CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 14 septembre 2021

.s800EAC49 { font-size:12pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .sBB9EE52A { font-family:Arial } .s339D85E6 { margin-top:0pt; margin-bottom:14pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .s665E407E { margin-top:66pt; margin-bottom:14pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .s29100277 { font-family:Arial; font-weight:bold } .s34DFC730 { margin-top:0pt; margin-bottom:0pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .sA36B60A1 { font-family:Arial; font-style:italic } .s10950C61 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .s6478469E { margin-top:0pt; margin-bottom:14pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; border:0.75pt solid #000000; padding:1pt 4pt } .s2E932ED2 { margin-top:0pt; margin-bottom:0pt; font-size:11pt } .s598389FB { margin-top:0pt; margin-bottom:0pt; text-align:center; font-size:14pt } .sF5E1C6CF { font-family:Arial; font-weight:bold; text-decoration:underline; color:#ff0000 } .sE208486F { font-family:Arial; color:#ff0000 } .s85016119 { margin-top:0pt; margin-bottom:0pt; text-align:justify; font-size:11pt } .s4ACA9207 { page-break-before:always; clear:both; mso-break-type:section-break } .s9793A85B { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .sB9D5CABB { width:28.35pt; display:inline-block } .s3AAE10DF { margin-top:14pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s3CA22BA { font-family:Arial; text-transform:uppercase } .s6B505E72 { margin:0pt; padding-left:0pt } .s586AA269 { margin-top:14pt; margin-left:11.67pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; padding-left:8.18pt; font-family:Arial; text-transform:uppercase } .s9D48DD53 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; text-align:justify; font-size:10pt } .sCD7D0356 { margin-top:14pt; margin-left:15pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; padding-left:4.85pt; font-family:Arial; text-transform:uppercase } .sC47DA4E2 { margin-top:14pt; margin-left:18.34pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; padding-left:1.51pt; font-family:Arial; text-transform:uppercase } .s743F3A55 { margin-right:0pt; margin-left:0pt; padding-left:0pt } .s8C49A017 { margin-left:5.65pt; margin-bottom:12pt; page-break-inside:avoid; page-break-after:avoid; font-weight:bold; text-transform:none } .s5E8F5A28 { margin-top:14pt; margin-left:25.5pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-family:Arial; font-weight:bold } .sB25A0399 { margin-top:14pt; margin-left:24.84pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; padding-left:0.66pt; font-family:Arial; font-weight:bold } .s7CAC83C { margin-top:14pt; margin-left:19.67pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; padding-left:0.18pt; font-family:Arial; text-transform:uppercase } .sCCF7C909 { width:19.85pt; display:inline-block } .s8B983D37 { text-transform:none } .s84651E4E { margin-top:14pt; margin-left:14.2pt; margin-bottom:3pt; text-align:justify } .sC66C6FB1 { margin-top:14pt; margin-left:16.34pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; padding-left:3.51pt; font-family:Arial; text-transform:uppercase } .s5E503E34 { width:34.45pt; text-indent:0pt; display:inline-block } .sCBF2D345 { margin-left:11.67pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; padding-left:8.18pt; font-family:Arial; text-transform:uppercase } .s3A692EA6 { margin-top:14pt; margin-bottom:6pt; text-align:center; page-break-after:avoid; font-size:10pt } .s4AA8B09A { margin-top:6pt; margin-bottom:6pt; text-align:justify; font-size:10pt } .sF9B3189B { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; text-align:justify } .s4B8D41EE { font-family:Arial; font-size:10pt } .s2044A09A { margin-left:6.51pt; margin-bottom:6pt; page-break-inside:avoid; page-break-after:avoid; padding-left:1.99pt; font-weight:normal; font-style:italic } .sAE6FB95D { margin-top:14pt; margin-left:32.01pt; margin-bottom:6pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; padding-left:1.99pt; font-family:Arial; font-style:italic } .sF54F3725 { margin-top:0pt; margin-left:42.55pt; margin-bottom:6pt; text-indent:-17.05pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .sDBC81028 { width:4.83pt; font:7pt 'Times New Roman'; display:inline-block } .s65DDED6B { margin-top:14pt; margin-left:42.55pt; margin-bottom:6pt; text-indent:-17.05pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .s7AE800C3 { width:4.28pt; font:7pt 'Times New Roman'; display:inline-block } .s434D37A9 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .sE485344B { margin-top:14pt; margin-left:28.6pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; padding-left:0.6pt; font-family:Arial; font-weight:bold } .s74818F78 { margin-top:14pt; margin-bottom:3pt; text-align:justify; font-family:Arial; list-style-position:inside } .sE7B3A78A { width:1.99pt; font:7pt 'Times New Roman'; display:inline-block } .sFBC99493 { font-style:italic } .sD11CFAB7 { margin-top:14pt; margin-left:15.01pt; margin-bottom:3pt; text-align:justify; padding-left:1.99pt; font-family:Arial } .s61CAB3E5 { margin-top:14pt; margin-left:15.01pt; margin-bottom:3pt; text-align:justify; page-break-after:avoid; padding-left:1.99pt; font-family:Arial } .sE7D90B8E { margin-top:0pt; margin-left:34pt; margin-bottom:0pt; text-indent:-17pt; text-align:justify; page-break-after:avoid } .sE5BF05B1 { width:2.33pt; font:7pt 'Times New Roman'; display:inline-block } .s7F175FE6 { margin-top:0pt; margin-left:51.05pt; margin-bottom:0pt; text-indent:-17.05pt; text-align:justify } .sE5C1F6E3 { width:3.33pt; font:7pt 'Times New Roman'; display:inline-block } .s51DFF5CF { margin-top:0pt; margin-left:34pt; margin-bottom:0pt; text-indent:-17pt; text-align:justify } .s2D9C6089 { margin-top:12pt; margin-bottom:12pt; text-indent:14.2pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s7CB9076 { margin-top:36pt; margin-bottom:0pt; page-break-inside:avoid; page-break-after:avoid } .sF920FE69 { font-family:Arial; color:#f8f8f8 } .s69DCC830 { margin-top:36pt; margin-bottom:0pt } .sA7EA9CB9 { width:178.3pt; display:inline-block } .s7602FED2 { width:18.21pt; display:inline-block } .sC1AC44A4 { width:228.11pt; display:inline-block } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .sD00444C6 { margin-top:0pt; margin-bottom:14pt } .s75A32C27 { border-collapse:collapse } .sB21756B { height:54.55pt } .s3695F815 { border:0.75pt solid #949494; padding:1.02pt 5.03pt; vertical-align:top; background-color:#dfdfdf } .s2EF62ED2 { margin-top:0pt; margin-bottom:0pt; font-size:12pt } .sEECE831 { font-family:Arial; font-weight:bold; color:#474747 } .sE20A0691 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; font-size:12pt } .sE8934522 { border:0.75pt solid #949494; padding:1.02pt 5.03pt; vertical-align:top } .s8F670191 { font-family:Arial; font-size:12pt; list-style-position:inside } .s35C486C9 { height:137pt } .s1C7FEEE1 { height:109.15pt } .s57FE97F4 { height:137.3pt }     SECOND SECTION CASE OF PINTAR AND OTHERS v. SLOVENIA (Applications nos. 49969/14 and 4 others – see appended list)       JUDGMENT   Art 1 P1 • Control of the use of property • No reasonable opportunity to challenge or seek compensation for national bank’s extraordinary measures cancelling shares and bonds • Measures not accompanied by sufficient procedural guarantees against arbitrariness   STRASBOURG 14 September 2021   FINAL   14/12/2021     This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Pintar and Others v. Slovenia, The European Court of Human Rights (Second Section), sitting as a Chamber composed of:   Jon Fridrik Kjølbro, President,   Carlo Ranzoni,   Aleš Pejchal,   Valeriu Griţco,   Branko Lubarda,   Marko Bošnjak,   Saadet Yüksel, judges, and Stanley Naismith, Section Registrar, Having regard to: the applications (see the appendix) against the Republic of Slovenia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by seven Slovenian nationals, on the various dates indicated in the appended table; the decision to give notice to the Slovenian Government (“the Government”) of the complaints concerning Article 1 of Protocol No.   1 and Article 13 of the Convention in conjunction with the former provision; the parties’ observations; Having deliberated in private on 6 July 2021, Delivers the following judgment, which was adopted on that date: INTRODUCTION 1.     The case concerns the Bank of Slovenia’s extraordinary measures taken in 2013 and 2014 in respect of the major Slovenian banks and resulting in the cancellation of all shares or subordinated bonds held by the applicants, without any compensation. The applicants complained about, among other things, having no legal means to effectively challenge the measures due to the ongoing failure of the State to provide a remedy which would be effective and available in practice. There are thousands of individuals and entities in a similar situation to the applicants. THE FACTS 2.     The applicants’ details are set out in the appendix. 3.     The Government were represented by their Agents, Mrs B. Jovin Hrastnik and Mrs J. Morela. 4.     The facts of the case, as submitted by the parties, may be summarised as follows. 5.     The applicants were holders of shares or subordinated bonds ( podrejene obveznice , hereinafter “bonds”) in three Slovenian banks, Nova Ljubljanska banka (“the NLB”), Nova Kreditna Banka, Maribor (“the NKBM”), and the Celje Bank. While the shares represented a stake in the ownership of a bank, the bonds normally represented claims resulting from a loan agreement that the bank entered into with the investor. Subordinated bonds were, in the event of liquidation, given lower priority than other classes of bonds. BACKGROUND TO THE BANK OF SLOVENIA’S EXTRAORDINARY MEASURES 6.     On 23 October 2012, the National Assembly adopted the Act Regulating Measures of the Republic of Slovenia to Strengthen the Stability of Banks (“the Stability of Banks Act”, see paragraph 54 below), which identified measures that allowed direct recapitalisation of banks through the use of public funds and the transfer of non-performing assets to a particular state-owned company – the Bank Asset Management Company. 7.     On 28 November 2012 the European Commission (“the Commission”) issued its report on the Alert Mechanism Report 2013, in which it was noted that the situation in Slovenia regarding banking stability remained fragile, and suggested that an in-depth analysis be carried out. Subsequently, on 10 April 2013, the Commission published a report “Macroeconomic imbalances - Slovenia 2013”, which established, inter alia , that the banking sector was one of the main reasons for excessive macroeconomic imbalances in Slovenia. It noted that Slovenia had upgraded the legal framework for bank supervision, which provided the Bank of Slovenia (the national central bank) with new powers, including the power to increase share capital and the power to transfer the bank’s assets, as well as to take “extraordinary measures” (see paragraph   55 below). In this connection the Commission also emphasized the following: “To regain credibility and stabilise the financial sector, a new, independent and transparent assessment could usefully form the basis for a comprehensive strategy. The strategic imperatives are regaining credibility and market access, improving banks’ governance and profitability, and right-sizing and strengthening banks’ balance sheets, while minimising fiscal cost and risk. A new third-party asset quality review [“the AQR”] and a new thorough stress test are needed to quantify the challenges and ensure that the strategy, the overall fiscal envelope and the selection of tools are appropriate. These assessments would ideally be conducted by internationally recognised consultants under the guidance of a steering committee comprising the relevant international financial institutions and the Slovenian authorities. The asset quality review and stress test should cover the entire banking system (with the systemically relevant banks constituting an absolute minimum) and would inform a system-wide viability assessment. Publishing the approaches used, with underlying assumptions and main findings, would help to maximise credibility.” 