CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 5 décembre 2023

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page-break-inside:avoid; page-break-after:avoid; padding-left:0.11pt; font-family:Arial; text-transform:uppercase } .s7ED160F0 { text-decoration:none } .sC36A6361 { font-family:Arial; color:#000000 } .s67CAFE05 { margin-top:14pt; margin-left:18.45pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-family:Arial; text-transform:uppercase } .s2D9C6089 { margin-top:12pt; margin-bottom:12pt; text-indent:14.2pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s84651E4E { margin-top:14pt; margin-left:14.2pt; margin-bottom:3pt; text-align:justify } .s69DCC830 { margin-top:36pt; margin-bottom:0pt } .s4598CDF { width:70.9pt; display:inline-block } .sD8AE9261 { width:36.9pt; display:inline-block } .sB1A859A2 { width:116.43pt; display:inline-block } .s5D826FD4 { width:25.88pt; display:inline-block } .s1B61D60 { width:156.43pt; display:inline-block }     FOURTH SECTION DECISION Application no. 4558/20 BCR BANCA PENTRU LOCUINȚE S.A. against Romania   The European Court of Human Rights (Fourth Section), sitting on 5   December 2023 as a Chamber composed of:   Gabriele Kucsko-Stadlmayer , President ,   Faris Vehabović,   Branko Lubarda,   Anja Seibert-Fohr,   Ana Maria Guerra Martins,   Anne Louise Bormann,   Sebastian Răduleţu , judges , and Ilse Freiwirth, Deputy Section Registrar, Having regard to the above application lodged on 16 January 2020, Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant company, Having deliberated, decides as follows: THE FACTS 1.     The applicant company, BCR Banca pentru Locuințe S.A., is a Romanian company which was registered in 2008 and is based in Bucharest. It was represented before the Court by Mr D. Bollecker, a lawyer practising in Strasbourg. 2.     The Romanian Government (“the Government”) were represented by their Agent, Ms O.F. Ezer, of the Ministry of Foreign Affairs. The circumstances of the case 3.     The facts of the case, as submitted by the parties, may be summarised as follows. Background to the case 4.     The applicant company is a private company, whose shareholders are private banks or financial institutions owned or controlled by one of the largest financial services providers in Central and Eastern Europe, the Austrian private banking group E. 5.     On 1 January 2003 Law no. 541/2002 on collective savings and loans for housing-related activities entered into force. The Law aimed to introduce and regulate, for the first time in Romania, building societies ( bănci de economisire și creditare în domeniul locativ ) and the associated collective system of savings and loans for housing-related activities ( activităţi în domeniul locativ ), also known as the Bauspar system. The Law covered the main rules governing the above-mentioned system as well as the scope and breadth of a building society’s activities and responsibilities. 6 .     On 1 January 2007 Law no. 541/2002 was repealed by Government Emergency Ordinance no. 99/2006 on lending institutions and capital adequacy (“the Ordinance”) and the rules for its implementation (“the implementing rules”). 7 .     On 3 July 2008 the National Bank of Romania ( Banca Naţională a României – “the BNR”) authorised the applicant company to operate as a building society. The applicant company was the only building society authorised to operate in the country apart from building society A., which was owned by the Austrian private banking group R. 8.     The building societies were essentially banks specialising in the long ‑ term financing of housing-related activities (such as purchasing, constructing or renovating residential property) and were an inherent part of the Bauspar system. They could accept savings deposits from their customers and then use the amounts accumulated to lend them money at fixed interest rates. The resulting savings and loan agreements and the activities associated with their implementation constituted an essential part of their business. 9.     To ensure the stability of the system even in times of economic crisis, the national authorities restricted the income-generating activities available to the building societies that could cover their operating costs. For example, they could only invest in low-risk financial instruments, and their income from deposits and loans was capped. 10 .     To stimulate participation in the Bauspar system, the national authorities decided to offer building societies and their customers certain financial and tax benefits not otherwise available to ordinary banks in the market and their customers. Amongst other things, people who had signed a savings and loan agreement with a building society could benefit from a State bonus ( primă de stat ). 11 .     The bonus was granted annually during the entire duration of the saving period of the agreement. To benefit from it, a customer had to meet certain conditions and the building societies had to include a clause in all agreements authorising them to claim the bonus on behalf of their customers. Audit report and measures imposed 12 .     From July 2008 to December 2015 the applicant company concluded over 500,000 savings and loan agreements with customers. In December 2015 almost 380,000 agreements were ongoing. 13.     From 20 July to 26 October 2015 the Romanian Court of Accounts ( Curtea de Conturi a României – “the CCR”) audited the applicant company. The audit reviewed the manner in which the applicant company had managed the State bonuses granted to its customers. 