conclusions concerning the CCR’s findings on point (vi) of the audit report by misinterpreting Article 312 §§ 2 and 3 of the Ordinance. Moreover, the court had disregarded Article 311 § 1 of the Ordinance and the relevant provisions of the Civil Code concerning the transfer of contracts. Also, Article 312 § 3 of the Ordinance and the cap imposed by it could only be applied to transferees from the date the transfer had taken effect.

(ii) The Court of Cassation’s judgment

66 . By a final judgment of 21 June 2019 (notified to the applicant company on 18 July 2019) the Court of Cassation quashed the Court of Appeal’s judgment and re-examined the case. The Court of Cassation allowed the applicant company’s appeal in part and quashed the CCR’s findings concerning points (v) and (vi) of the audit report along with the corresponding measures. The court however upheld the CCR’s findings concerning points (i) to (iv) of the audit report along with the corresponding measures.

67 . The Court of Cassation held that the Court of Appeal had provided reasons for its judgment given that the essence of the parties’ dispute was the lawfulness of the measures taken by the CCR and not the applicant company’s actual conduct.

68 . As to the audit report’s findings concerning point (i) above, the Court of Cassation held that the lower court’s conclusions were lawful and based on a correct interpretation of Article 312 § 1 of the Ordinance. Under that provision, Article 311 § 1 of the Ordinance and Article 7 § 3 of the implementing rules, the basis for the calculation of the yearly bonus was the amount saved by a person during a relevant year. That amount consisted of the money left in the person’s account at the end of the year after the applicant company had deducted its fees.

69 . The dispute between the parties concerning the interpretation of the above-mentioned provision was generated by the applicant company’s practice and not by the fact that the provision was unclear or unforeseeable. The applicant company had chosen to deduct fees charged by it from the amounts deposited. It had not charged them separately. If the applicant company had chosen the latter option, the parties’ dispute would no longer exist.

70. The court therefore found that the interpretation of the legal provision in question could not have posed difficulties for the applicant company. The option chosen by the applicant company for charging its fees did not change the fact that the fees constituted money charged for services which did not remain in a person’s account and did not form part of his or her savings.

71. The court held that Article 311 § 1 of the Ordinance and Article 7 § 3 of the implementing rules had to be interpreted in the same manner given that the wording of these provisions referred to the yearly amounts deposited by a person on his or her account as savings and not those deposited as payment for the applicant company’s fees.

72 . The fact that the fees were not specifically excluded by Article 7 § 4 of the implementing rules from the calculation of the bonus had not meant that the fees could be taken into account for the calculation in question. The exceptions provided for in the said Article only concerned funds which in essence could be considered part of a person’s savings. Since this was not the case with the fees in question, a specific reference to fees in this context would have been superfluous.

73 . As regards the audit report’s findings concerning point (ii) above, the Court of Cassation held that the lower court had misinterpreted Article 315 § 1 of the Ordinance and Articles 4 and 5 of the implementing rules.

74. The Court of Cassation held that, under the Ordinance and its implementing rules, the applicant company’s customers could only benefit from the bonus if they had deposited savings with it for a minimum of five years and had not withdrawn any of their savings before the end of the specific saving period stipulated in the agreement. In exceptional circumstances, the applicant company’s customers could benefit from the bonus even if they had withdrawn their savings before the end of the saving period stipulated in the agreement.

75. In all circumstances, however, the applicant company could only release bonuses to its customers if they submitted proof within the relevant statutory time-limit that the funds in question, including the bonuses, were being used for housing-related activities. In circumstances where the customers had withdrawn their savings before the end of the saving period stipulated in the agreement, they had to submit that proof in question immediately and directly to the applicant company. However, in circumstances where customers had withdrawn their savings after the end of the saving period stipulated in the agreement, they had to submit the proof in question within two years from the date the funds were released.

76. The Court of Cassation held that, in the absence of such proof, the applicant company could not release the bonuses and had to return them to the MDRL.

77. The Court of Cassation also held that a joint reading of Article 311 § 3, Article 314 and Article 315 § 1 of the Ordinance indicated that Bauspar savers were only exempted from the requirement to submit proof of use of the bonuses for housing-related activities during the saving period stipulated in the agreement while the relevant funds remained in their accounts.

78 . The court was of the opinion that to hold otherwise would validate the argument that the authorities granted the bonus to encourage saving. Given the specific scope of the applicant company’s activities, the spirit and provisions of the Ordinance and its implementing rules, however, the bonus was offered to encourage the development of the housing market.

