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).
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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

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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

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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

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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.

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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

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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 days in 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

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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 SA1. 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 SA2. 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 contract at 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.

1. http://curia.europa.eu/juris/document/document.jsf;jsessionid=360C9961AE5ABA7FD3
AE879B45E03FD7?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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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

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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

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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

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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.

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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

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 BRĂDĂȚEANU AND OTHERS v. ROMANIA DECISION

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, and Ali v. Georgia (dec.),
no. 41710/05, 12 June 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

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 BRĂDĂȚEANU AND OTHERS v. ROMANIA DECISION

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
Romanian
3 Aurelia EISSENGARTHEN 21/03/1977 and Morfelden-walldorf
German
4 Ștefan IONESCU 05/09/1976 Romanian Pitești
5 Marcel TĂNASE 09/04/1972 Romanian Constanța

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