14 .     On 26 October 2015 the CCR issued an audit report stating that the applicant company had calculated, claimed and released the State bonuses in an unlawful manner. The main points can be summarised as follows. (i)     The applicant company had taken into account the fees charged to its customers for signing the savings and loan agreements and for managing their accounts, as well as fees that could not be used to calculate interest, to calculate the bonuses. (ii)     It had released bonuses to customers who had saved for five years or more and whose agreements had been either cancelled, unallocated or allocated without the customer taking out a loan or who had failed to save the total amount stipulated in the agreements, without requesting proof that they were using the funds for housing-related activities. (iii)     It had not transferred to the State the interest accrued on bonuses which, after being deposited in customers’ accounts, were eventually returned to the Ministry of Regional Development and Housing ( Ministerul Dezvoltării Regionale și Locuinţei – “the MDRL”) because the conditions for their release had not been met. (iv)     It had concluded savings and loan agreements with minors and people over the age of 65. Moreover, these agreements had been cancelled before or without being allocated or before the customers had saved the amounts stipulated in the agreements, and the customers had used the bonuses for purposes other than for housing-related activities. (v)     It had released bonuses without requesting sufficient proof that the funds were being used for housing-related activities. (vi)     It had released bonuses to transferees ( cesionari ) of savings and loan agreements exceeding the amount that could be paid to an individual. 15.     The report found that the overall damage suffered by the State budget because of the applicant company’s actions, as far as it could be calculated by the auditors, was an estimated 269,367,454 Romanian lei (RON   –   60,805,287 euros (EUR)). 16.     The report also found that, pursuant to the Ordinance, the applicant company was a guarantor ( fidejusor ) jointly liable with its customers for the bonuses unlawfully received by the latter. It therefore had to return the above-mentioned amount to the MDRL along with the corresponding penalties for its failure to comply with its lawful obligations, which amounted to an estimated RON 54,994,325 (EUR 12,587,499). 17.     Lastly, the report noted that the applicant company was legally required to establish the exact extent of the damage suffered by the State in respect of each of the above-mentioned deficiencies and take measures to remedy them. 18 .     The CCR’s findings and conclusions above were based, among other things, on the point of view of the Ministry of Public Finance ( Ministerul Finanţelor Publice – “the MFP”) submitted during the audit, which explained its position on the interpretation of the relevant provisions of the Ordinance and its implementing rules (see paragraphs 96-97 below). The MFP’s point of view was asked for by the CCR and, in essence, confirmed its interpretation of those provisions. Objections to the audit report and the CCR’s decisions 19 .     On 9 November 2015 the applicant company objected to the findings of the audit report before the CCR. It argued that the CCR had misunderstood the Bauspar system and misinterpreted the Ordinance and its implementing rules. 20 .     On 10 December 2015 the CCR examined the audit report and the applicant company’s objections. By decision no. 17, delivered on the same date, the CCR reiterated the findings of the audit report. 21.     In addition, the CCR held that the applicant company had to review its internal practices and remedy the deficiencies found by 31 January 2016 to ensure that ongoing agreements were not affected. Furthermore, it was under an immediate and permanent obligation to ask customers who requested the release of bonuses for proof that they were being used for housing-related activities. Also, on account of its joint liability with its customers, it had to determine the exact extent of the damage caused by the deficiencies found, take measures to remedy them and pay the corresponding penalties by 30 April 2016. 22.     The CCR further held that, in addition to the above-mentioned measures, the applicant company could take any other such measures as it saw fit to remedy the deficiencies. The CCR also pointed to the fact that, under the law concerning its organisation, any failure by the applicant company to implement and pursue the measures indicated by the CCR and therefore fix the damage caused constituted an offence and was punishable by imprisonment or a fine. 23 .     On 15 December 2015 the CCR notified its decision to the applicant company and informed it that it could challenge the decision before an appeal commission within the CCR (“the Commission”). 24 .     On 23 December 2015 the applicant company challenged decision no.   17 of 10   December 2015 (see paragraph 20 above) before the Commission and asked for the measures imposed on it to be cancelled. In the alternative, it asked for the time-limits afforded for implementation of the measures to be extended. The applicant company argued that the CCR had failed to consider and examine its objections (see paragraph 19 above) given that its decision had merely reiterated the findings of the audit report and reiterated those objections. 25 .     