79 . The Court of Cassation held that the interpretation of the provisions in question by the Court of Appeal and the applicant company had inverted the provisions and the exceptions by disregarding the whole of Article 315 § 2 of the Ordinance.

80 . As to the audit report’s findings concerning point (iii) above, the Court of Cassation held that the lower court’s conclusion in this regard was ill ‑ founded. The audit report’s findings concerning point (iii) were not connected to those concerning point (ii) and therefore required separate examination.

81. The Court of Cassation held in this connection that it was true that Articles 5 and 9 § 1 of the implementing rules had not imposed an obligation on the applicant company to return the interest in question along with the bonuses. Nevertheless, according to the principle that the accessory follows the principal, the interest had to be returned to the State.

82. Under the relevant provisions of the Civil Code, the applicant company had to return the bonuses to the State if the relevant conditions in this regard were met. Where the latter conditions were met because of actions imputable to it, the applicant company also had to return the interest corresponding to the bonuses in question. The fact that the applicant company’s customers had acted in good faith during the saving period was irrelevant. What was relevant was the applicant company’s own actions. It could not be said that by releasing the bonuses in question and corresponding interest to its customers, even though the lawful conditions for releasing the funds were not met, the applicant company had acted in good faith and was therefore exempted from returning the interest.

83 . The Court of Cassation held that all the arguments raised by the applicant company in this regard therefore had to be dismissed.

84 . As to the audit report’s findings concerning point (iv) above, the Court of Cassation held that the lower court’s assertions in this regard were correct and justified. It found, however, that these assertions were insufficient to quash the measure in question.

85 . The CCR had also relied on another argument to impose the measure, namely that the applicant company had released bonuses to minors and people over 65, and that the latter had used them for purposes other than housing-related activities. The Court of Cassation held that, as already indicated in connection to the audit report’s findings concerning point (ii) above, the applicant company’s customers had to prove that they were using the funds in question for housing-related activities. If they failed to do so, the applicant company had to return the bonuses.

86 . As regards the audit report’s findings concerning point (v) above, the Court of Cassation confirmed the findings of the lower court (see paragraph 57 above).

87 . As regards the audit report’s findings concerning point (vi) above (see paragraph 14 above), the Court of Cassation held that the Court of Appeal’s findings in this regard were ill-founded. The Court of Cassation took the view that only people who opened one or more savings and loan agreements in their own name were concerned by the cap imposed by the Ordinance and its implementing rules on the amount of the bonus that could be released to an individual. This was not the case with transferees. If the lower court’s interpretation of the law was accepted, Article 312 § 3 of the Ordinance would become applicable retroactively and simply erase the benefits gained by transferers, a possibility which was not provided for by law.

88. On 14 April 2022 the applicant company informed the Court that it had lodged extraordinary appeals against the Court of Cassation’s judgment of 21 June 2019, namely an appeal for annulment ( contestaţie ȋn anulare ) and an appeal to review ( revizuire ). Both extraordinary appeals were dismissed by the Court of Cassation on 27 May and 9 November 2021 respectively.

89 . In its application to the Court, the applicant company focused its submissions almost entirely on the CCR’s measures and findings described at points (ii) and (iv) of the audit report. Nevertheless, it also stated, amongst other things, that the Court of Appeal’s judgment of 1 March 2017 had confirmed beyond any doubt that it had acted lawfully in relation to the alleged deficiencies described at points (ii) to (v) of the audit report. The applicant company further stated that the alleged deficiencies described at points (i) and (vi) of the audit report upheld by the Court of Appeal were merely issues of computation and that the related measures had had a much lower impact on it than the other measures.

90 . On 13 January 2020 the applicant company issued a report explaining the development of its activities from October 2015 to December 2019 following the CCR’s audit report. The report stated that in 2016 it had stopped concluding new savings and loan agreements with customers and had drastically diminished its activities and its portfolio of agreements. In addition, it had stopped the activity of 1,132 agencies.

91. Even though it had made a profit from 2010 to 2015, it had suffered significant losses from 2016 to 2018. These losses had been contained because its shareholders had stepped in and provided it with the financial lifeline needed to continue its operations. The applicant company had also lost the trust of its customers and eventually the customers themselves.

92. On 31 August 2021 the CCR issued a report concerning the implementation of its measures (see paragraph 14 above). It held that the applicant company had calculated the amounts due to the State and corresponding penalties arising from points (i) and (iii) of the audit report and had paid a total of RON 50,856,380 (EUR 10,729,194) to the MDRL. However, the applicant company had only calculated the amounts due to the State and corresponding penalties arising from points (ii) and (iv) of the audit report, but had not transferred these amounts to the MDRL.

