JOINT DISSENTING OPINION OF JUDGES THÓR VILHJÁLMSSON, LAGERGREN, WALSH, SIR VINCENT EVANS AND GERSING, WITH REGARD TO DAMAGE

1. The applicants have claimed just satisfaction for pecuniary and non-pecuniary damage. We accept that they should be awarded just satisfaction for non-pecuniary damage for the reasons already set out in the judgment of the Court. However we regret that we cannot agree that any pecuniary damage has been proved.

2. The burden of proof rests upon the applicants to prove that they have suffered pecuniary loss under the three headings of their claim, namely, loss of income during the periods in question, a diminution of the market value of their properties and the impossibility of undertaking a full-scale redevelopment of the properties.

3. With regard to the alleged loss of income we agree with the opinion of the Court, expressed at paragraph 23, that the applicants have failed to prove any loss under this heading. With regard to the alleged diminution of the market value we note that at paragraph 24 the Court has found not only that the market value ultimately did not fall but in the case of Riddaren No. 8 had even increased. It is worth recalling the expert evidence of Mr. Ahrenby who told the Court that "investment in real estate in Sweden over the last ten years, especially, let us say, over the last six or seven years, has been extremely profitable".

4. We do not accept that the evidence established there had been a temporary fall in the market value of the properties. However, even on the hypothesis that there had been a temporary fall in value we do not agree with the judgment of the Court to the effect that a financial loss was thereby occasioned. As the applicants did not sell the properties during the periods in question a temporary fall in market value gave rise only to a notional loss. We accept the view of the Commission ’ s Delegate that such a "loss" would be relevant only if at the time the applicants had endeavoured unsuccessfully to sell their properties at a reasonable price and had been compelled to accept a lower figure. Such situations had not arisen.

5. Further, we are not satisfied that even if there had been no expropriation permits or construction prohibitions, the applicants really would have redeveloped their properties or that this would have been profitable.

6. Therefore, we do not agree that any basis exists for finding that financial loss was suffered by the applicants.

7. In respect of the non-pecuniary damage we are satisfied that just satisfaction should be assessed at 300,000 SEK for the Sporrong Estate and at 100,000 SEK for Mrs. Lönnroth .

JOINT DISSENTING OPINION OF JUDGES THÓR VILHJÁLMSSON, LAGERGREN, SIR VINCENT EVANS AND GERSING, WITH REGARD TO THE COSTS OF THE ARTICLE 50 (art. 50) PROCEEDINGS

The applicants ’ claim under Article 50 (art. 50) amounts to above 24 million SEK, and the Court has accepted 1 million SEK. Analysing the costs of the Article 50 (art. 50) proceedings, we consider that a significant part of those incurred in relation to the claim for material damages must be regarded as unnecessary and out of proportion. We are therefore of the opinion that the sum assessed for the applicants ’ costs should have been further reduced.

[*]  The case is numbered 1/1981/40/58-59.  The second figure indicates the year in which the case was referred to the Court and the first figure its place on the list of cases referred in that year; the last two figures indicate, respectively, the case's order on the list of cases and of originating applications (to the Commission) referred to the Court since its creation.

[*]   In the version of the Rules applicable when proceedings were instituted.  A revised version of the Rules of Court entered into force on 1 January 1983 , but only in respect of cases referred to the Court after that date.