On 10 February 2016 the MDRL informed the applicant company that from 20 July to 27 October 2015 the CCR had audited its manner of using the funds allocated for bonuses and that by decision no.   19 of 10   December 2015 the CCR had ordered it to recover from the applicant company and building society A. the damage caused by their actions. The MDRL also stated that the damage in question was described in decisions nos.   17 and 18 delivered by the CCR in respect of the two building societies on 10   December 2015 after the CCR had audited them. 26 .     On 29 February 2016 the Commission dismissed the applicant company’s challenge and request for an extension of the time-limit for implementation of the measures imposed on it (see paragraph 24 above). It held that the CCR had considered the applicant company’s objections to the audit report and maintained its position. 27 .     The Commission also held that the Ordinance provided that the Bauspar system was financed by building society customers, the State and building societies. The latter had to provide loans by using their financial resources and their customers could borrow for housing-related activities at the end of the saving period, but if they chose not to, the bonuses could not be released to them. Referring to point (i) of the audit report the Commission held that the applicant company had used incorrect information when claiming the bonuses. Court proceedings Proceedings before the Bucharest Court of Appeal (a)    Application to stay the enforcement of the CCR’s decisions (i)       Application to stay the enforcement 28.     On 10 March 2016 the applicant company applied to the Bucharest Court of Appeal (“the Court of Appeal”) to stay the enforcement of the CCR’s decisions (see paragraphs 20 and 26 above) pending the outcome of the proceedings on the merits (see paragraph 36 below). 29.     It argued that if it were to implement the measures imposed on it immediately, it could suffer imminent and foreseeable pecuniary and non ‑ pecuniary damage and a serious disruption of its activity. In particular, its reputation and current and future customers could be lost, its operations could be frozen and it could collapse. 30.     The applicant company pointed to the fact that the contracts signed with minors and people over 65 were threatened with irreversible cancellation. In addition, amending each of the almost 380,000 ongoing contracts and recalculating the deposits of all those customers required a massive logistical effort. Furthermore, the amounts it had to return to the State were almost five times higher than its share capital and three times higher than its own funds. The only way it could return those amounts to the State was to either take legal action against at least each of an estimated 439,000 of its customers or pay the amounts in question itself, as requested by the authorities. Either way, however, the financial repercussions for it were colossal and very likely impossible to sustain. 31 .     Reiterating some of the arguments raised before the Commission and before the Court of Appeal during the proceedings on the merits (see paragraphs and 24 above and 36 below), the applicant company argued that there was a reasonable suspicion that the CCR’s manner of interpretation of the Ordinance and its implementing rules had been unlawful given that it had contradicted a long-standing practice of other public institutions responsible for its supervision. (ii)     The Court of Appeal’s judgment 32 .     On 12 April 2016 the Court of Appeal stayed the enforcement of the CCR’s decisions pending the outcome of the proceedings on the merits. 33.     It held that the applicant company had appropriately challenged the entire legal argument used by the CCR to justify its measures, including the latter’s views on the national authorities’ reasons behind the implementation of the Bauspar system and its interpretation of the relevant law. 34 .     Moreover, since 2008 no other public institution responsible for the applicant company’s supervision had flagged up any deficiencies in the manner it had applied the legislation in question. Not even the CCR had pointed to any deficiencies connected to its operations during a 2011 audit of the MDRL. 35.     Furthermore, the enforcement of the measures against the applicant company, given their extent, could affect its operations and prove difficult to reverse in the event that the measures were quashed. (b)    Proceedings to quash the CCR’s decisions (i)       The applicant company’s arguments 36 .     On 10 March 2016 the applicant company appealed against the CCR’s decisions (see paragraphs 20 and 26 above) before the Court of Appeal and asked the court to quash them. It reiterated the arguments it had raised in its objections against the audit report and in its challenge before the Commission (see paragraphs 19 and 24 above). 37 .     In addition, the applicant company argued that the national Bauspar system had largely remained the same since 2003 and that the CCR’s findings that the payment of bonuses was dependent on the building society customers borrowing at the end of the saving period were unlawful. Furthermore, it was clear that the CCR’s interpretation of the law was unique and inconsistent with the practice of other public institutions, such as the BNR and MDRL, or with the practice of building society A., given that the latter had interpreted the relevant law in the same manner as the applicant company. 38 .     