93 . On 21 and 25 January 2022, respectively, the applicant company paid RON 432,698,573 (EUR 87,590,804) to the MDRL, representing its main financial obligations toward the State arising from points (ii) and (iv) of the audit report and RON 41,603,005 (EUR 8,421,660) to the State budget representing tax due for the bonuses released to its customers unlawfully.

94 . On 11 November 2022 the MDRL notified the applicant company that it had to pay an additional RON 388,918,758 (EUR 79,048,528) within thirty days, representing interest and penalties corresponding to its main financial obligations arising from points (ii) and (iv) of the audit report.

95. The applicant company challenged the above notification before the courts. At the same time, it asked the courts to stay its enforcement. The applicant company’s latter request was dismissed by the Court of Appeal by a judgment of 31 January 2023 which was amenable to appeal.

RELEVANT LEGAL FRAMEWORK

96 . The relevant provisions of Government Emergency Ordinance no. 99/2006 on lending institutions and capital adequacy, as in force at the relevant time, read as follows:

Article 290

“For the purposes of this [Emergency Ordinance] ... the terms ... below have the following meaning:

...

b) customer – a natural or legal person who/which concludes a savings and loan agreement [within the Bauspar system] ... by which that person acquires, because of deposits made in accordance with the agreement, the lawful right to be given a loan at the interest rate stipulated in the agreement;

...”

Article 311

“(1) Every customer [who is a] natural person with Romanian citizenship and permanent residence in Romania shall benefit from a State bonus for annual deposits made based on a savings and loan agreement concluded with a building society.

(2) Entitlement to the State bonus is established at the end of the saving year. The saving year is the calendar year in which the deposits giving entitlement to a ... bonus were made.

...”

Article 312

“(1) The State bonus shall be 25% of the amount saved by the customer in [a] given year.

(2) The State bonus may not exceed the equivalent in [RON] of [EUR] 250 ...

(3) If the customer concludes several savings and loan agreements ... and the calculated ... bonuses [due] exceed the maximum bonus allowed for the saving year, the amount of bonuses [due] shall not exceed the amount provided for in paragraph 2.”

Article 313

“(1) Customers [who are] single, as well as any spouses, separately, regardless of who has made the deposit, are entitled to benefit from the State bonus.

...”

Article 314

“The State bonus shall be paid from the State budget through the budget of the Ministry ... and shall be granted by the latter ..., within a maximum of sixty days from the [day] the building society sent the request to [the Ministry]. The State bonus shall be transferred by the building society to the customer’s account.”

Article 315

“(1) In order to continually benefit from the State bonus, the savings and loan agreements must have a duration of at least five years, without the justification of use of the amounts saved for housing-related activities being necessary, and it is mandatory that no total or partial repayments of the amounts saved have been made before the end of the set saving period.

(2) Paragraph 1 shall not apply to the following situations:

a) where the amount saved and/or the contracted amount is made available after allocation, and the [person] who has saved uses the amount received for housing-related activities;

...”

Article 316

“Customers who have received the ... bonus in violation of the provisions of this Emergency Ordinance or its implementing rules shall return [the bonus] to the Ministry ... within a maximum of ninety days from [the date] they have received it.”

Article 317

“The procedure for granting the State bonus shall be established by the Ministry of ... Finance and the Ministry ... through implementing rules approved by a joint order.”

97 . The relevant provisions of the implementing rules of Government Emergency Ordinance no. 99/2006, issued jointly by the MFP and the MDRL on 10 July 2009, read as follows:

Article 1

“...

(4) The building society shall include clauses in the savings and loan agreement concerning:

...

b) the [customer’s] authorisation for the building society to claim the State bonus on [his or her] behalf.

...”

Article 3

“(1) A building society customer shall benefit from the State bonus annually, provided that [he or she] has concluded a savings and loan agreement of a duration of at least five years, without the justification of use of the amounts saved for housing-related activities being necessary, and that no partial or total repayments of the amounts saved have been made at the request of the customer before the end of the saving period.

(2) By way of exception to paragraph 1, customers whose savings are repaid before the end of the saving period specified in the savings and loan agreements shall benefit from the State bonus ... in the following situations:

a) the amount saved and/or the contracted amount is made available after allocation, and the [person] who has saved uses the amount received for housing-related activities;

...

(3) The State bonus shall only be made available to the ... [agreement] holder ... after the building society has verified that the conditions for granting [it] have been met ...”