8.     On 9 July 2013 the Council of the European Union (“the Council”) issued the Council Recommendation of 9 July 2013 on the National Reform Programme 2013 for Slovenia and delivering a Council opinion on the Stability Programme of Slovenia, 2012-2016, OJ C 217, 30.7.2013, pp   75 ‑ 80 (“the Council Recommendation”). In respect of the established macroeconomic imbalances it recommended that the Republic of Slovenia undertake various measures in order to ensure the stability of the banking sector, including measures related to public financial support to banks if necessary. It also referred to independent external advisers and a system ‑ wide bank asset quality review. It pointed out that all measures should be implemented in full compliance with State aid rules if State aid was involved. 9.     The Bank of Slovenia undertook to conduct AQR and stress tests. These were carried out by consulting firms which acted as independent advisers under the leadership of a steering committee, which included, in addition to the Bank of Slovenia and the Ministry of Finance, the Commission, the European Banking Authority (“the EBA”) and the European Central Bank (“the ECB”). The banks accounting for 70% of the banking sector were included in the asset quality review and stress tests, including the banks in which the applicants held shares or bonds. 10.     On 30 July 2013 the Communication from the Commission on the application, from 1 August 2013, of State aid rules to support measures in favour of banks in the context of the financial crisis (“the Banking Communication”) was published. It repeatedly indicated that State support should be granted on terms which represented an adequate burden-sharing by those who invested in the bank. Specific provisions concerning the burden sharing required for State aid to be granted are contained in points   40 to 46 of the Banking Communication. They provide, inter alia , that hybrid capital and subordinated debt holders should contribute to reducing the capital shortfall to the maximum extent (point   41). Furthermore, in cases where the bank could no longer meet the minimum regulatory capital requirements, the subordinated debt should be converted or written down, in principle before State aid is granted. State aid should not be granted before equity, hybrid capital and subordinated debt have fully contributed to offsetting any losses (point 44). 11.     On 14 November 2013, the National Assembly adopted the Amendment to the Banking Act (see paragraph 55 below), which defined the conditions and powers of the Bank of Slovenia with regard to the application of extraordinary measures of cancelling the bank’s share capital and/or cancelling or converting subordinated instruments of the bank in order to prevent the bank’s failure and to preserve the stability of the financial system. 12.     In the meantime, between May 2013 and September 2013, the NLB, the NKBM, and three other banks applied for State aid. 13.     On 12 December 2013 the consulting firms submitted stress test results and their findings concerning the AQR on the level of further required impairments in the banks. Subsequently, the Bank of Slovenia established that the capital of all five banks that had applied for State aid (see paragraph   12 above) would have been negative at the end of the financial year and that the conditions for the commencement of bankruptcy due to insolvency were met by all five banks, since the banks lacked the necessary assets to repay their liabilities. 14.     On 18 December 2013 the Commission authorised the granting of State aid to the five banks concerned (see paragraph 12 above), prior notice of that aid having been given by the Slovenian authorities. It noted as a precondition that the burden-sharing between the State and the shareholders and holders of subordinated instruments of those banks should be ensured. For instance, in the decision on State aid for the NLB, issued on 18   December 2013, the Commission stated: “In that respect, Slovenia committed that before any State aid is granted to [the] NLB (...), the latter will write-down in full its shareholders’ equity and outstanding subordinated debts so ensuring compliance with the requirements of 2013 Banking Communication. The Commission positively notes that the contribution of subordinated debt holders is achieved to the maximum extent possible, thus ensuring adequate burden-sharing. The State capital injections will only be implemented after the complete implementation of the wipe-out of the subordinated debt holders. That sequence ensures that all existing subordinated debt holders have to fully contribute to the restructuring costs of the bank prior to the State stepping in. The State will thereby own 100 % of the bank’s shares after the third recapitalisation compared to 33.1   % prior to the first capital injection by the State.” 15.     As regards the Celje Bank, the Bank of Slovenia established on the basis of the AQR and the stress test exercise that it too did not comply with the minimum capital requirements. This bank on 12 March 2014 sent a request to the Ministry of Finance for the application of measures under the Stability of Banks Act (see paragraph 54 below). On 16 December 2014 the Commission approved State aid in favour of the Celje Bank. THE BANK OF SLOVENIA’S DECISIONS ON EXTRAORDINARY MEASURES 16.     