JOINT CONCURRING OPINION OF JUDGE S STEINER AND HAJIYEV

1 . We agreed with the majority that there has been no violation of Article 1 of Protocol No. 1 , but on other grounds. In our view, Article 1 of Protocol No. 1 does apply, in general, to intellectual property. This was accepted by both the parties but there has never been any clear statement of this principle by the Court in the past.

2 . We therefore agree that Article 1 of Protocol No. 1 is applicable to intellectual property in general and to a duly registered trade mark.

3 . But does this also hold true for a simple trade mark application? The next step for us was to decide if the applicant for the registration of a trade mark had a “possession” within the meaning of Article 1 of Protocol No. 1. To benefit from the protection of Article 1 of Protocol No. 1, the applicant should have a claim in respect of which he can argue that he had at least a “legitimate expectation” that it would be realised. This expectation should be more concrete than a mere hope and be based on a legal provision or a legal act such as a judicial decision.

4 . In the present case, as the Chamber judgment correctly pointed out, there were strong economic interests attached to the trade mark application. To give an example from Community law, Regulation No. 40/94 1 on the Community t rade m ark states that a trade mark application has to be considered as “object property”. Such an object can, under the domestic legislation of most States (including Portugal ), be transferred, given as security, licensed and so on. This means that a trade mark application has some commercial value despite the fact that the application for registration may not be successful. In such a transaction the application will be bought and sold with the attendant commercial risk. The purchaser buys in the knowledge that the mark may not be registered. He or she assumes the commercial risk of such a transaction. The application ’ s commercial value will depend on the commercial risk in the individual case, and more specifically on the chances of the mark being registered.

5 . Are these elements sufficient to give a trade mark application the status of a “legitimate expectation”?

6 . In our view, they are not, for four main reasons. Firstly, the right claimed by the applicant company was a conditional one. As the Chamber emphasised in its judgment:

“... [ T ] he applicant company could not be sure of being the owner of the trade mark in question until after final regist ration and then only on condition that no objection was raised by a third party .”

In other words, the applicant company had a conditional right, which was extinguished retrospectively for failure to satisfy the condition, namely that it did no t infringe third-party rights (paragraph 50 of the Chamber judgment). Our settled case-law denies the quality of “possession” to a conditional claim which has lapsed as a result of a failure to fulfil the condition. It should be pointed out that not every application for a trade mark results in registration and many applications are never likely to be registered. In other words, an application for the registration of a trade mark is quite clearly a conditional right: the condition being that it meets the conditions for registration.

7 . Secondly, Anheuser-Busch knew, when filing its trade mark application, that the application was likely to be opposed by Bud ě jovick ý Budvar , even without the intervention of a later event such as the 1986 Agreement between Portugal and Czechoslovakia . At the time the application to register the trade mark was made in 1981 , the right to use the Budweiser trade mark was already being discussed globally between the applicant company and Bud ě jovick ý Budvar . As stated above, litigation was already pending in courts throughout Europe . As the applicant company itself recognised, negotiations were under way between Anheuser-Busch and Bud ě jovick ý Budvar with a view to reaching an agreement concerning the use of the Budweiser trade mark. In such circumstances, one could reasonably argue that the applicant company ’ s claim was far from constituting an asset in respect of which it could claim to have a “legitimate expectation” that it would be realised. And that situation, we w ould point out, already existed before th e entry into force of the 1986 B ilateral Agreement.

8 . Thirdly, there may have been a problem if, as in Beyeler v. Italy ([GC], no. 33202/96, ECHR 2000-I) , the applicable provision of domestic law was not sufficiently accessible, precise and foreseeable. In that case the Court examined whether the fact that the domestic law left open the time-limit for the exercise of a right of pre-emption by the State in the event of an incomplete declaration without, however, indicating how such an omission could subsequently be rectified could amount to a violation of Article 1 of Protocol No. 1. Such a situation could indeed lead to the conclusion that an interference with the right to the peaceful enjoyment of one ’ s possession would be unforeseeable or arbitrary and therefore incompatible with the principle of lawfulness. In the instant case we have in mind a situation in which the trade mark application filed by Anheuser-Busch could be challenged for an indefinite period of time. However, this was not the case. As the Chamber judgment pointed out , the relevant Portuguese legislation was clear, precise and reasonable, in that it provided a clear time-limit of three months in which third parties could object to the registration of a trade mark. Therefore there has been no violation of Article 1 of Protocol No. 1 on account of a possible procedural problem.

9 . Fourthly, it may also be said that, conversely, the registration criteria relied on by Anheuser-Busch were not clear. The doubts as to the proper interpretation of the registra tion criteria and the complexities of having to analyse the various international instruments in question meant that it was ne ver a foregone conclusion that Anheuser-Busch ’ s trade mark application would be registered , in other words, there was no justified reliance on a legal act which had a sound legal basis (see, in this respect, Pine Valley Developments Ltd and Others v. Ireland , 29 November 1991, Series A no. 222 ).

10 . The four above-mentioned reasons lead us to the conclusion that there was no sufficient basis in the national legislation, or in the settled case-law of the domestic courts, to allow the applicant company to claim that it had a “legitimate expectation” that was protected under Article 1 of Protocol No. 1 . As the Court stated in Kopeck ý v. Slovakia ([GC], no. 44912/98, § 52, ECHR 2004-IX) : “ ... where the proprietary interest is in the nature of the claim it may be regarded as an ‘ asset ’ only where it ha s a sufficient basis in national law, for exam ple where there is settled case- law of the domestic courts confirming it . ”