Article 4

“(1) In the circumstances provided for in Article 3 § 2 (a), the ... agreement holder shall prove, with supporting documents, [that] the saved amount and/or the contracted amount made available [to him or her], after allocation, immediately and directly, [is being used] only for housing-related activities, in accordance with the relevant legal provisions and the annex to these implementing rules ...”

Article 5

“(1) Use of the amount saved for housing-related activities shall be proven by the customer ... to the building society, within two years from the date one of the following operations [has taken place]: payment of the saved balance ...

(2) If use of the amounts for housing-related activities is not proven by the building society customer, under the conditions of Article 4 and within the time-limit provided for in paragraph 1, the State bonus shall not be made available to the customer and shall be returned to [the MDRL].

...”

Article 7

“(1) Entitlement to the State bonus is established at the end of the saving year. The saving year is the calendar year in which the deposits giving entitlement to a ... bonus were made. The ... bonus may be requested from [the MDRL] as follows:

a) the customer shall send a written request to the building society to this effect;

b) the building society shall claim the State bonus on the customer’s behalf based on the authorisation given by the customer in accordance with Article 1 § (4) (b) ...

(2) ..., the building societies shall calculate the State bonuses for all the customers entitled to receive a ... bonus, on the basis of the amounts saved ...

(3) The amounts to be taken into account for the calculation of the ... bonus are the deposits made during the year for which the ... bonus is being granted.

(4) When calculating the ... bonus, the following shall not be taken into account:

a) amounts granted as ... bonuses;

b) interest related to amounts saved in accordance with the savings and loan agreement;

c) deposits exceeding the total value of the savings and loan agreement.

(5) The State bonus shall be paid from the State budget through the budget of [the MDRL] ...

(6) After the end of the calendar year, but no later than 31 January of the following year, the building societies shall communicate the following information to [the MDRL] electronically:

a ) the number of the savings and loan agreement;

b) the date of signature;

c) the name ... of the holder of the savings and loan agreement;

d) the personal identification number of the holder of the ... agreement;

e) the deposits made during the year corresponding to the State bonus;

f) the amount of the ... bonus, according to the calculations made by the building society.”

Article 9

“(1) If, through its own means or from the communication of a third party, the building society finds that the granting of a State bonus is unjustified or the State bonus was not allocated in the amount provided for by law, the building society shall make the necessary corrections. If the savings and loan agreement has ceased [to exist] and the State bonus was not recovered during [the period of validity of the agreement], the building society shall inform [the MDRL] and take all measures for the return of the State bonus received unlawfully by the beneficiary ...

...

(4) The building society is liable as guarantor, along with the customer who unlawfully received a ... bonus. The building society shall return to [the MDRL] the State bonuses paid unlawfully and corresponding penalties, calculated at the level of those for the late payment of budgetary obligations ...”

98 . On 22 July 2018 some of the relevant provisions of Government Emergency Ordinance no. 99/2006 were amended by Law no. 164/2018. The Law expressly stated, however, that ongoing savings and loan agreements continued to be governed by the legal provisions in force at the time when they were concluded.

COMPLAINTS

99 . The applicant company complained under Article 6 of the Convention of a violation of its right to a fair hearing because the CCR had lacked impartiality. It further complained that the Court of Cassation had failed to examine some of the essential arguments and evidence submitted by it and to provide reasons for its judgment. Lastly, it complained that the Court of Cassation’s interpretation of the Ordinance and the implementing rules by which it had upheld the CCR’s measures had lacked clarity and violated the principle of legal certainty.

100. The applicant company complained under Article 1 of Protocol No. 1 to the Convention that the national authorities had interfered with its right to the peaceful enjoyment of its possessions. It submitted that the interference had not been provided for by law and had been based on a law which was neither foreseeable nor precise. Moreover, it had given rise to an interpretation of the relevant legislation by the CCR and the Court of Cassation which had been unforeseeable and had caused divergence in the existing well-established administrative and judicial practice, disclosed inconsistencies, delays and incoherence in the authorities’ actions and imposed a direct and disproportionate burden.

101. The applicant company complained under Article 1 of Protocol No. 12 to the Convention that the requirement imposed on it by the Court of Cassation’s interpretation of the Ordinance and its implementing rules, namely that its customers had to meet certain age requirements, had not been provided for by law and had been discriminatory.

