CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 17 mars 2015

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border:0.75pt solid #949494; padding:1.02pt 5.03pt; vertical-align:top } .s4F53E219 { width:13.6%; border:0.75pt solid #949494; padding:1.02pt 5.03pt; vertical-align:top } .sEA39543F { width:17.6%; border:0.75pt solid #949494; padding:1.02pt 5.03pt; vertical-align:top }   THIRD SECTION DECISION Application no. 47315/13 Stefania ADORISIO and others against the Netherlands and 2 other applications (see list appended) The European Court of Human Rights (Third Section), sitting on 17   March 2015 as a Chamber composed of:   Luis López Guerra, President,   Ján Šikuta,   Dragoljub Popović,   Kristina Pardalos,   Johannes Silvis,   Valeriu Griţco,   Iulia Antoanella Motoc, judges, and Stephen Phillips, Section Registrar, Having regard to the above applications lodged on 10 July 2013, 26   July   2013 and 24 July 2013 respectively, Having regard to the decision of 14 January 2014, 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. The Netherlands Government (“the Government”) were represented by their Agent, Mr R.A.A. Böcker, of the Ministry of Foreign Affairs. 2.     The facts of the case, as submitted by the parties, may be summarised as follows. A.     Introduction 3.     Before the events complained of, the applicants variously held shares or subordinated bonds (the latter under diverse designations) issued by SNS Reaal N.V. (hereafter “SNS Reaal”), a public limited company ( naamloze vennootschap , “N.V.”) incorporated under Netherlands law, or one or more of its subsidiaries. 4.     SNS Bank N.V. (“SNS Bank”) was, and is, a high-street retail bank. It was a subsidiary of the holding company SNS Reaal N.V. Another subsidiary of that holding company was Reaal N.V., an insurance company. SNS Bank N.V.’s own subsidiaries included ASN Bank N.V., RegioBank N.V. and SNS Property Finance B.V., a private limited company ( besloten vennootschap , “B.V.”). 5.     From 2008 onwards the financial position of certain companies within the SNS Reaal group deteriorated. By 2012 the Netherlands central bank ( De Nederlandsche Bank N.V. , “DNB”) was concerned about the conglomerate’s financial health to the point that it decided to seize the Minister of Finance ( Minister van Financiën ) of the situation. 6.     Reports relevant to the case were presented on 31 October 2012 by Ernst & Young, a firm of accountants, and on 14 December 2012 by Cushman & Wakefield, a real estate services firm (a supplement to the latter was presented on 20 December 2013). SNS Bank had full access to the report by Cushman & Wakefield. Copies of the two reports submitted by the applicants have parts blacked out. It would appear that these documents were not released to the applicants complete at any relevant time. B.     The expropriation proceedings 1.     DNB’s letter to the Minister of Finance 7.     On 24 January 2013 DNB wrote to the Minister of Finance in the following terms (footnotes omitted): “ 1.     Introduction On 18 January 2013 DNB sent the outcome of the Supervisory Review and Evaluation Process (SREP) to SNS Bank N.V. (SNS Bank) in the form of an intended SREP decision. In this intended decision ... DNB notes a capital shortage of at least 1,9 billion euros (EUR) and states its intent to impose on SNS Bank the measure of having to supplement its core capital by at least EUR 1.9 million no later than 31   January 2013 at 6 p.m., or at least to present, no later than 31 January 2013 at 6   p.m., a final solution which, in the considered view of DNB, has sufficient prospects of success and which will, in the short term, lead to the actual supplementing of the said capital shortage. If SNS Bank should prove unable sufficiently to strengthen its capital position in time, DNB, according to its statement of intent, will consider it irresponsible for SNS to continue banking and DNB will make use of its powers under the Financial Supervision Act ( Wet op het financiëel toezicht ). SNS Bank has until noon on 24 January 2013 to state its views; DNB will come to a final decision as soon as possible thereafter, taking these views into account. If these views should provide any new insight, then DNB will inform your ministry accordingly as soon as possible. In the event that DNB in its final SREP decision imposes on SNS Bank the measure referred to in its intended decision and SNS Bank does not comply with the measure thus imposed within the time-limit set, DNB considers it irresponsible for SNS Bank to continue banking. In addition, in the absence of a convincing and final solution it would appear impossible to publish by 14 February 2013 provisional annual accounts drawn up on the