The CCR had interpreted and applied the rules governing the Bauspar system in a manner which had violated the principles of foreseeability and legal certainty and undermined the public’s confidence in the predictability of the authorities’ actions. The CCR had also violated the applicant company’s right of defence because it had ignored its arguments or examined them based on preconceived ideas, failed to consider its objections to the audit report and made the alleged violations public even before it had delivered decision no.   17 (see paragraph 20 above). 39.     The CCR’s actions and measures had effectively forced it to damage its customers’ interests, had seriously and irremediably affected its image and credibility and, if implemented, would put an end to its business. (ii)     The Court of Appeal’s judgment 40 .     By a judgment of 1 March 2017 the Court of Appeal allowed the applicant company’s appeal in part and quashed the CCR’s findings concerning points (ii) to (v) of the audit report (see paragraph 14 above) along with the corresponding measures. It upheld, however, the CCR’s findings concerning points (i) and (vi) of the audit report along with the corresponding measures. 41.     The court held that Law no. 541/2002 was inapplicable in the case. Nonetheless, before it could examine the applicant company’s challenge and arguments it was essential to review the relevant provisions of Law no.   541/2002 and the Ordinance and their implementing rules in the light of the related explanatory memorandums and to consider the history and specifics of the Bauspar system. 42.     The court compared the relevant provisions of Law no.   541/2002 and the Ordinance as well as their implementing rules, observing that the Ordinance had made some changes to some of the provisions disputed by the parties with the aim of avoiding a divergent interpretation of the law and that the most important changes for the purposes of the applicant company’s challenge were those made to the wording of Article 315 of the Ordinance. 43.     The court shared the applicant company’s view – which in the court’s opinion was confirmed by the explanatory memorandum to the Ordinance – that the fact that borrowing was optional for Bauspar savers was the essence of the system. 44 .     The court held that the applicant company had raised several arguments concerning the unlawfulness of the CCR’s decisions viewed overall. Nevertheless, it found that the arguments in question could not give rise to the conclusion that the CCR’s decisions were unlawful overall. 45 .     The court held in this connection that the applicant company could not argue that any possible divergence or difficulties in interpreting a legal text automatically gave rise to the conclusion that the law in question was unclear or violated the principle of legal certainty and legitimate trust in the actions of public authorities. The CCR’s decisions were not unlawful overall as long as the court could conduct an individual examination of the impugned legal provisions and could reach a conclusion on the merits of the case by applying the rules of interpretation of legal norms. 46.     Furthermore, the CCR could not have violated the applicant company’s right of defence because it had made public its findings before decision no.   17 had actually been delivered or because it had examined the applicant company’s arguments only briefly as long as the applicant company could challenge the CCR’s decisions before the courts. 47 .     As to points (i) and (vi) of the audit report, the court held that the CCR’s findings were correct and that the applicant company’s claims in this connection were ill-founded. 48.     As regards point (ii) of the audit report, the court held that the applicant company’s interpretation of the legal provisions in question was correct. Under Article 315 § 1 of the Ordinance, a person only had to meet two conditions to be able to benefit from the bonus without having to prove that he or she was using it for housing-related activities. In particular, the person had to conclude a savings and loan agreement for a minimum of five years and refrain from withdrawing all or part of his or her savings before the end of the saving period. The exceptions provided for in Article   315 §   2 could not lead to a different conclusion. 49.     The CCR’s view that a person was only exempted from providing such proof during the saving period of the agreement had no legal foundation and deprived Article 315 § 1 of the Ordinance of any meaning. It was also based on a misinterpretation and an erroneous application of Article 4 § 1 and Article 5 § 1 of the Ordinance’s implementing rules. 50.     The court took the view that, under Article 3 § 2 (a) and Article   4 §   1 of the implementing rules, only people who found themselves in the circumstances described in Article 3 § 2 (a) had to prove the immediate and direct use of the bonuses for housing-related activities. Under Article   5 §§   1 and 2 of the implementing rules, however, these people could submit the proof in question within two years from the date that the balance of their savings account was released. 51.     The court held that the above-mentioned interpretation of the law was confirmed by the relevant implementing rules of Law no. 541/2002, which were maintained in effect by the Ordinance and its implementing rules. 52.     