JOINT CONCURRING OPINION OF JUDGE S SPANO AND KJØLBRO

1. We voted in favour of finding a violation of Article 1 of Protocol No. 1 to the Convention, but we write separately as our reasoning differs to some extent from the judgment.

2. We agree that the withdrawal of the applicant ’ s licence to sell tobacco products, as a consequence of the Act on the Repression of Smoking of the Youth and on Tobacco Retail, amounted to an interference with his right to the peaceful enjoyment of his possessions, involving control of the use of property within the meaning of paragraph 2 of Article 1 of Protocol No. 1 .

3. The enactment of the law restricting and controlling the selling of tobacco products clearly pursued a legitimate aim in protecting the health of the population, in particular as regards minors. Indeed, States have a wide margin of appreciation in adopting and implementing policies to protect the health of the population and in controlling the use of property, including laying down the general conditions for pursuing a commercial activity, such as retail of tobacco products (see, inter alia , Chassagnou and Others v. France [GC], nos. 25088/94, 28331/95 and 28443/95, § 75, ECHR 1999 ‑ III; and J.A. Pye (Oxford) Ltd and J.A. Pye (Oxford) Land Ltd v. the United Kingdom [GC], no. 44302/02, § 55, ECHR 2007 ‑ III ) .

4. Furthermore, under the case-law of the Court there is no general obligation to pay compensation for interferences amounting to control of the use of property, even in cases concerning the withdrawal of a licence. However, the payment of compensation may be of relevance in assessing the proportionality of the interference in question (see, inter alia , Jahn and Others v. Germany [GC], nos. 46720/99, 72203/01 and 72552/01, § 94, ECHR 2005 ‑ VI; Brosset-Triboulet and Others v. France [GC], no. 34078/02 , § 94, 29 March 2010; and Uzan and Others v. Turkey ( dec. ), no. 18240/03, § 102, 29 March 2011 ) .

5. However, Contracting States have an obligation to ensure that interferences amounting to control of the use of property, including the revocation of a licence to run a business, strike a fair balance between individual rights and the general interest. A proper balance of these interests is not attained if the person concerned has had to bear an individual and excessive burden.

6. As regards the present case, the applicant had been selling tobacco products lawfully for more than sixteen years under a licence granted by the authorities, and a significant part of the turnover came from selling tobacco products.

7. From the time of the publication of the Act on the Repression of Smoking of the Youth and on Tobacco Retail, the applicant must have been aware that the future sale of tobacco products had become precarious, being conditional on obtaining a tobacco retail concession under the new law. However, only six months after the publi cation of the Act, the applicant was informed that he had not been granted a tobacco retail concession, and only three months later he had to stop selling tobacco products, as a consequence of which his business had to close.

8. Owing to the particularly short transition period, the applicant was granted very little time to adjust to the new situation. The consequences were all the more dire as the legislation in question did not provide for any compensation for licence holders who did not obtain a tobacco retail concession under the new legislation. Furthermore, the applicant was not given any reasons for not having been granted a new licence. Nor did he have access to a legal remedy to challenge the refusal to grant him a new licence.

9. Therefore, having regard to the specific circumstances of the case and irrespective of the State ’ s wide margin of appreciation, we concur in finding that the applicant had to bear an individual and excessive burden, in violation of Article 1 of Protocol No. 1.

10. In our view, however, there is not a sufficient basis for finding that the process of granting concessions was “verging on arbitrariness” (see paragraph 36 of the judgment). Furthermore, the Court ’ s task is not to tell the State what it could or should have done in implementing its policy in this area (ibid.), but rather to assess whether the way the applicant ’ s licence was revoked in the specific circumstances of the case amounted to an unjustified interference with his property rights under Article 1 of Protocol No. 1.

11. Finally, as regards compensation for pecuniary damage, we emphasise that the sum granted to the applicant is intended to compensate for the loss of profit from selling tobacco products during a transition period that may be regarded as reasonable, allowing the applicant sufficient time to adjust to the new situation arising as a consequence of the new legislation.

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