basis of continuity. In view of the expectations raised as regards an overall solution, postponing the publication of annual accounts without announcing an overall solution for SNS Reaal will mean further undermining confidence in SNS Reaal. DNB considers this irresponsible from the point of view of financial stability, also in the light of the increasing flow of publications in the media on the vulnerable position of SNS Reaal and the resulting outflow of funds. Since SNS Bank is a system-relevant institution ( systeemrelevante instelling ), the threat of insolvency of SNS Bank (and therefore that of the entire concern) will mean that the stability of the financial system is in serious and immediate danger. DNB therefore advises you to make preparations to enable the use of your powers under part 6 of the Financial Supervision Act immediately after the lapse of the time-limit in a final SREP-decision if and in so far as one is taken, or even sooner if the situation should so require. In view of the seriousness of the situation and the speed of the developments, DNB considers it important to send you this informative letter – based on section 6:5 of the Financial Supervision Act – already now. Paragraph 2 of this letter provides background information relating to the situation of the institution and the supervisory approach adopted by DNB. Paragraph 3 explores financial stability as the guiding point of departure in seeking a solution. Paragraph 4 provides an overview of the solutions examined and the reasons why, as it appears at present, these are not achievable. Paragraph 5 makes a few closing remarks. 2.     Background ... After a broad survey of possible avenues for a solution by a joint working group, there have been intensive discussions with the Ministry of Finance and market parties about a plurality of (variants of) solutions. In its role as supervisor and co-responsible party for the stability of the financial system, DNB has played an initiating and active role in this process of negotiation. With the help of external advisors, a solution has been sought which comes as close as possible to meeting the following basic criteria: SNS Bank’s system relevance means that guaranteeing the stability of the financial system comes first; The private sector should be involved as much as possible to limit the financial consequences for the State as much as possible; Wherever possible, losses should be borne by SNS Reaal’s current risk-bearing financiers (burden sharing). This point of departure not merely limits the financial consequences for the State, but also serves the stability of the financial system in the long term; The intention to forestall an emergency situation; It is self-evident that any solution – involving State support – should in addition be assured of the approval of the European Commission (EC), be structural in character, and be proportionate. 3.     Financial stability In DNB’s considered view it is not only SNS Bank’s continuity which is of importance for the financial system, but also that of the holding SNS Reaal. SNS Bank’s insolvency will have serious consequences for the stability of the financial system because of (i) the costs involved in the implementation of the deposit guarantee scheme, (ii) loss of confidence in other Netherlands financial institutions and (iii) the consequences for account holders and the attending unrest. DNB has described these factors in its letter of 2 October 2012, in which it is explained that DNB considers the estimated eventual cost flowing from the implementation of the deposit guarantee scheme irresponsibly high, seen also in the light of the general scarcity of capital and the desire of the markets for the anticipated application of Basle   III [a voluntary regulatory standard on bank capital requirements, now due to enter into force in 2018] (argument i). In order to supplement these arguments, communicated to your Ministry earlier, DNB points to the following factors: The uncertainty as to the possibility for banks to recover against the estate of SBS bank if the deposit guarantee system is implemented. Since EUR 35 billion of the deposits guaranteed by that scheme are held by SNS Bank, claims would be in the order of greatness of EUR 10 billion per major Netherlands bank. A situation in which other Netherlands banks have major claims against the estate of SNS Bank and in which it is uncertain to what extent these will be met in itself undermines the health of, and therefore confidence in, these banks. Further splitting up SNS Bank into separate parts is not a realistic option. This is caused, in particular, by the interrelation of subsidiaries RegioBank and ASN Bank with their parent SNS Bank as regards