THE LAW

102 . The Court notes at the outset that the applicant company’s submissions, both at the application stage and at the subsequent stages of the proceedings, were almost entirely focused on the measures imposed on it by the CCR in points (ii) and (iv) of the audit report and the underlying reasons for those measures (see paragraphs 89 above and 115 below). Nevertheless, the Court also notes that some of the applicant company’s submissions suggest that it viewed the other measures imposed on it by the CCR to also be detrimental to it and its business, albeit to a lesser extent for some of them (see paragraph 89 above).

103. The Court notes that the CCR’s audit report imposed six different measures on the applicant company (see paragraph 14 above). Four of them, namely those described at points (i) to (iv) of the audit report, were eventually upheld by the Court of Cassation which dismissed the applicant company’s claim that these measures were unlawful (see paragraphs 68-85 above), whereas the remaining two, namely those described at points (v) and (vi) of the report, were quashed (see paragraphs 86-87 above). The applicant company was thus obliged to implement the measures described at points (i) to (iv) and released from any obligation to implement the measures described at points (v) and (vi).

104 . Given the context, the Court considers it appropriate to examine the case only in the light of the measures (i) to (iv) which were imposed on the applicant company by the CCR and upheld by the Court of Cassation.

105. The applicant company complained of a violation of its right to a fair hearing. It relied on Article 6 of the Convention, the relevant part of which reads as follows:

“In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by an independent and impartial tribunal established by law.

...”

106 . The Government argued that Article 6 was not concerned with errors of interpretation of domestic law and that the applicant company’s case did not concern a divergence in the case-law of the national courts within the meaning of the Court’s case-law. In any event, the Court had acknowledged that divergent case-law was inherent to any judicial system and that this in itself could not violate the rights protected by the Convention or the principle of legal certainty. Moreover, the Court of Cassation’s judgment of 21 June 2019 had not been arbitrary given that that court had examined in detail all the arguments raised by the applicant company and provided sufficient, clear and consistent reasons for its judgment in line with the scope and spirit of the law in question and its judgment of 26 November 2020 dismissing the proceedings brought by building society A. against the CCR’s audit report concerning that company (see paragraph 25 above). Furthermore, the national legal system provided for a legal mechanism capable of eliminating any divergent interpretations of the law, namely the extraordinary remedy of an appeal in the interests of the law.

107 . The applicant company argued that neither the CCR nor its appeal commission had complied with the guarantees of judicial impartiality. Moreover, the Court of Cassation’s judgment of 21 June 2019 had been arbitrary and unreasonable, had violated the principle of legal certainty and had amounted to a denial of justice, as that court had ignored or failed to provide compelling reasons for dismissing the arguments and evidence submitted by the applicant company pointing, for example, to the specifics of the Bauspar system and the explanations provided by the explanatory memorandum to Law no. 164/2018. Furthermore, the Court of Cassation had failed to provide reasons for rejecting the lower court’s findings concerning the measure described in point (iv) of the audit report, had distorted the meaning of Article 315 §§ 1 and 2 of the Ordinance and had reached an illogical conclusion in this regard. Also, the Government’s argument that the case-law of the national courts was consistent with regard to the interpretation of Article 315 of the Ordinance was contradicted by several final domestic judgments delivered from 9 May 2019 onward.

108. The Court notes that the applicant company’s challenge against the CCR’s audit report and decisions was examined by the national courts and that the applicant had the benefit of adversarial proceedings. In the course of these proceedings it had an opportunity to adduce evidence and raise all the arguments it considered relevant for the case, including its argument concerning the alleged lack of impartiality of the CCR and its bodies, which it apparently failed to raise. In so far as the applicant company raised the arguments and complaints described in paragraphs 99 and 107 above before the Court of Cassation, that court took them into account, examined the applicant company’s case and provided detailed reasons for its judgment.

109. The Court notes that the Court of Cassation’s conclusions and its interpretation of the relevant law cannot be regarded as manifestly arbitrary or unreasonable or, as the applicant company claimed, a denial of justice.

110 . The Court also notes that in raising its complaint before the Court about an apparently divergent domestic practice concerning the interpretation of some of the provisions of the Ordinance, in particular Article 315, the applicant company relied on final judgments delivered by the national courts from 19 May 2019 onwards, that is little more than a month before the Court of Cassation delivered its final judgment of 21 June 2019 in the applicant company’s case. Given the context, the Court is not persuaded that the alleged differences in the case-law of the national courts relating to the interpretation of Article 315 of the Ordinance were “profound and long-standing” withing the meaning of the Court’s case-law (see Lupeni Greek Catholic Parish and Others v. Romania [GC], no. 76943/11, § 116, 29 November 2016). It follows that the first of the criteria, which guide the Court in its assessment of the circumstances in which contradictory decisions by different domestic courts ruling at final instance entail a violation of the right to a fair hearing, is not met and it is therefore not necessary to examine the other criteria.

