JOINT PARTLY DISSENTING OPINION OF JUDGES POPOVIĆ AND MIJOVIĆ

We respectfully disagree with the majority on two major points. Firstly, we consider that the first applicant in this case, the limited liability company Centro Europa 7 S.r.l., did not have victim status. Secondly, the applicant company was on no account entitled to bring a case before the Court for the sole purpose of rectifying the amount it had been awarded at domestic level. Our reasons are the following.

The majority of our colleagues stated in paragraph 45 of the judgment that in a judgment of 20 January 2009 the Consiglio di Stato awarded the applicant company the amount of 1,041,418 euros in compensation. This clearly proves that the loss sustained by the applicant company has been compensated. There were therefore no grounds for applying to the Court, which the applicant company did on 16 July 2009. The applicant company lost its victim status because it had been afforded compensation at the national level. Its application lodged with the Court had the goal of rectifying the amount awarded by the national court.

The Court laid down the rule concerning the amount of compensation as early as in 1986, in Lithgow and Others v. the United Kingdom (8 July 1986, § 102, Series A no. 102). The rule says that the amount of compensation falls within the margin of appreciation of the member State, unless the amount in question may be considered “grossly inadequate”.

In its subsequent case-law the Court clarified the rule, stating that even a sum which was grossly inadequate (and might in extreme cases amount to zero!) could be found acceptable where there were exceptional circumstances (see Jahn and Others v. Germany [GC], nos. 46720/99, 72203/01 and 72552/01, § 94, ECHR 2005-VI).

In the present case the applicant company’s intention was to counter the general rule set forth in Lithgow and Others by referring to the rule laid down in Scordino v. Italy (no. 1) ([GC], no. 36813/97, § 103, ECHR 2006 ‑ V), Cocchiarella v. Italy ([GC], no. 64886/01, ECHR 2006 ‑ V) and Musci v. Italy ( [GC], no. 64699/01, ECHR 2006 ‑ V). The latter rule, however, falls within the scope of the main rule stemming from Lithgow and Others , for the Court held in Scordino (cited above, § 103) that the compensation awarded “was inadequate”. It is therefore clear that the rule in Scordino merely followed the previous case-law, that is, the rule in Lithgow and Others , which in our view applies to the present case.

The assessment of the facts in Scordino was different from the assessment in Lithgow and Others , but the rule remained unaltered. In other words, the term “inadequate” in the Scordino judgment (cited above, § 103) can only be understood in the light of the Lithgow and Others rule, that is, attaining the standard of “grossly inadequate” in respect of proportionality. The Court basically took the same stance in paragraph 98 of Scordino , where it referred, inter alia , to Lithgow and Others , invoking the general rule on the proportionality of compensation.

Besides, there is no reason whatsoever to find that the compensation in the present case was inadequate. In our view, the present case can be distinguished from Scordino . The latter case concerned the expropriation of land, whereas the case at hand is about a broadcasting licence for television programmes. The fluctuations of market prices for the two goods mentioned may be comparable, but they are not identical and the domestic judiciary is better placed than an international court to assess the amount due in compensation. The applicants in Scordino (cited above, § 85) relied on the fact that the flats built on the expropriated land could subsequently be sold and therefore bring a profit to private individuals. However, in the present case there is not enough reason to hold that the sum awarded in compensation to the applicant company at domestic level was inadequate.

We would also underline the fact that the amount of money awarded in compensation to the applicant company at domestic level was indeed considerable. It could by no means be labelled as “grossly inadequate”. The Court cannot speculate on the applicant company’s potential success in business, the fact on which the sum awarded in compensation could allegedly have depended. The applicant company’s position was properly assessed by the national court of law, which found in its favour. What is more, the majority did not base their ruling on an expert valuation of the loss allegedly sustained by the applicant company, but merely awarded it a lump sum. Therefore, even if the applicant company could have been considered to have preserved its victim status – a position which we do not find to be justified – we believe that the Court should have observed the margin of appreciation of a member State.

DISSENTING OPINION OF JUDGE STEINER

(Translation)

I am unable to share the opinion of the majority on the two fundamental aspects of this case: the alleged violations of Article 10 and of Article 1 of Protocol No. 1.

The factual situations underlying the applicant company’s complaints are, in my view, clearly distinct.

As regards the first of these situations, relating to the alleged inability to broadcast on the basis of the 1999 decision of principle, it falls outside the Court’s jurisdiction since it does not comply with the six-month rule .

According to the Government, in its decision of 31 May 2008 the Consiglio di Stato settled with final effect the issue arising from the failure to allocate frequencies on the basis of the 1999 decision.

A careful reading of the reasoning and, above all, the operative provisions of the Consiglio di Stato ’s decision appears to support that argument. Furthermore, the judgment of January 2009 confirms this approach to the issue, since it deals only with the residual aspect of the applicant company’s claim in relation to Article 1 of Protocol No. 1.

On this point, the Grand Chamber’s judgment (see paragraphs 100-04) does not appear to reflect the reality of the legal situation.

Firstly, in my view we are not dealing with a continuing situation since, as I have mentioned, the situation in issue had been clarified by the decision of 31 May 2008. From that date it had become obvious that the applicant company was no longer lawfully entitled to contest the merits of the non-allocation of the frequencies envisaged by the 1999 decision.

It was accordingly required to lodge its application in relation to this issue within the six-month time-limit.

I would point out that there is consistent and long-established case-law on the subject.

Thus, not only does the six-month rule result from a special provision and constitute an element of legal stability, it is also a matter of public policy and cannot be disregarded by States on their own initiative.

The six-month rule is, according to our case-law, a question which is linked to observance of the European public order and which can be raised by the Court of its own motion at any stage of the proceedings.

The subsidiarity principle, which is constantly mentioned as the guiding principle of the supervisory system, requires the national courts to be given precedence in the interpretation of domestic law.

I would emphasise in this connection that the Court’s “jurisdiction to verify that domestic law has been correctly interpreted and applied is limited” and that “it is not its function to take the place of the national courts, its role being rather to ensure that the decisions of those courts are not flawed by arbitrariness or otherwise manifestly unreasonable” (see Anheuser-Busch Inc. v. Portugal [GC], no. 73049/01, § 83, ECHR 2007-I).

What holds true for the assessment of compliance with domestic law also applies to the determination of what was the final domestic decision in respect of a particular complaint, unless the decision of the Consiglio di Stato in the present case is found to have been arbitrary or manifestly unreasonable.

Next, I consider that the judgment wrongly mixes up two distinct aspects.

The assessment of the amount to be awarded to the applicant company in damages concerned the quantification of the damage suffered and not the allocation of frequencies, that issue having been res judicata since 31 May 2008.

As regards the second factual situation, relating to respect for the right of property, the question seems clear to me. The reasons given by the Consiglio di Stato in its judgment of 20 January 2009 are convincing and reasonable.

The Consiglio di Stato found the State liable for the lengthy delay in allocating the frequencies. It awarded damages on that account for the “losses sustained”. It took care to draw attention to the conduct of the applicant company, which should have taken the context into account and been cautious in its investments pending the allocation of the frequencies.

As to the damage corresponding to “loss of earnings”, the Consiglio di Stato observed that there was not the slightest evidence to support the assumptions and hypotheses put forward by the applicant company. Nevertheless, it made an award to the company under this head, determined on an equitable basis.

I consider that, more than in any other circumstances, the State should be afforded a wide margin of appreciation in determining the damage resulting from an “unlawful act”, in accordance with the principles governing non-contractual liability.

As regards the question of the application of Article 41, I join the partly dissenting opinion of Judges Sajó, Karakaş, and Tsotsoria.