operations and IT; these subsidiaries use the same infrastructure with their own labels. There is also considerable financial interrelation between ASN Bank and SNS Bank: savings from ASN Bank are used to finance credit (mortgages) provided by SNS Bank. Because of these interrelations any insolvency of the parent bank will in practice include that of the subsidiaries and vice versa. Any insolvency of SNS Bank will in addition probably lead to loss of confidence in its subsidiaries as well. SNS Bank, ASN Bank and RegioBank hold approximately one million current accounts and one and a half million savings accounts, with a total credit balance of approximately EUR 36.4 billion. At least EUR 500 per month is paid into approximately two thirds of the current accounts, which is an indication that these accounts play an important role in the financial transactions of individuals. Consequently all sorts of practical problems [ sic ] resulting from any insolvency of SNS Bank, such as cashpoints breaking down or standing orders being stopped, will have enormous social effects [ sic ]. ... 5.     Conclusion ... [It would appear], at this moment, that nationalisation of the conglomerate as a whole is the only remaining solution for SNS Reaal. For a decision to expropriate to be taken, there has to be a situation of ‘serious and immediate danger to the stability of the financial system’. As has been observed in the introduction to this letter, DNB considers it irresponsible for SNS Bank to continue banking in the event that DNB in its final SREP-decision imposes on SNS Bank the measure referred to in its intended decision and SNS Bank does not comply with the measure thus imposed within the time-limit set. In the considered view of DNB the above-mentioned legal criterion for nationalisation will then have been met. Should you decide not to proceed with nationalisation, DNB, as the responsible supervisor, would be compelled to seek an emergency arrangement, which would mean implementing the deposit guarantee system. An emergency situation is therefore imminent. In the introduction to this letter attention has been drawn to the danger of loss of confidence as a result of any postponement of publication of the annual accounts without announcing an overall solution for SNS Reaal. There is already a loss of confidence, which has manifested itself in an outflow of funds in an amount of approximately EUR 1.4 million since the reports of 16 January 2013 about the position taken by the EC in this case; actually, if it had not been for public confidence in the safety net provided by the State the outflow would probably have been considerably greater. In addition to publication of the annual accounts without announcing an overall solution DNB notes other events that could be the beginning of an emergency situation. In the first place, DNB cannot allow Reaal and/or SNS Bank to increase lending to the holding SNS Reaal with which to repay external financing that will end in March. Absent any other funding possibilities this is expected to cause the holding to be unable to make further payments. In addition, if no solution is found, then SNS Bank, owing to its very weak capitalisation and the negative developments in this respect, would run the risk of no longer having access to the European Central Bank’s facilities. This, combined with the outflow of funds that has already occurred, could cause SNS immediate liquidity problems. On the above grounds, DNB advises you to make preparations to enable the use of your powers under part 6 of the Financial Supervision Act immediately after the expiry of the time-limit in a final SREP decision if and in so far as one is taken, or even sooner if the situation should so require.” This letter was at the time classified confidential. It has since been made available to the public. 2.     The SREP decision 8.     On 27 January 2013 DNB, after SNS Bank had stated its views, gave a decision (the “SREP decision”) which, as relevant to the case before the Court, was in the following terms: “ 6.     Decision SNS Bank shall supplement its core capital by no less than EUR 1.84 billion no later than 31 January 2013 at 6 p.m., or in any case SNS Bank shall, no later than 31   January 2013 at 6 p.m., present a final solution which, in the considered view of DNB, offers sufficient prospects of success, it being required, at least, that all the parties involved shall demonstrably have committed themselves to the solution presented, and which solution shall lead to the actual supplementing of the said capital shortage in short order. 7.     