111. As to the applicant company’s complaints relating to an alleged failure by the Court of Cassation to provide any reasons for rejecting the lower court’s findings concerning the measure described at point (iv) of the audit report or to examine arguments and evidence submitted by it, such as those concerning the explanations provided by the explanatory memorandum to Law no. 164/2018, the Court notes that they are closely connected to its complaint under Article 1 of Protocol No. 1 below. In the light of its findings below (see paragraphs 131-139 below), it considers that the Court of Cassation provided reasons for its judgment which do not appear arbitrary or manifestly unreasonable (see paragraph 136 below).

112. It follows that the applicant company’s complaint under Article 6 is manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention and must accordingly be rejected pursuant to Article 35 § 4.

113 . The applicant company complained that the national authorities had violated its right to the peaceful enjoyment of its possessions. It relied on 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.”

114. The Government argued that the applicant company had not had a “possession” within the meaning of the Court’s case-law given that the Court of Cassation had interpreted the Ordinance as imposing an obligation on it to withhold the State bonuses from its customers unless they had submitted proof that the funds were being used for housing-related activities. In addition, the applicant company could not claim to have had a legitimate expectation of obtaining an asset when there was controversy about how the relevant legislation should be interpreted, and the Court of Cassation had dismissed its arguments in this regard. Furthermore, as the applicant company’s proprietary interests had not been affected because of a specific legal act, it could not be said that there had been a sufficient legal basis for its claim, and Article 1 of Protocol No. 1 to the Convention did not guarantee a right to acquire possessions.

115 . Referring almost entirely to the measures described at points (ii) and (iv) of the audit report and the underlying reasons for those measures, the applicant company argued that even though it had not been the beneficiary of the State bonus, it had nevertheless been the holder of several possessions within the meaning of the Convention. These included its business, its customers and the agreements concluded with them, its own funds that it had used to repay the State and its own goodwill.

116. From 2008 to 2015 it had built an entire business (see paragraph 12 above). In December 2015 it had had sixty-eight employees, a network of 1,132 sales agents and at least a legitimate expectation that it could continue to carry out its activities without any unforeseen or disproportionate interference from the authorities. However, the measures imposed on it by the CCR had jeopardised its business and undermined its well-intentioned conduct, reputation and relationship with its customers.

117. Its business had been blocked because, even though the enforcement of the measures had been stayed, it had been forced to stop concluding new savings and loan agreements pending clarification of the matters in dispute to mitigate the risks associated with new contracts. In addition, it had been forced to freeze the release of all funds already transferred to it by the MDRL and to borrow money from its shareholders to be able to actually release the bonuses due to its customers and protect them. Eventually, the authorities had forced it under threat of criminal sanctions to use its own funds to return to the MDRL the bonuses that it had released to its customers and pay the required tax on those funds and corresponding penalties.

118. No transitional measures had been considered or taken by the CCR or the other authorities to alleviate the impact of the measures on its activity. It had been able to withstand the shock of the measures because its shareholders had stepped in and helped.

(a) General principles

119 . The Court reiterates that the concept of “possession” within the meaning of Article 1 of Protocol No. 1 has an autonomous meaning which is not limited to ownership of material goods and is independent from the formal classification in domestic law: certain other rights and interests constituting assets can also be regarded as “property rights”, and thus as “possessions” for the purposes of this provision (see Depalle v. France [GC], no. 34044/02, § 62, ECHR 2010, and Čakarević v. Croatia , no. 48921/13, § 50, 26 April 2018).

120 . Although Article 1 of Protocol No. 1 applies only to a person’s existing possessions and does not create a right to acquire property, in certain circumstances a “legitimate expectation” of obtaining an asset may also enjoy the protection of Article 1 of Protocol No. 1 (see Anheuser-Busch Inc. v. Portugal [GC], no. 73049/01, § 65, ECHR 2007-I, and Béláné Nagy v. Hungary [GC], no. 53080/13, § 74, ECHR 2016).

121 . A legitimate expectation must be of a nature more concrete than a mere hope and be based on a legal provision or a legal act such as a judicial decision. The hope that a long-extinguished property right may be revived cannot be regarded as a “possession”; nor can a conditional claim which has lapsed as a result of a failure to fulfil the condition. Furthermore, no “legitimate expectation” can be said to arise where there is a dispute as to the correct interpretation and application of domestic law and the applicant’s submissions are subsequently rejected by the national courts. The mere fact that a property right is subject to revocation in certain circumstances does not prevent it from being a “possession” within the meaning of Article 1 of Protocol No. 1, at least until it is revoked (see Béláné Nagy , § 75, and Čakarević , § 52, both cited above).