The court also found it relevant in this connection that the explanatory memorandum to Law no. 164/2018 (see paragraph 98 below) stated that under the Ordinance and its implementing rules, building society customers could benefit from the State bonus without having to prove that they were using the funds for housing-related activities if they saved with the building societies for more than five years. The explanatory memorandum also stated that Law no. 164/2018 would introduce, for the first time, an obligation for Bauspar savers to prove that they were using the bonuses for housing-related activities if they wished to have the bonuses released to them. 53.     The court held that the CCR had relied on other arguments in order to justify its interpretation of the law, including the fact that a different interpretation from that endorsed by it could have made the national Bauspar system inefficient. The court found, however, that such arguments could constitute reasons for a change in the legislation, but could not justify an interpretation of the law that changed its meaning. 54.     As to point (iii) of the audit report, the court held that the impugned measure was unlawful because of its findings concerning point (ii) above. 55 .     As regards point (iv) of the audit report, the court held that none of the provisions of the Ordinance or its implementing rules prevented the applicant company from concluding savings and loan agreements with minors and people over 65. The conditions for entitlement to the bonus were laid down in Article 311 § 1 of the Ordinance, and neither Article 290 (b) nor Article   313 of the Ordinance could be read to exclude people under 18 and over 65 from the category of people who could possibly benefit from it. 56 .     The applicant company’s internal rules preventing minors and people over 65 from taking out loans were irrelevant since Bauspar savers did not have to borrow at the end of the saving period. 57 .     As to point (v) of the audit report, the court held that the applicant company had complied with its lawful obligations. Proceedings before the High Court of Cassation and Justice (a)    Appeal against the Court of Appeal’s judgment of 13 April 2016 58.     The CCR appealed against the Court of Appeal’s judgment of 12   April 2016 (see paragraph 32 above) before the High Court of Cassation and Justice (“the Court of Cassation”). 59.     By a final judgment of 3 October 2018 the Court of Cassation dismissed the CCR’s appeal as ill-founded. (b)    Appeal against the Court of Appeal’s judgment of 1 March 2017 (i)       The applicant company’s appeal 60 .     The CCR and the applicant company appealed against the Court of Appeal’s judgment of 1 March 2017 (see paragraph 40 above) on points of fact and law. The applicant company asked the Court of Cassation to quash the judgment as regards points (i) and (vi) of the audit report and annul the corresponding measures. Moreover, the applicant company asked the court to uphold the decision on point (iii) of the audit report but replace the reasons provided by that court for its judgment with its own arguments. Furthermore, the applicant company asked the court to dismiss the CCR’s appeal against the Court of Appeal’s judgment regarding points (ii) to (v) of the audit report. 61 .     In its submissions, the applicant company essentially reiterated its arguments concerning the national Bauspar system raised before the lower court (see paragraphs 36-37 above). In addition, it argued that the measures imposed by the CCR were unlawful. 62 .     The applicant company also argued that the Court of Appeal’s solution concerning the CCR’s findings on point (iii) of the audit report was lawful. However, the reasons provided by that court for its conclusions in this regard were partly disconnected from the issue in dispute and had to be changed. Only Law no. 164/2018 had introduced an obligation for a customer to return the interest to the State and only for contracts signed since 2017. 63.     The applicant company submitted that the Court of Appeal had reached its conclusion concerning the CCR’s findings on point (i) of the audit report by misinterpreting Article 311 § 1 and Article 312 § 1 of the Ordinance and the different terminology contained therein and by ignoring Article 7 §   3 of the implementing rules, which stated that the amounts to be taken into account for the calculation of the bonus consisted of the deposits made by a person during a relevant year.   The lower court’s conclusion that none of the fees in question could be classified as savings rendered Article   7 §§   3, 4 and   6 of the implementing rules illogical. 64 .     The applicant company also submitted in this connection that, unlike the CCR, it had interpreted the relevant legal provisions consistently and logically and took the view that the lower court’s interpretation of the legal provisions in question violated the principles of foreseeability and legal certainty. 65 .     The applicant company contended that the Court of Appeal had reached its conclusions concerning the CCR’s findings on point (vi) of the audit report by misinterpreting Article 312 §§ 2 and 3 of the Ordinance. Moreover, the court had disregarded Article 311 § 1 of the Ordinance and the relevant provisions of the Civil Code concerning the transfer of contracts. Also, Article 312 § 3 of the Ordinance and the cap imposed by it could only be applied to transferees from the date the transfer had taken effect. (ii)     The Court of Cassation’s judgment 66 .     