Final remarks Only if the decision set out in paragraph 6 has been fulfilled will it be possible for DNB to conclude that SNS Bank’s established capital ( toetsingsvermogen ) guarantees controlled and durable cover of its risks. If SNS Bank should prove unable to strengthen its capital position sufficiently and in time, DNB considers that it is irresponsible for SNS Bank to continue banking and DNB will make use of its powers under the Financial Supervision Act. ...” 3.     The expropriation decree 9.     On 1 February 2013 the Minister of Finance issued the following decree (Official Gazette ( Staatscourant ) 1 February 2013, no. 3018, translation published by the Government): “The Minister of Finance, acting in agreement with the Prime Minister, Minister of General Affairs; Having regard to Sections 6:1(1), 6:2(1), (4) and (5), and 6:4(1) and (2) of the Financial Supervision Act; Having consulted [DNB]; DECREES as follows: Article 1 1.     The following securities, issued by or with the cooperation of the public limited company ( naamloze vennootschap ) SNS REAAL N.V. or, respectively, the public limited company SNS Bank N.V., both having registered offices at Utrecht, shall be expropriated for the benefit of the State of the Netherlands: a.     all two hundred and eighty-seven million six hundred and nineteen thousand eight hundred and sixty-seven (287,619,867) issued shares of the class Ordinary shares in the share capital of SNS REAAL N.V., ISIN code NL0000390706; b.     all six (6) issued shares of the class Shares B in the share capital of SNS REAAL N.V.; c.     all other issued shares in the share capital of SNS REAAL N.V.; d.     all issued shares in the share capital of SNS Bank N.V. held by others than SNS REAAL N.V. or its group companies; e.     all four million three hundred and fifty thousand (4,350,000) Stichting Beheer SNS REAAL Core Tier 1 capital securities issued by SNS REAAL N.V.; f.     all subordinated bonds issued by SNS REAAL N.V. that belong to the following series: 1 o .     EUR 350 million 6.258% Fixed/Floating Rate Hybrid Capital Securities issued under SNS REAAL N.V.’s EUR 2,000,000,000 Debt Issuance Programme of 13 July 2007, ISIN code XS0310904155; 2 o .     EUR 100 million 8.45% Fixed/Floating Rate Hybrid Capital Securities issued under SNS REAAL N.V.’s EUR 2,000,000,000 Debt Issuance Programme of 18   August 2008, ISIN code XS0382843802; g.     all subordinated bonds issued by SNS Bank N.V. that belong to the following series: 1 o .     EUR 320 million 11.25% Resettable Tier 1 Notes issued on 27 November 2009 under the Debt Issuance Programme of SNS Bank N.V. / SNS REAAL N.V., ISIN code XS0468954523; 2 o .     EUR 200 million 5.75% Subordinated Fixed changing to Floating Rate Notes issued on 22 July 2003 under the EUR 20,000,000,000 Debt Issuance Programme, ISIN code XS0172565482; 3 o .     EUR 500 million 6.25% Subordinated Notes issued on 26 October 2010 under the Debt Issuance Programme of SNS Bank N.V. and SNS REAAL N.V., ISIN code XS0552743048; 4 o .     EUR 200 million 6.625% Subordinated Fixed Rate Notes due 14 May 2018, issued on 14 May 2008 under SNS Bank N.V.’s EUR 25,000,000,000 Debt Issuance Programme, ISIN code XS0363514893; h.     all non-listed subordinated bonds issued by SNS Bank N.V. under the name of ‘SNS Participatie Certificaten 3’ with a nominal value of EUR 100 each, at an interest rate of (currently) 5.16%, issued for an indefinite period and described in the prospectus of 1 May 2003; i.     all debt instruments, issued by or with the cooperation of SNS REAAL N.V. or SNS Bank N.V., which include subordination clauses that are similar to the subordination clauses included in the aforementioned series of bonds, or that otherwise prevent the claims of holders of such instruments from being met until after senior creditors of the issuer have been satisfied. 2.     The following capital components of SNS REAAL N.V. and SNS Bank N.V., respectively, shall be expropriated for the benefit of Stichting Afwikkeling Onderhandse Schulden SNS REAAL [“Foundation for settling the private debts of SNS REAAL”], with registered office at Utrecht: a.     the payment obligations of SNS REAAL N.V. and SNS Bank N.V. under the following loans: 1 o .     the EUR 20 million, 7.13% loan of SNS REAAL N.V. dated 9 October 2000 maturing on 23 June 2020 extended by Van Doorn Securities B.V.; 2 o .     the EUR 10 million, 7.10% loan of SNS REAAL N.V. dated 9 October 2000 maturing on 23 June 2020 extended by Van Doorn Securities B.V.; 3 o .     the NLG 400 million loan of SNS REAAL N.V. dated 20 May 1997 and maturing on 24 February 2014 extended by Stichting tot beheer van FNV aandelen Reaal Groep N.V.; 4 o .     the NLG 1 million loan of SNS Bank N.V. received on 23 February 1999 and maturing on 23 February 2019, extended by Stichting Pensioenfonds Poseidon; 5 o .     