On 17   December 2013 the Bank of Slovenia, finding that the conditions under section 253a (1) of the Banking Act (see paragraph   55 below) were met, adopted decisions putting in place extraordinary measures with respect to the five banks which had initially applied for State aid (see paragraph 12 above). On 16 December 2014 the Bank of Slovenia issued a decision concerning extraordinary measures also with respect to the Celje Bank (see paragraph 15 above). Relying on the relevant provisions of the Banking Act (see paragraphs 56 to 58 below), these decisions cancelled all existing eligible liabilities ( kvalificirane obveznice - for definition see section 261a (6) of the Banking Act, cited in paragraph 56 below), including the shares and bonds owned by the applicants. They referred to the Council Recommendation and the AQR and stress test results carried out by the consulting firms (see paragraphs   8, 9 and 13 above); identified increased risks in the banks concerned, and their threat to the stability of the financial system; and noted that the extraordinary measures were a necessary condition for the granting of State aid. They furthermore provided that the share capital of the banks concerned be reduced to zero and at the same time increased by issuing new shares and that these provisions were to replace a decision by the shareholders’ meeting. The increase in capital was done, in full, by monetary and in-kind contributions provided by the State. The holders of eligible liabilities (“former holders”) were denied priority in obtaining new shares. 17.     The decisions concerning the extraordinary measures were served on the banks, which were required to inform the respective holders thereof. The information about the extraordinary measures were published on the special online service of the Ljubljana Stock Exchange and the Bank of Slovenia’s website. 18.     Apart from certain information that was published, the content of the above decisions was classified as strictly confidential. It seems that it later became available, at least to some extent. However, several other documents including the material produced by the consulting firms (relating to the AQR and stress tests), which underpinned the impugned measures, appear to be treated as confidential and continue to be inaccessible to the former holders. 19.     Several criminal complaints were lodged concerning actions of, inter alios , the members of the Governing Board of the Bank of Slovenia in connection with the above measures. In June and July 2016 the law enforcement authorities, acting on suspicion of abuse of power and of official functions, carried out wide-scale investigative measures, including police searches and seizure of documents and electronic data at the premises of the Bank of Slovenia, the NLB and the consulting firms that had conducted the AQR and stress tests. It would appear that the domestic investigation or proceedings concerning the above accusations are still pending. In this connection, on 17 December 2020 the Court of Justice of the European Union (“the CJEU”) found in Commission v Slovenia (ECB archives) , C-316/19, EU:C:2020:1030, that by unilaterally seizing documents, which were considered to be part of the archives of the ECB, Slovenia had failed to fulfil its obligation to respect the principle of the inviolability of the archives of the EU. 20.     The State was a major shareholder in the NLB and the NKBM at the time the extraordinary measures were taken. As regards the Celje Bank, State-owned shareholders controlled the bank’s operations. THE APPLICANTS’ PARTICULAR CIRCUMSTANCES Mr Pintar (application no. 49969/14) 21.     Mr Pintar owned 1,500 shares (symbol KBMR) of the NKBM, which were pursuant to the Bank of Slovenia’s decision of 17   December   2013 (see paragraph 16 above) cancelled. He learned of this from media, on an unknown date. On 17 January 2014 he sent an email to the Bank of Slovenia asking for a formal document confirming that his shares had been cancelled. On 21 January 2014 he received a reply that no formal document could be issued to that effect and that his shares had been cancelled ex lege once the NKBM had been notified of the Bank of Slovenia’s decision. 22.     On 18 October 2017 Mr Pintar lodged a criminal complaint against, inter alia , the management and supervisory board of the NKBM, and the governor of the Bank of Slovenia, for fraud and abuse of position or trust in commercial activity, which was rejected by the Kranj Public Prosecutor on 24   January 2018. Mr Kotnik and Mr Peterlin (application no. 20530/16) 23.     Mr Peterlin owned 12 shares (symbol BCER) of the Celje Bank. Mr   Kotnik owned 18 BCE11 bonds (subordinated bonds with non-fixed maturity, with the nature of an innovative financial instrument) and 3,347   BCE16 bonds (subordinated bonds with fixed maturity). Pursuant to the Bank of Slovenia’s decision of 16 December 2014 (see paragraph   16 above), the shares owned by Mr Peterlin and the bonds owned by Mr   Kotnik were cancelled. 24.     On 16 December 2014 the Celje District Court, further to the Bank of Slovenia’s request, entered in the Court Register a decision on the reduction of the share capital to zero and an increase in capital of the Celje Bank on the basis of the Bank of Slovenia’s decision of 16   December 2014. It also accordingly modified certain provisions of the Statute of the Celje Bank. On 24 December 2014, Mr Kotnik and Mr Peterlin lodged an appeal against the district court’s decision, which was rejected by the Celje Higher Court on 10 September 2015. The latter noted, inter alia , that it lacked power to review the legality and correctness of the Bank of Slovenia’s decision but could only examine whether the request for changes in the Court Register was accompanied by the required documents and whether these were in line with the legal provisions on which they were based, and contained all the necessary data. It also noted that certain provisions which normally regulated the operation of companies could not have been applied in this case having regard to the provisions of the Banking Act, the public interest considerations and the required promptness. 25.     