By a final judgment of 21 June 2019 (notified to the applicant company on 18 July 2019) the Court of Cassation quashed the Court of Appeal’s judgment and re-examined the case. The Court of Cassation allowed the applicant company’s appeal in part and quashed the CCR’s findings concerning points (v) and (vi) of the audit report along with the corresponding measures. The court however upheld the CCR’s findings concerning points   (i) to (iv) of the audit report along with the corresponding measures. 67 .     The Court of Cassation held that the Court of Appeal had provided reasons for its judgment given that the essence of the parties’ dispute was the lawfulness of the measures taken by the CCR and not the applicant company’s actual conduct. 68 .     As to the audit report’s findings concerning point (i) above, the Court of Cassation held that the lower court’s conclusions were lawful and based on a correct interpretation of Article 312 § 1 of the Ordinance. Under that provision, Article 311 § 1 of the Ordinance and Article 7 § 3 of the implementing rules, the basis for the calculation of the yearly bonus was the amount saved by a person during a relevant year. That amount consisted of the money left in the person’s account at the end of the year after the applicant company had deducted its fees. 69 .     The dispute between the parties concerning the interpretation of the above-mentioned provision was generated by the applicant company’s practice and not by the fact that the provision was unclear or unforeseeable. The applicant company had chosen to deduct fees charged by it from the amounts deposited. It had not charged them separately. If the applicant company had chosen the latter option, the parties’ dispute would no longer exist. 70.     The court therefore found that the interpretation of the legal provision in question could not have posed difficulties for the applicant company. The option chosen by the applicant company for charging its fees did not change the fact that the fees constituted money charged for services which did not remain in a person’s account and did not form part of his or her savings. 71.     The court held that Article 311 § 1 of the Ordinance and Article   7 §   3 of the implementing rules had to be interpreted in the same manner given that the wording of these provisions referred to the yearly amounts deposited by a person on his or her account as savings and not those deposited as payment for the applicant company’s fees. 72 .     The fact that the fees were not specifically excluded by Article   7 §   4 of the implementing rules from the calculation of the bonus had not meant that the fees could be taken into account for the calculation in question. The exceptions provided for in the said Article only concerned funds which in essence could be considered part of a person’s savings. Since this was not the case with the fees in question, a specific reference to fees in this context would have been superfluous. 73 .     As regards the audit report’s findings concerning point (ii) above, the Court of Cassation held that the lower court had misinterpreted Article   315 §   1 of the Ordinance and Articles 4 and 5 of the implementing rules. 74.     The Court of Cassation held that, under the Ordinance and its implementing rules, the applicant company’s customers could only benefit from the bonus if they had deposited savings with it for a minimum of five   years and had not withdrawn any of their savings before the end of the specific saving period stipulated in the agreement. In exceptional circumstances, the applicant company’s customers could benefit from the bonus even if they had withdrawn their savings before the end of the saving period stipulated in the agreement. 75.     In all circumstances, however, the applicant company could only release bonuses to its customers if they submitted proof within the relevant statutory time-limit that the funds in question, including the bonuses, were being used for housing-related activities. In circumstances where the customers had withdrawn their savings before the end of the saving period stipulated in the agreement, they had to submit that proof in question immediately and directly to the applicant company. However, in circumstances where customers had withdrawn their savings after the end of the saving period stipulated in the agreement, they had to submit the proof in question within two years from the date the funds were released. 76.     The Court of Cassation held that, in the absence of such proof, the applicant company could not release the bonuses and had to return them to the MDRL. 77.     The Court of Cassation also held that a joint reading of Article   311 §   3, Article 314 and Article 315 § 1 of the Ordinance indicated that Bauspar savers were only exempted from the requirement to submit proof of use of the bonuses for housing-related activities during the saving period stipulated in the agreement while the relevant funds remained in their accounts. 78 .     The court was of the opinion that to hold otherwise would validate the argument that the authorities granted the bonus to encourage saving. Given the specific scope of the applicant company’s activities, the spirit and provisions of the Ordinance and its implementing rules, however, the bonus was offered to encourage the development of the housing market. 79 .     The Court of Cassation held that the interpretation of the provisions in question by the Court of Appeal and the applicant company had inverted the provisions and the exceptions by disregarding the whole of Article   315 §   2 of the Ordinance. 