the NLG 25 million loan of SNS Bank N.V. received on 27 December 1999 and maturing on 27 December 2024, extended by Stichting Bewaarder OHRA Obligatie Fonds; b.     all obligations and liabilities of SNS REAAL N.V. or SNS Bank N.V. to parties expropriated under the first subsection or to former holders of securities expropriated under that subsection, to the extent that those obligations or liabilities relate to the (former) holdership of the said securities; such that all rights and obligations arising from those capital components with respect to SNS REAAL N.V. or SNS Bank N.V. shall transfer to Stichting Afwikkeling Onderhandse Schulden SNS REAAL effective as of the time of expropriation. 3.     Any party that loses the right to claim against SNS REAAL N.V. or SNS Bank N.V. as a result of the expropriation of the capital components referred to in subsection (2) shall be deemed to be ‘titleholders’ within the meaning of Section 6:8(1) of the Financial Supervision Act ( ... ), for the purposes of Chapter 6.3 of that Act. Article 2 The public limited company SNS REAAL N.V. shall be appointed as director of Stichting Afwikkeling Onderhandse Schulden SNS REAAL. Article 3 1.     Notwithstanding any provision in Part 6 of Volume 2 of the Dutch Civil Code or the relevant provisions in the Articles of Association: a.     the members of the Board of Management ( raad van bestuur ) of SNS REAAL N.V., as well as the chairman and vice-chairman of that Board, shall be appointed, suspended and dismissed by the general meeting of shareholders, without any recommendation. b.     the members of the Supervisory Board ( raad van commissarissen ) of SNS REAAL N.V., as well as the chairman and any vice-chairman of that Board, shall be appointed, suspended and dismissed by the general meeting of shareholders, without any recommendation. 2.     The provisions set out in subsection (1) shall be in effect for a period of six months starting on the date this Decree takes effect. Article 4 This Decree shall take effect on February 1, 2013 at 08:30 hours. This Decree shall be published by means of a press release in combination with the publication of the complete text of this Decree on the website of the Ministry of Finance. A copy of the Decree shall be sent to SNS REAAL N.V., SNS Bank N.V. and Stichting Afwikkeling Onderhandse Schulden SNS REAAL. This Decree shall also be announced in the Government Gazette [i.e. the Official Gazette] ( Staatscourant ).” 10.     A press release was issued, in Dutch and in English. It read as follows (English-language version published by the Government): “PUBLICATION CONCERNING THE EXPROPRIATION OF SNS REAAL AND SNS BANK News item | 01-02-2013 The Minister of Finance, having consulted [DNB] and having reached agreement with the Prime Minister, has decreed, pursuant to Sections 6:2 and 6:4 of the Financial Supervision Act (...), the expropriation of: all issued shares in the capital of SNS REAAL NV; all Stichting Beheer SNS REAAL Core Tier 1 capital securities issued by SNS REAAL NV; all issued shares in the capital of SNS Bank NV held by others than SNS REAAL NV or its group companies; all subordinated bonds of SNS REAAL NV and SNS Bank NV; all subordinated private liabilities of SNS REAAL NV and SNS Bank NV. All shares, Stichting Beheer SNS REAAL Core Tier 1 capital securities, and subordinated bonds are expropriated for the benefit of the State of the Netherlands. The expropriation of the subordinated private liabilities is effected by the expropriation of the corresponding liabilities of SNS REAAL and SNS Bank for the benefit of Stichting Afwikkeling Onderhandse Schulden SNS REAAL, established at Utrecht. The expropriation decree shall take effect today, February 1, 2013 at 08:30 hours. At that moment, title to the expropriated securities and liabilities will by operation of law transfer to the State of the Netherlands and the Stichting Afwikkeling Onderhandse Schulden SNS REAAL, respectively. As from such time, the original entitled parties will no longer be able to dispose of the expropriated securities or liabilities. The expropriation was made necessary by the extreme situation SNS Bank and SNS REAAL found themselves in and the serious and immediate threat posed by that situation to the stability of the financial system. For the full text (in Dutch) of the expropriation decree, which describes the expropriated securities and liabilities in greater detail, please refer to the website of the Ministry of Finance, where the expropriation decree is set out in full. The expropriation decree also informs interested parties as to how they may file objections against the decree. For information purposes an English translation of the relevant parts of the expropriation decree (including a more detailed description of the expropriated securities and liabilities) is available.” 