On 7 December 2015, Mr Kotnik and Mr Peterlin, invoking the right to private property and judicial protection (see paragraph   53 below), lodged a constitutional complaint against the above court decisions. It was dismissed by the Constitutional Court on 25 January 2016, finding that the applicants lacked legal interest in the proceedings. Mr Kotnik also lodged a petition for the initiation of proceedings to review the constitutionality of certain provisions of the Banking Act (see paragraph   38 below). Mr Jukič (application no. 4713/17) 26.     Mr Jukič owned 4,850 shares of the NKBM (symbol KBMR), which were pursuant to the Bank of Slovenia’s decision of 17   December 2013 (see paragraph 16 above) cancelled. 27.     Mr Jukič brought an action against the Bank of Slovenia and the respondent State before the Administrative Court, seeking annulment of the Bank of Slovenia’s decision or a finding that it interfered with his human rights. He relied on section 4 of the Administrative Dispute Act (see paragraph   61 below) and referred to, inter alia , the right to judicial protection and the right to private property (see paragraph 53 below). On 10   June 2014 the Administrative Court rejected the action, finding that the impugned decision was administrative in nature but subject to special regulation of the Banking Act which allowed only the banks to challenge it (section 347 of the Banking Act - see paragraph 59 below). Section 4 of the Administrative Dispute Act therefore did not apply to this case, as otherwise the claimants could bypass section 347 of the Banking Act. The court further referred to section 350a of the Banking Act and noted that Mr Jukič could lodge a compensation claim and that the question whether the Bank of Slovenia’s decision was lawful – including whether the conditions for the bankruptcy proceedings had been met – could potentially be determined also within the compensation proceedings. This decision of the Administrative Court became final on 11 September 2014. 28.     In the meantime, on 2 January 2014 Mr Jukič lodged a constitutional complaint against the above decision of the Bank of Slovenia, invoking, inter alia , the right to private property and judicial protection (see paragraph   53 below). He argued that he had no effective remedy at this disposal and that he had no access to the Bank of Slovenia’s decision and had learned of it only from the media. It was rejected by the Constitutional Court on 16 December 2016 for failure to exhaust legal remedies. Mr   Jukič also filed a petition for the initiation of proceedings for review of constitutionality of section 261a and 347 of the Banking Act (see paragraphs   38 below). Ms Logar (application no. 13244/18) 29.     Ms Logar owned 1,843 shares of the NLB (symbol NLB), which were pursuant to the Bank of Slovenia’s decision of 17 December 2013 (see paragraph 16 above) cancelled. 30.     On 14 February 2014 she brought an action under section 4 of the Administrative Dispute Act (see paragraph   61 below) against the Bank of Slovenia before the Administrative Court, relying on, among other things, the right to private property and judicial protection (see paragraph   53 below). On 10 June 2014 the court rejected her action, finding that the Bank of Slovenia’s decision was of an administrative nature and section 4 of the Administrative Dispute Act therefore did not apply. An action in the Administrative Court could be lodged only by banks under section 347 of the Banking Act. The court further noted that the applicant had at her disposal a remedy under section 350a of the Banking Act. On 18 January 2017 the Supreme Court rejected her appeal. She subsequently lodged a constitutional complaint against the above court decisions and the Bank of Slovenia’s decision of 17 December 2013 issued against the NLB. On 4   September 2017 the Constitutional Court decided not to accept her constitutional complaint for consideration. The decision was served on her on 12 September 2017. 31.     On 20 December 2016 Ms Logar lodged with the Ljubljana District Court an action for damages against the Bank of Slovenia and the NLB concerning her shares that had been cancelled. She was seeking payment of EUR   117,214 together with the statutory default interest as from 18   December 2013 until the date of payment. She requested that the proceedings be stayed until the adoption of the legislation implementing the 2016 Decision. This request was upheld by the District Court on 24   April 2017. 32.     The applicant also filed a criminal complaint for abuse of office against the Governor and Vice Governors of the Bank of Slovenia. This resulted in a criminal investigation which appears to be still pending. Mr Jesenko and Ms Jesenko (application no. 16311/18) 33.     Ms Jesenko owned 1,529 NLB26 bonds and Mr Jesenko owned 850   NLB26 bonds (subordinated bonds with a fixed maturity), which were pursuant to the Bank of Slovenia’s decision of 17 December 2013 (see paragraph   16 above) cancelled. On 18 December 2013 the NLB informed Mr Jesenko and Ms Jesenko of the Bank of Slovenia’s decision. 34.     They brought an action against the Bank of Slovenia before the Administrative Court, requesting that the decision on extraordinary measures against the NLB be served on them. This was refused by the Administrative Court in a decision that became final on 10 June 2014. The Administrative Court found that the applicants had had no right to participate in the procedure leading to the Bank of Slovenia’s impugned decision and that therefore they had no right to have this decision served on them. 35.     Mr Jesenko and Ms Jesenko also lodged a constitutional complaint against the Bank of Slovenia’s decision of 17 December 2013. On 16   December 2016 the Constitutional Court rejected their constitutional complaint finding that the legal remedies had not been exhausted. 36.     