80 .     As to the audit report’s findings concerning point (iii) above, the Court of Cassation held that the lower court’s conclusion in this regard was ill ‑ founded. The audit report’s findings concerning point (iii) were not connected to those concerning point (ii) and therefore required separate examination. 81.     The Court of Cassation held in this connection that it was true that Articles 5 and 9 § 1 of the implementing rules had not imposed an obligation on the applicant company to return the interest in question along with the bonuses. Nevertheless, according to the principle that the accessory follows the principal, the interest had to be returned to the State. 82.     Under the relevant provisions of the Civil Code, the applicant company had to return the bonuses to the State if the relevant conditions in this regard were met. Where the latter conditions were met because of actions imputable to it, the applicant company also had to return the interest corresponding to the bonuses in question. The fact that the applicant company’s customers had acted in good faith during the saving period was irrelevant. What was relevant was the applicant company’s own actions. It could not be said that by releasing the bonuses in question and corresponding interest to its customers, even though the lawful conditions for releasing the funds were not met, the applicant company had acted in good faith and was therefore exempted from returning the interest. 83 .     The Court of Cassation held that all the arguments raised by the applicant company in this regard therefore had to be dismissed. 84 .     As to the audit report’s findings concerning point (iv) above, the Court of Cassation held that the lower court’s assertions in this regard were correct and justified. It found, however, that these assertions were insufficient to quash the measure in question. 85 .     The CCR had also relied on another argument to impose the measure, namely that the applicant company had released bonuses to minors and people over 65, and that the latter had used them for purposes other than housing-related activities. The Court of Cassation held that, as already indicated in connection to the audit report’s findings concerning point (ii) above, the applicant company’s customers had to prove that they were using the funds in question for housing-related activities. If they failed to do so, the applicant company had to return the bonuses. 86 .     As regards the audit report’s findings concerning point (v) above, the Court of Cassation confirmed the findings of the lower court (see paragraph   57 above). 87 .     As regards the audit report’s findings concerning point (vi) above (see paragraph 14 above), the Court of Cassation held that the Court of Appeal’s findings in this regard were ill-founded. The Court of Cassation took the view that only people who opened one or more savings and loan agreements in their own name were concerned by the cap imposed by the Ordinance and its implementing rules on the amount of the bonus that could be released to an individual. This was not the case with transferees. If the lower court’s interpretation of the law was accepted, Article 312 § 3 of the Ordinance would become applicable retroactively and simply erase the benefits gained by transferers, a possibility which was not provided for by law. Extraordinary appeals lodged by the applicant company 88.     On 14 April 2022 the applicant company informed the Court that it had lodged extraordinary appeals against the Court of Cassation’s judgment of 21 June 2019, namely an appeal for annulment ( contestaţie ȋn anulare ) and an appeal to review ( revizuire ). Both extraordinary appeals were dismissed by the Court of Cassation on 27 May and 9 November 2021 respectively. Other information provided by the applicant company The applicant company’s application to the Court 89 .     In its application to the Court, the applicant company focused its submissions almost entirely on the CCR’s measures and findings described at points (ii) and (iv) of the audit report. Nevertheless, it also stated, amongst other things, that the Court of Appeal’s judgment of 1 March 2017 had confirmed beyond any doubt that it had acted lawfully in relation to the alleged deficiencies described at points (ii) to (v) of the audit report. The applicant company further stated that the alleged deficiencies described at points (i) and (vi) of the audit report upheld by the Court of Appeal were merely issues of computation and that the related measures had had a much lower impact on it than the other measures. Report issued by the applicant company 90 .     On 13 January 2020 the applicant company issued a report explaining the development of its activities from October 2015 to December 2019 following the CCR’s audit report. The report stated that in 2016 it had stopped concluding new savings and loan agreements with customers and had drastically diminished its activities and its portfolio of agreements. In addition, it had stopped the activity of 1,132 agencies. 91.     Even though it had made a profit from 2010 to 2015, it had suffered significant losses from 2016 to 2018. These losses had been contained because its shareholders had stepped in and provided it with the financial lifeline needed to continue its operations. The applicant company had also lost the trust of its customers and eventually the customers themselves. Report issued by the CCR 92.     