11.     A news item was issued in Dutch and in English. It read as follows (English-language version published by the Government): “ State of the Netherlands nationalises SNS REAAL News item | 01-02-2013 The Minister of Finance, in close consultation with [DNB], has nationalised SNS REAAL. Savings deposits of clients are secure and the service provision of SNS REAAL has been safeguarded. The intervention has averted grave threats to financial stability and the economy. Financial stability safeguarded, private sector to contribute Nationalisation under the Invervention Act ( Interventiewet ) has become necessary because SNS REAAL finds itself in acute distress on account of its real estate problems. DNB had asked the institution to produce a solution before the firm deadline of 31 January 2013, 18:00 hours. The absence of such a solution, would mean bankruptcy for SNS Bank and put the Dutch financial system in serious and immediate danger. After DNB concluded once the deadline had passed that no solution was found, nationalisation was the only remaining option to safeguard financial stability in the Netherlands. ‘I scrutinized all alternative solutions involving market parties. But yesterday night I found myself compelled to conclude that no acceptable total solution was offered. I therefore had to use the instrument of last resort, which is nationalisation. Nationalisation would safeguard financial stability and prevent serious damage to the economy. I can well understand the aversion many people will feel because once again, a large sum of taxpayers’ money is required. This is why I want the private sector to contribute as much as possible towards the rescue of SNS Reaal,’ Minister of Finance Jeroen Dijsselbloem said. The private sector will have to share in the cost to the maximum extent that DNB regards as justifiable. This means that shareholders and subordinated creditors will be expropriated, saving the State €1 billion in expenses. Added to this, a special, one-off resolution levy of another €1 billion is to be imposed on the banks in 2014. The intervention and the budgetary consequences DNB has found that supplementary financial measures will be required to stabilise SNS REAAL. SNS REAAL’s problematic real estate arm is to be isolated. The entire operation will cost the State €3.7 billion. This amount breaks down into €2.2 billion in new capital injections, €0.8 billion to be written off from the earlier aid package, and €0.7 billion to put the real estate portfolio at arm’s length. Furthermore, the State will extend €1.1 billion in loans plus guarantees worth €5 billion. As a result, the EMU balance 2013 of the Netherlands will deteriorate by 0.6% while EMU debt will increase by 1.6%. Savings are safe Savers and other clients of SNS REAAL will notice no other changes. The client services of SNS REAAL with 1,6 million saving accounts and [one] million checking accounts will continue as usual and their savings are secure. ... The future of SNS REAAL The new management has received instructions to ensure that once SNS REAAL has been stabilised and market conditions allow it, business units are returned into private hands. Avoiding government intervention This fresh intervention marks a setback in the effort to restore the Dutch financial sector to robust health. The Minister intends to avoid such costly government measures in the future. Minister Dijsselbloem: ‘In the future, banks must be far easier to separate. This will mean that instead of an entire institution, only the parts of public relevance will have to be rescued. Legislation at the European level will have to ensure that in the future to the extent possible, the bill will be paid by private stakeholders.’ Technical aspects The expropriation decision and its press release may be read on the website. In 2014, a one-off levy of €1 billion will be imposed on the banks, to be paid into the treasury. This levy will not qualify for deduction from corporate tax. The contribution of each bank will be proportionate to its share in the total amount of deposits guaranteed under the Deposit Guarantee Scheme as at 1 February 2013.” 12.     On the same day, the Minister of Finance in person made a statement enlarging on the above at a press conference devoted to the nationalisation of SNS Bank. 13.     