On 27 September 2017 Mr Jesenko and Ms Jesenko lodged a new constitutional complaint. They invoked, inter alia , Articles 6 and 13 of the Convention and Article 1 of Protocol No. 1 and complained about the delay in the implementation of the 2016 Decision (see paragraph   44 below) and their continuous inability to challenge the interference with their property rights. They also argued that the passage of time would negatively effect their chances to prove the damage. On 1   December 2017 the Constitutional Court rejected their constitutional complaint due to non ‑ exhaustion of legal remedies. 37.     In the meantime, on an unspecified day in December 2016, Mr   Jesenko and Ms Jesenko lodged legal actions under section 350a of the Banking Act against the Bank of Slovenia and the NLB. The proceedings were subsequently stayed pending the implementation of the 2016 Decision. On 6 January 2020 the Ljubljana District Court referred their cases to the Maribor District Court, which had acquired jurisdiction pursuant to the 2020 Remedy Act (see paragraph 47 below).   THE CONSTITUTIONAL COURT’S DECISION N o . U-I-295/13 OF 19 OCTOBER 2016 (“THE 2016 DECISION”) 38.     At the request of the National Council, the Ljubljana District Court and the Human Rights Ombudsman, and upon the petitions of several individual petitioners, including the applicants Mr Kotnik and Mr Jukič, the Constitutional Court reviewed the constitutionality of certain provisions of the Banking Act, the Act Amending the Banking Act and the Resolution and Compulsory Dissolution of Banks Act (see paragraphs   55 to 60 below). It was called upon to review the compliance of the impugned legislation concerning the extraordinary measures with, inter alia , the prohibition of retroactivity, the principle of the rule of law, the right to private property, and the right to judicial protection (see paragraph   53 below). 39.     On 6 November 2014, considering that the objective of the impugned legal provisions was to transpose the Banking Communication (see paragraph 10 above) into national law in order to enable the national authorities to grant State aid, the Constitutional Court decided to stay the proceedings and to refer a number of questions to the CJEU for a preliminary ruling. 40.     On 19 July 2016 the grand chamber of the CJEU delivered a judgement ( Kotnik and others , C-526/14, EU:C:2016:570) in which it found, inter alia , - that the Banking Communication should be interpreted as meaning that it was not binding on the Member State, - that the principle of the protection of legitimate expectations and the right of property should be interpreted as not precluding points   40 to 46 of the Banking Communication in so far as those points laid down a condition of burden-sharing by shareholders and holders of subordinated rights as a prerequisite to the authorisation of State aid, - and that the Banking Communication must be interpreted as meaning that the measures as provided for in point   44 of that communication should not exceed what was necessary to overcome the capital short-fall of the bank concerned. 41.     On 19 October 2016 the Constitutional Court delivered, unanimously, its decision no. U-I-295/13, finding that section 350a of the Banking Act and section 265 of the Resolution and Compulsory Dissolution of Banks Act (see paragraphs 59 and 60 below) were inconsistent with the Constitution as regards the right to judicial protection. In respect of the remaining provisions under review, it decided that they were not inconsistent with the Constitution. 42.     The Constitutional Court took account of the CJEU judgment but considered the Banking Communication was relevant to its assessment. As regards the right to private property the Constitutional Court noted that the imposition of the extraordinary measures prevented the initiation of bankruptcy proceedings against the banks. The State, providing aid, was under no obligation to reimburse creditors whose investment turned out to be unsuccessful. It referred to the “no creditor worse-off” principle, which required that individual creditors must not sustain a loss greater than the loss they would have sustained otherwise (in the absence of the impugned measure). Noting that the extraordinary measures had been conditioned on the bank not achieving the minimal capital requirements, the Constitutional Court found it reasonable that the assessments of the (possible) payment of the eligible liabilities from the bank’s assets be made in relation to the non-performing bank (that is an insolvent bank). In the Constitutional Court’s view, the imposition of the measure, the fundamental prerequisite of which was that after the cancellation or conversion the former holders of eligible liabilities   (“former holders”) should always receive at least as much as they would retain after the bankruptcy proceedings, could not by its very nature lead to an interference with the right of private property. The Constitutional Court stressed that if those affected by the extraordinary measures considered that the specific procedures for the imposition of such measures had been based on inaccurate assessments, they should pursue their claims in the relevant proceedings. 43.     As regards the right to judicial protection, the Constitutional Court explained that under section 347 of the Banking Act (see paragraph   59 below) only the banks could challenge the Bank of Slovenia’s decisions on extraordinary measures in (regular) proceedings before the Administrative Court. It noted that the Constitution did not require that the former holders had such a possibility but it was enough that they had a possibility to protect their rights by way of a compensation claim pursuant to section 350a of the Banking Act and Section 265 of the Resolution and Compulsory Dissolution of Banks Act (see paragraphs   59 and 60 below). In this connection it also observed that the situation could not be redressed by restitution (since the shares and bonds had already been cancelled) but could be redressed by full compensation of any pecuniary loss. Therefore, the regulation allowing the former holders to claim compensation could