On 31 August 2021 the CCR issued a report concerning the implementation of its measures (see paragraph 14 above). It held that the applicant company had calculated the amounts due to the State and corresponding penalties arising from points (i) and (iii) of the audit report and had paid a total of RON 50,856,380 (EUR 10,729,194) to the MDRL. However, the applicant company had only calculated the amounts due to the State and corresponding penalties arising from points (ii) and (iv) of the audit report, but had not transferred these amounts to the MDRL. Payments made by and requested from the applicant company 93 .     On 21 and 25 January 2022, respectively, the applicant company paid RON 432,698,573 (EUR 87,590,804) to the MDRL, representing its main financial obligations toward the State arising from points (ii) and (iv) of the audit report and RON 41,603,005 (EUR 8,421,660) to the State budget representing tax due for the bonuses released to its customers unlawfully. 94 .     On 11 November 2022 the MDRL notified the applicant company that it had to pay an additional RON 388,918,758 (EUR 79,048,528) within thirty days, representing interest and penalties corresponding to its main financial obligations arising from points (ii) and (iv) of the audit report. 95.     The applicant company challenged the above notification before the courts. At the same time, it asked the courts to stay its enforcement. The applicant company’s latter request was dismissed by the Court of Appeal by a judgment of 31 January 2023 which was amenable to appeal. RELEVANT LEGAL FRAMEWORK 96 .     The relevant provisions of Government Emergency Ordinance no.   99/2006 on lending institutions and capital adequacy, as in force at the relevant time, read as follows: Article 290 “For the purposes of this [Emergency Ordinance] ... the terms ... below have the following meaning: ... b)     customer – a natural or legal person who/which concludes a savings and loan agreement [within the Bauspar system] ... by which that person acquires, because of deposits made in accordance with the agreement, the lawful right to be given a loan at the interest rate stipulated in the agreement; ...” Article 311 “(1)     Every customer [who is a] natural person with Romanian citizenship and permanent residence in Romania shall benefit from a State bonus for annual deposits made based on a savings and loan agreement concluded with a building society. (2)     Entitlement to the State bonus is established at the end of the saving year. The saving year is the calendar year in which the deposits giving entitlement to a ... bonus were made. ...” Article 312 “(1)     The State bonus shall be 25% of the amount saved by the customer in [a] given year. (2)     The State bonus may not exceed the equivalent in [RON] of [EUR] 250 ... (3)     If the customer concludes several savings and loan agreements ... and the calculated ... bonuses [due] exceed the maximum bonus allowed for the saving year, the amount of bonuses [due] shall not exceed the amount provided for in paragraph   2.” Article 313 “(1)     Customers [who are] single, as well as any spouses, separately, regardless of who has made the deposit, are entitled to benefit from the State bonus. ...” Article 314 “The State bonus shall be paid from the State budget through the budget of the Ministry ... and shall be granted by the latter ..., within a maximum of sixty days from the [day] the building society sent the request to [the Ministry]. The State bonus shall be transferred by the building society to the customer’s account.” Article 315 “(1)     In order to continually benefit from the State bonus, the savings and loan agreements must have a duration of at least five years, without the justification of use of the amounts saved for housing-related activities being necessary, and it is mandatory that no total or partial repayments of the amounts saved have been made before the end of the set saving period. (2)     Paragraph 1 shall not apply to the following situations: a)     where the amount saved and/or the contracted amount is made available after allocation, and the [person] who has saved uses the amount received for housing-related activities; ...” Article 316 “Customers who have received the ... bonus in violation of the provisions of this Emergency Ordinance or its implementing rules shall return [the bonus] to the Ministry ... within a maximum of ninety days from [the date] they have received it.” Article 317 “The procedure for granting the State bonus shall be established by the Ministry of ... Finance and the Ministry ... through implementing rules approved by a joint order.” 97 .     The relevant provisions of the implementing rules of Government Emergency Ordinance no. 99/2006, issued jointly by the MFP and the MDRL on 10 July 2009, read as follows: Article 1 “... (4)     The building society shall include clauses in the savings and loan agreement concerning: ... b)     the [customer’s] authorisation for the building society to claim the State bonus on [his or her] behalf. ...” Article 3 “(1)     A building society customer shall benefit from the State bonus annually, provided that [he or she] has concluded a savings and loan agreement of a duration of at least five years, without the justification of use of the amounts saved for housing-related activities being necessary, and that no partial or total repayments of the amounts saved have been made at the request of the customer before the end of the saving period. (2)     By way of exception to paragraph 1, customers whose savings are repaid before