Also on the same day, the Minister of Finance wrote in the following terms to the Lower House of Parliament ( Tweede Kamer der Staten-Generaal ), via its Chairman (translation published by the Government): “I am writing to inform you of the nationalisation of SNS REAAL, which I enforced today under the Intervention Act ( Interventiewet ). The decision to do so was taken in agreement with the Prime Minister and in close consultation with [DNB]. In arriving at this decision, I closely examined all private and public-private options to solve the problems of SNS Bank’s real estate arm. In the summer of 2012, a possible solution involving the large banks emerged. Subsequently, in October 2012, a private equity fund announced its willingness to negotiate. Both my predecessor and I, mindful of the recommendations by the Financial Crisis Inquiry Commission, had several confidential meetings with the Parliamentary Finance spokesmen to talk and inform them about the situation at SNS REAAL. The Cabinet was also updated several times during the process. The continuing problems at SNS Property Finance forced DNB to conclude that SNS Bank required twice as much core capital as was available, the capital deficit. DNB had imposed a deadline of 31 January, 18:00 hrs, on SNS Bank to come up with a solution to remedy the funding deficit. Yesterday evening, DNB informed me that this deadline had passed without a solution having been found and that further measures would, in fact imply a bankruptcy. I subsequently had to conclude to my regret that the available alternatives were unacceptable; each of these alternatives laid the largest risks at the doorstep of the State, while conferring few powers. Therefore, in order to safeguard financial stability, I had no option but to nationalise, because SNS Bank would otherwise have gone bankrupt. The activation of the deposit guarantee scheme would have meant an enormous cost burden for the other banks. By nationalising the bank, I have safeguarded the money in 1.6 million savings accounts and one million current accounts. In addition, customers of SNS REAAL can continue to use the bank’s services without interruption. Following the nationalisation, direct support is needed to bail out SNS REAAL. In doing so, I wish to tackle the root of the problems. The institution will be recapitalised and the source of the problems, the real estate branch, will be isolated financially and operationally from the institution. In contrast to earlier support given in 2008, I will see that private parties that have knowingly chosen to finance SNS REAAL and SNS Bank will contribute to the maximum extent that DNB considers safe with a view to financial stability. I have expropriated not only the shareholders but also subordinated creditors. They will thus contribute €1 billion to the recapitalisation. ... Consequences for those expropriated and for compensation Parties suffering expropriation are entitled to compensation under part 6:3 of the [Financial Supervision Act]. The principle applying in this respect is that losses suffered must be a direct and necessary consequence of the expropriation and that the actual value of the expropriated shares and assets is compensated. The calculation of the fair value of the expropriated securities and assets is based on what the outlook for SNS REAAL would have been if the expropriation had not taken place. Account is taken of the price that would have applied, at the time of the expropriation and given the said prospects, in a free market transaction between the expropriated party as a reasonable seller and the expropriating party as a reasonable buyer. Account also has to be taken of State support previously provided and not yet repaid. In my opinion, SNS REAAL would have become insolvent if the Dutch State had not intervened. Based on my advisers’ analysis and given expected losses and state support still to be repaid, I believe that the value of the expropriated securities and assets of SNS REAAL and SNS Bank would be negative in the event of bankruptcy. In view of the above, and given that SNS REAAL requires a significant injection of capital by the State, I believe that the compensation should amount to €0 per expropriated share and €0 per expropriated loan. I will make an official offer of compensation to the expropriated parties as soon as possible. I will then instruct the Enterprise Division of the Amsterdam Court of Appeal to set the compensation in accordance with this offer. Expropriated parties who object to the offer of compensation may seek recourse to the Enterprise Division of the Court of Appeal. ...” 14.     The news of the expropriation was relayed on 1 and 2 February 2013 by the domestic and international financial and business press. Foreign press and news broadcasters who published it on their internet web sites included La Repubblica , Il Sole 24 Ore, Corriere della Sera and InvestireOggi (Italy), Financial Times and Reuters (United Kingdom) and Bloomberg (USA). 4.     