CONCURRING OPINION OF JUDGE FISCHBACH

Even though I voted with the majority of the Court as concerns point 6 of the operative part of the judgment , I would have preferred a fixed rate of default interest to have been set.

PARTLY DISSENTING OPINION OF JUDGE TÃœRMEN

As concerns default interest, I would have preferred, at point 6 of the operative part of the judgment , for a fixed rate to have been set.

PARTLY DISSENTING OPINION OF JUDGE GREVE

In the present case I do not share the views of the majority of my colleagues concerning the default interest to be paid.

There is agreement among the judges that the euro is a suitable reference currency for all awards under Article 41. The Court wants such awards paid promptly , and the default interest rate is intended to be an incentive for prompt payment without it having a punitive character . So far I fully agree.

Under the Court's new policy awards are made in the euro to be converted into national currencies at the day of settlement. This means that in the present case the applicant will suffer a loss in the value of her award if her national currency, the pound sterling, continues to gain strength vis-à-vis the euro . Conversion into national currency first at the day of settlement in contradistinction to a conversion at the day of the judgement will favour applicants from the euro countries and applicants that have national currencies on a par with the euro , or weaker. All other applicants will suffer a loss under the changed policy. This, in my opinion, conflicts with the provisions of Article 14 in combination with Article 41. Moreover, it conflicts with the Court's desire that the awards shall to be as fair as possible, that is to maintain the value of the award as accurately as possible.

The latter objective is also the rationale for changing the Court's previous practice of using the default interest rate in each member State as basis for the Court's decision in individual cases.

The majority is attempting to secure that awards become fair by using varying interest rates as they evolve throughout the period of default. The marginal lending rate used by the European Central Bank (ECB) when lending money overnight to commercial banks plus three percentage points will be used. This will in the present case, as in many other cases, give the applicant a lower default interest rate than the rate previously used by the Court, the national default interest rate.

The marginal lending rate is interest paid by banks to the ECB, when they need quick emergency loans. That is, it is a rate which forms the ceiling for the commercial money market; and of little, if any, practical interest to most of the applicants in the Court. The default interest rates provided for in each of the States parties to the Convention for their part do reflect the situation in the national money markets regarding the rates to be paid by applicants who may have to opt for borrowing money while awaiting payment of an award of just satisfaction. For this reason national default interest rates compensate the individuals in a manner not secured by the new default interest rate opted for by the Court's majority.

Furthermore, I believe that an applicant receiving an award ought to be able to know herself the applicable default interest rate. The marginal lending rate used by the ECB when lending money overnight to commercial banks is not easily available to all applicants in Europe. The rate has been stable for quite some time but if need be it could be set on a weekly if not even daily basis. Although it will be for the State to prove that it has actually paid the applicant in compliance with the judgment , and for the Committee of Ministers in the Council of Europe to check that this is correct, I find this to be an added bureaucratic procedure which makes it more difficult for applicants to keep track themselves. At all events the basis on which the Court's majority sets the new default interest rate is removed from the actual rate which an applicant, who needs to borrow money on an interim basis while awaiting payment of the award in a judgement, will have to pay. This is not compensated by the new varying interest rate, and this rather abstract search for fairness does not, in my opinion, merit a potentially bureaucratic new procedure.