not be considered unreasonable. However, for a compensatory remedy to be in line with the Constitution it should also be effective. In this connection the Constitutional Court noted that in the proceedings under section 350a of the Banking Act the plaintiffs would have to demonstrate that their loss was higher than the loss they would have suffered in the absence of the impugned measures in view of the circumstances of which the Bank of Slovenia had been or should have been aware. It took note of the difficult situation of the former holders who could not be aware of specific economic and financial valuations that had underpinned the Bank of Slovenia’s impugned measures. It also noted that the former holders had been denied access to information and data concerning the assessment of the value of bank assets and other documentation of the Bank of Slovenia which was crucial for the formulation of the grounds for damages. Moreover, the task of proving the grounds and the damages in these cases was particularly difficult and the Constitutional Court found it problematic that the former holders would have to act individually against the Bank of Slovenia. On the other hand, the Bank of Slovenia had significant expertise and resources. In the court’s view such imbalance between the parties would need to be remedied by special procedural rules adapted to the nature of this particular dispute. In this connection the Constitutional Court noted the following: - The proceedings could be effective only if the plaintiffs had full access to documents relating to the impugned measure which were available to the Bank of Slovenia and only if they were left sufficient time to prepare their civil action after having such access. - The Bank of Slovenia should clearly demonstrate why the measures were necessary. - Under the existing rules it was not possible for the plaintiffs to act collectively, though this would increase efficiency, speed and uniformity of decision-making. 44.     In view of the foregoing the Constitutional Court concluded that the legal avenue under section 350a of the Banking Act, which failed to take account of the imbalance in the position of the former holders and the Bank of Slovenia, did not comply with the requirements of the right to effective judicial protection. It found that in view of the absence of special rules regulating the legal disputes between the former holders and the Bank of Slovenia there was an “unconstitutional legal lacuna”. It instructed the National Assembly to remedy the established unconstitutionality within six months following the publication of its decision in the Official Gazette. In the meantime – that is, until the unconstitutionality was removed – the Constitutional Court ordered that all proceedings instituted pursuant to Section 350a (1) of the Banking Act be stayed. It also decided that the statute of limitations regarding (new) claims for damages should start to run six months after the entry into force of the legislation adopted with a view to remedying the established unconstitutionality. DEVELOPMENTS CONCERNING THE IMPLEMENTATION OF THE 2016 DECISION 45.     On 13 November 2017 the first draft law implementing the 2016 Decision entered the National Assembly’s legislative process but due to the dissolution of the parliament it has never been voted on. 46.     Following the early elections of 3 June 2018, a new government was appointed on 13 September 2018. The Ministry of Finance prepared a new draft - the proposal of the Act on Judicial Protection Procedure for Former Holders of Eligible Liabilities of Banks. Following the Ministry of Finance’s request, the ECB, on 27 March 2019, issued an opinion on the draft, expressing certain concerns with respect to the prohibition of monetary financing, financial independence of the Bank of Slovenia and the obligation of professional secrecy imposed by EU Law, especially with regard to the stress test reports, the AQR and assets valuations concerning the individual banks. Adoption of the 2020 Remedy Act 47.     On 22 November 2019 the National Assembly adopted the Act on Judicial Protection Procedure for Former Holders of Eligible Liabilities of Banks (“the 2020 Remedy Act”). It was published on 4 December 2019 and came into force on 19 December 2019. The Act provides for the proceedings in which the former holders could seek judicial protection with respect to the extraordinary measures cancelling their shares or affecting their other rights. Among other things, it sets out rules regarding access to documents and information, which were or should have been relied on by the Bank of Slovenia, the manner of providing documents and information related to the extraordinary measures (including the so-called “virtual data room” operated by the Ministry of Finance for each bank, in which relevant documents can be accessed), the publication of the decisions putting in place the extraordinary measures, the conditions for and the amount of lump sum compensation to be paid to individuals who were holders of certain eligible liabilities under specific conditions and the proceedings in which the former holders could seek access to information or documents and/or compensation for the loss resulting from the extraordinary measures. It provides for a possibility of collective litigation, a formation of a group of experts, and the resumption of the proceedings which were previously suspended. According to the 2020 Remedy Act former holders should be able to file actions within seven months of the publication of the notice of the establishment of the virtual data room in the Official Gazette. It envisages that the cases would be dealt with exclusively by the Maribor District Court. 48.     The 2020 Remedy Act also provides for a reversed burden of proof and states that it is for the Bank of Slovenia to prove that the conditions set out in sections 253a and 261a (5) of the Banking Act were met (see paragraphs   55 and 56 below). Subsequent events 49.     