Proceedings before the Administrative Jurisdiction Division of the Council of State 15.     The applicants and other affected parties lodged appeals with the Administrative Jurisdiction Division of the Council of State ( Afdeling bestuursrechtspraak van de Raad van State , “the Administrative Jurisdiction Division” or “the Division”). In accordance with Section 6:6(1) of the Financial Supervision Act (see paragraph 27 below) the applicable time-limit for lodging an appeal was ten days. The Government state that of ten notices of appeal received on 3 February 2013, seven (based on a model published by InvestireOggi ) came from Italy. On 11 February 2013 a group of 277 Italian bondholders, including applicants taking part in application no. 47315/13 ( Adorisio and Others ), submitted a joint notice of appeal; it comprised sixteen pages of argument. Also on 11 February 2013 the applicants Brigade Distressed Value Master Fund Ltd. and Others (application no. 48490/13) submitted a notice of appeal comprising thirty pages of argument, with numerous annexes. Also on that day Integrale Gemeenschappelijke Verzekeringskas (application no. 49016/13) submitted a notice of appeal comprising thirteen pages of argument, with annexes. All contested the lawfulness of the Minister’s decision. 16.     The Minister of Justice submitted the documents underlying the expropriation order but, with reference to section 8:29(1) of the General Administrative Law Act ( Algemene wet bestuursrecht ), sought a direction that access to certain parts of the reports by Ernst & Young and Cushman & Wakefield should be restricted to the Administrative Jurisdiction Division only. On 12 February 2013 the Confidentiality Chamber ( geheimhoudingskamer ) of the Administrative Jurisdiction Division held that the request for limitation of access to the documents was partially justified. 17.     On 13 February 2013 the parties were sent an invitation by express courier to attend the hearing of the Administrative Jurisdiction Division set to be held on 15 February 2013. The invitation included a password that all the parties could use to view all the documents to which they were allowed access on the internet web site of the Council of State. The Government state that advance copies of these documents were provided earlier to parties who so requested and were published by a television channel on its internet web site on 9 or 10 February. The invitation also mentioned that all parties could submit documents up until Thursday 14 February 2013 at the latest. 18.     The Minister’s written defence statement comprised 105 pages. It would appear that it was accessible via the Council of State’s internet web site no earlier than 14 February 2013 at approximately 5 p.m. 19.     The hearing opened on Friday 15 February 2013, starting at 9.30 a.m., as scheduled. 20.     The Administrative Jurisdiction Division gave judgment on 25   February 2013. As relevant to the case now before the Court, it held as follows (translation published by the Council of State): “Right to a fair hearing and procedural aspects 7.     Some appellants argue that the provisions of the Financial Supervision Act and the manner in which the Division has dealt with this case violate their right to a fair hearing as safeguarded by article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) [i.e. the Convention]. They refer in this connection to the brevity of the period for lodging an appeal, to the brevity of the period between the lodging of the appeal and the appeal hearing held by the Division and to the fact that in some cases they only had a few days before the hearing in which to acquaint themselves with the documents relating to the case. These appellants argue that as a result of this limited time for preparation they have been unable to defend their interests properly. More particularly, a few of these appellants argue that the Division should have held the hearing not on Friday 15 February 2013 but on Monday 18 February 2013 and that they had no opportunity to inspect the minister’s 105-page statement of defence until after 5 pm on the day before the hearing. 7.1.     It is apparent from the case law of the European Court of Human Rights (ECtHR) [i.e. the Court] (e.g. the case of Ashingdane v. the United Kingdom [ Ashingdane v. the United Kingdom , 28 May 1985, Series A no. 93]) that article 6 ECHR does not confer an absolute right of access to the courts. The Contracting States enjoy a margin of appreciation in laying down regulations that entail certain limitations, provided that the very essence of the right of access to the courts is not impaired and the limitations serve a legitimate aim and are proportionate. 7.2.     Pursuant to section 6:6, subsec