122. The Court reiterates that in each case the issue that needs to be examined is whether the circumstances of the case, considered as a whole, conferred on the applicant title to a substantive interest protected by Article 1 of Protocol No. 1 (see Depalle , § 62, and Čakarević , § 53, both cited above).

(b) Application of these principles in the instant case

123 . The Court refers to its findings in paragraphs 102-104 above.

124. It will therefore examine whether the circumstances of the case relating to measures (i) to (iv) fall within the scope of Article 1 of Protocol No. 1.

125. The question whether the applicant company’s right to peaceful enjoyment of its possessions is engaged as a result of the four measures imposed on it must be assessed with a view to the fact that, between July 2008 and October 2015, it managed for and released to its customers State bonuses which it claimed and received on their behalf from the MDRL. Those bonuses were a special financial benefit provided by the State through the applicant company to its customers in order to stimulate participation in the Bauspar system (see paragraphs 10-11 above) with the aim of developing the housing market (see paragraph 78 above). The applicant company, being one of the two banks authorised to operate as a building society (see paragraph 7 above) had built up its business based on this system.

126. In other words, the applicant company’s business and related elements – which the Government did not contest that the applicant had obtained effective enjoyment of by October 2015 – were intrinsically linked to and depended on the regular disbursement of public funds by the MDRL and the release of those funds by the applicant company to its customers. In October 2015, however, the domestic authorities found that the applicant company had calculated, claimed, managed and released the State bonuses unlawfully and ordered it to refund the respective bonuses and pay the corresponding penalties (see paragraphs 14-27 above).

127. The Court therefore finds that in the present case the issue of whether Article 1 of Protocol No. 1 is applicable ratione materiae should be analysed by considering whether, in the above-mentioned specific circumstances, the applicant company can be said to have had a legitimate expectation, within the autonomous meaning of the Convention (see paragraphs 120-121 above), of its customers being able to retain the State bonuses already claimed from the MDRL and released or pending release to them and/or the interests associated thereto and therefore of it being able to continue to conduct its business, with all the related advantages, without its customer’s entitlement to the funds managed and released by it in the past being called into question retrospectively.

128. The Court notes that the manner in which the applicant company calculated, claimed, managed and released the State bonuses depended on various statutory conditions, the assessment of which appears to have been the joint responsibility of the applicant company and the MDRL or other relevant administrative authorities (see paragraphs 14, 31, 34, 37 and 97 above). The MDRL continued to accept the applicant company’s claims for the transfer of the bonuses in dispute and to make the respective payments, and neither the MDRL nor the other relevant administrative authorities responsible for the applicant company’s supervision indicated prior to October 2015 that its practices concerning the State bonuses were unlawful (see paragraph 34 above).

129. The Court has held that, as a rule, a legitimate expectation of being able to continue having peaceful enjoyment of a possession must have a “sufficient basis in national law” (see Depalle , cited above, § 63). It has, however, also held that the fact that the domestic laws of a State do not recognise a particular interest as a “right” is not always decisive, in particular in circumstances where the lapse of time justifies concluding that the individual’s interest in the “status quo” had become vested in a sufficiently established manner for being recognised as capable of engaging the application of Article 1 of Protocol No. 1 (see Čakarević , cited above, § 57).

130. The Court reiterates also that an individual should in principle be entitled to rely on the validity of a final, or otherwise enforceable, administrative decision in his or her favour, and on the implementing measures already taken pursuant to it, provided that neither the beneficiary nor anyone on his or her behalf has contributed to such a decision having been wrongly made or wrongly implemented. Thus, while an administrative decision may be subject to revocation for the future , an expectation that it should not be called into question retrospectively should usually be recognised as being legitimate, at least unless there are weighty reasons to the contrary in the general interest or in the interest of third parties (see Čakarević , cited above, § 56, and compare Pressos Compania Naviera S.A. and Others v. Belgium , 20 November 1995, §§ 34 and 39, Series A no. 332, and Kopecký v. Slovakia [GC], no. 44912/98, § 47, ECHR 2004 ‑ IX).

131 . In the present case, the Court notes that the applicant company obtained a licence to operate as a building society in 2008 (see paragraph 7 above) and there is no reason to believe that at the time of its application for the licence or shortly thereafter it was unaware that building societies were legally required to calculate, manage, claim or release the State bonuses under the supervision of the relevant administrative authorities (see paragraphs 96 ‑ 97 above).

