CONCURRING OPINION OF JUDGE VAJIĆ

I have voted with the majority in favour of finding a violation of Article 1 of Protocol No. 1. However, I do not agree with the interpretation of “legitimate expectation” as set out in the judgment, in particular in paragraph 173. With all due respect, I think that the following passage taken from paragraph 173 is misleading (see Kopecký v. Slovakia [GC], no. 44912/98, ECHR 2004 ‑ IX):

“However, in certain circumstances, a ‘legitimate expectation’ of obtaining an asset may also enjoy the protection of Article 1 of Protocol No. 1. Thus, where a proprietary interest is in the nature of a claim, the person in whom it is vested may be regarded as having a ‘legitimate expectation’ if there is a sufficient basis for the interest in national law, for example where there is settled case-law of the domestic courts confirming its existence.”

According to the established case-law, if a person has a proprietary interest in the nature of a claim which has a sufficient basis in national law, he or she has an asset capable of attracting the protection of Article 1 of Protocol No. 1 (see Kopecký , cited above, § 42). It is therefore unnecessary to introduce the notion of legitimate expectation, which, on the basis of Pine Valley Developments Ltd and Others v. Ireland (29 November 1991, Series A no. 222) and Stretch v. the United Kingdom (no. 44277/98, 24 June 2003), applies in a far more limited set of circumstances.

Moreover, the judgment actually states at paragraph 178:

“The Court thus considers that the interests associated with exploiting the licence constituted property interests attracting the protection of Article 1 of Protocol No. 1 (see, mutatis mutandis , Tre Traktörer AB , ... § 53).”

Therefore, I do not see the need to refer in addition to a legitimate expectation.

JOINT PARTLY DISSENTING OPINION OF JUDGES SAJÓ, KARAKAŞ AND TSOTSORIA, JOINED IN PART BY JUDGE STEINER

We are in full agreement with the present judgment except as to the award of just satisfaction. We do not think that the award is excessive, nor do we find it insufficient. Instead, we consider that the question of the application of Article 41 is not ready for decision.

While the Consiglio di Stato found that there was a causal link between the conduct of the administrative authorities and the damage alleged by the applicant company, it considered that the compensation should be calculated on the basis of the legitimate expectation of being allocated the broadcasting frequencies by the appropriate authorities. For this reason, in determining the losses sustained the Consiglio di Stato considered that the applicant company should have known that it was unlikely to obtain the frequencies in question and it did not order an expert valuation. This approach was rejected by the Court (see paragraph 175 of the judgment). The Court found that the licence granted to the applicant company had been deprived of its substance. Furthermore, the Court itself found the refusal to order an expert valuation to be unacceptable (see paragraph 216 in fine ).

The applicant company indicated that it had incurred expenses including the renting of studios and the equipment needed to pursue the corresponding economic activity, and it submitted an expert assessment of its loss of profits based on the profits achieved by Retequattro, the over-quota channel which should have relinquished the frequencies allocated to the applicant company.

In the absence of an expert opinion which would have shed at least some light on the necessity and pertinence of the alleged expenses and the expected loss of profit, we find it impossible to determine the damage sustained by the applicant company. Such an expert opinion, subject to an appropriate possibility for the parties to challenge it, would have enabled us to calculate at least the approximate amounts capable of redressing the damage. Moreover, this procedure would have opened the way for a friendly settlement which would have satisfied the requirements of fair compensation.