In its report concerning the opening of the new judicial year issued on 12 February 2020 the Supreme Court raised concerns about the ability of the Maribor District Court, as the only court with jurisdiction over claims under the 2020 Remedy Act, to deal with the potentially very high influx of cases. The number of plaintiffs was estimated at over 100,000. The Supreme Court noted that the proceedings as currently regulated would take at least sixty months to reach the decision concerning the grounds (which is a stage prior to the determination of the amount of compensation). 50.       The Bank of Slovenia lodged a request for the review of constitutionality of almost all provisions of the 2020 Remedy Act and section 350a of the Banking Act (U-I-4/20), together with a motion to stay its implementation, a request for priority treatment and a motion to refer the case for a preliminary ruling to the CJEU. The Bank of Slovenia invoked several provisions of the Constitution and the principle of the autonomy of the ECB and national central banks referred to in Article   130 of the Treaty on the Functioning of the European Union (“the TFEU”) and the principle of the prohibition of monetary financing referred to in Article   123 of the TFEU. It also mentioned that there were 100,000   potential claimants (former holders) and that the damage relating to the disclosure of otherwise confidential information would therefore be irreparable. 51.     On 5 March 2020 the Constitutional Court suspended the implementation of the 2020 Remedy Act, pending the review of its constitutionality. Any proceedings instituted under the aforementioned act and the running of the relevant deadlines were suspended. The Constitutional Court noted that the deadline for the implementation of the 2016 Decision had expired on 15 May 2017 and that the concerns about the lack of an effective remedy available within a reasonable time could thus not be ignored. However, it considered it nevertheless necessary to suspend the implementation of the 2020 Remedy Act. It also decided that the case would be considered with absolute priority. 52.     On 28 January 2021, the Constitutional Court referred eight questions with regard to the interpretation of EU law to the CJEU ( Banka Slovenije v Državni zbor Republike Slovenije , C-45/21). They concerned, inter alia , the prohibition of monetary financing, the independence of the Bank of Slovenia and professional secrecy and confidentiality related to the supervision of banks. The Constitutional Court requested the CJEU to consider the questions in an expedited procedure. The proceedings before the Constitutional Court were suspended pending the CJEU’s decision. RELEVANT LEGAL FRAMEWORK CONSTITUTION 53.     The relevant parts of the Constitution of the Republic of Slovenia read as follows: “Article 23 (Right to Judicial Protection) Everyone has the right to have any decision regarding his rights, duties, and any charges brought against him made without undue delay by an independent, impartial court constituted by law ... ... Article 33 (Right to Private Property and Inheritance) The right to private property and inheritance shall be guaranteed. ... Article 157 (Judicial Review of Administrative Acts) A court having jurisdiction to review administrative acts shall rule on the legality of final individual acts adopted by state authorities, local community authorities, and bearers of public authority deciding on the rights or obligations and legal entitlements of individuals and organisations, if other legal protection is not provided by law for a particular matter. The court having jurisdiction to review administrative acts shall also decide on the legality of individual actions and acts which interfere with the constitutional rights of the individual, if other legal protection is not provided.” DOMESTIC LEGISLATION 54.     The Stability of Banks Act ( ZUKSB ) came into force on 28   December 2012. It specifies who can submit an initiative for the application of measures aimed at strengthening the stability of banks and the decision-making process as well as the enforcement of the measures. It sets out the conditions under which the measures can be adopted. It provides that the shareholders and holders of hybrid financial instruments should share the burden regarding the past losses. 55.     The Banking Act ( ZBan-1 ) was in force from 29   December 2006 until 13 May 2015, when it was replaced by the New Banking Act ( ZBan ‑ 2 ). On 14 November 2013, the National Assembly amended the Banking Act ( ZBan-1L ) in order to introduce new extraordinary measures, i.e. the “cancellation or conversion of eligible liabilities”. The Bank of Slovenia was authorised to take the said measures with a view to preventing the collapse of a bank and maintaining the stability of the financial system. Section 253a of the Banking Act set out the grounds that justified the extraordinary measures in the interest of the stability of the financial system. It provided, as far as relevant, as follows: “(1)     The Bank of Slovenia issues a decision on extraordinary measures if: 1.     an increased risk concerning that bank is demonstrated, and 2.     there is an absence of circumstances which could indicate that the reasons for the increased risk [mentioned] in the previous point would cease in due time. 3.     it is not likely that other measures of the Bank of Slovenia based on this law could ensure short- and long-term capital sufficiency and appropriate liquidity and 4.     if the measures are in the public interest of preventing the threat to the stability of the financial system. (2)     For the purposes of the previous paragraph it should be considered that the increased risk is presented if the bank does not ensure or will during the next six months likely not ensure minimal capital requirements pursuant to ... or an appropriate liquidity pursuant to ... and the conditions for withdrawing