132. Under the relevant legal provisions and principles in force at the time the applicant company was licenced to operate or which entered into force within a year of that time, it was or should have been foreseeable to it that it and its customers were jointly liable to refund with retroactive effect all bonuses calculated, claimed or released by it and that it had to pay the corresponding penalties in the event that the authorities found that the manner in which it had discharged its obligations related to the bonuses in question was unlawful (see paragraphs 80-83 and 96-97 above).

133. The Court notes that neither the Ordinance nor its implementing rules contained any provisions that could have led the applicant company to believe that, under domestic law, it or its business was protected against possible recovery by the authorities of the bonuses already transferred to it or released to its clients, or of the corresponding penalties. Indeed, none of the national courts which examined its case pointed to such a legal provision or considered that it enjoyed such protection.

134. Having regard to the above, the Court finds that the applicant company must have been aware that all its operations and gains related to the bonuses and, ultimately, its ability to continue to conduct its business and to receive the related advantages depended on the lawfulness of its actions, in the absence of which they could have been affected with retroactive effect.

135. The Court notes that the authorities seem to have lacked any reaction to the applicant company’s actions and business practices from July 2008 to October 2015. The Court reiterates, however, that the absence of any reaction from the State authorities over a certain period of time should not have been understood by the applicant company as meaning that proceedings for the recovery of the State bonuses and the corresponding penalties could not be brought against it (see, mutatis mutandis , Alif Ahmadov and Others v. Azerbaijan , no. 22619/14, § 44, 4 May 2023), along with all their corresponding implications for the applicant company’s enjoyment of its business.

136 . The Court further notes in this connection that in their decisions and judgments against the applicant company, the national authorities considered it to be responsible for the situation, pointing to its misleading conduct and calling into question both its business practices and its good faith (see paragraphs 27, 69-72 and 80-83 above). The applicant company defended itself against these allegations by relying on arguments which in effect claimed that the relevant provisions of the Ordinance and its implementing rules lacked clarity and foreseeability (see paragraphs 37-38 and 61-65 above). However, the national courts examined its arguments in this regard and dismissed them, providing reasons which do not appear arbitrary or manifestly unreasonable (see paragraphs 44-45 and 69 above).

137. The Court reiterates that it is sensitive to the subsidiary nature of its role and that it cannot act as a court of fourth instance and review the choices of the domestic courts concerning the interpretation of legal provisions and the inconsistencies that may result, nor intervene simply because there have been conflicting court decisions. For the Court, where there is no evidence of arbitrariness, examining the existence and the impact of such conflicting decisions on the applicants’ Article 6 rights or on their property rights does not mean examining the wisdom of the approach the domestic courts have chosen to take. Therefore, even though the interpretation made by the relevant domestic courts was unfavourable to the applicant company, the effects of such an interpretation cannot be regarded, in itself, as incompatible with the Convention (see, paragraph 110 above; see also Petrescu and Others v. Romania (dec.), nos. 31390/18 and 9 others, § 70, 7 March 2023, with further references). This is all the more so given that the available evidence points to the fact that the Court of Cassation essentially also confirmed the national authorities’ and its own position in its judgment concerning building society A. (see paragraph 106 above).

138. In the light of the above, the Court finds that, in the particular circumstances of the applicant company’s case (see paragraph 136 above), it could not have expected that its customers’ presumed entitlement to the funds or interest released or pending release to them and, ultimately, its ability to continue enjoying its business and the corresponding advantages could not be called into question retrospectively (contrast Čakarević , cited above, §§ 58 ‑ 64, and Romeva v. North Macedonia , no. 32141/10, §§ 43-44, 12 December 2019).

139 . It follows that the applicant company’s complaint is incompatible ratione materiae with the provisions of Article 1 of Protocol No. 1.

140. Relying on Article 1 of Protocol No. 12 to the Convention, the applicant company complained that the requirement imposed on it by the Court of Cassation’s interpretation of the Ordinance and its implementing rules, namely that its customers had to meet certain age requirements, had not been provided for by law and had been discriminatory.

141. The Court has examined the complaint as submitted by the applicant company. However, having regard to all the material in its possession, and in so far as it falls within its jurisdiction, the Court finds that it does not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols.

142. It follows that this part of the application must be rejected as being manifestly ill-founded, 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 11 January 2024.

Ilse Freiwirth Gabriele Kucsko-Stadlmayer Deputy Registrar President