PARTLY DISSENTING OPINION OF JUDGE LEMMENS

I voted with my colleagues in find ing violations of Article 1 of Protocol No. 1 and Article 13. I would like to underline that this is a quite extraordinary case, in which the tax administration used all sorts of tricks to avoid do ing what it had been ordered to do, namely to return the aircraft to the applicant company. This resulted in the applicant company being deprived of its aircraft “in an utterly arbitrary manner, contrary to the rule of law principle” (paragraph 215 of the judgment).

To my regret, however, I cannot join my colleagues in the decision relating to the just satisfaction awarded to the applicant company. The majority awards an aggregate sum of EUR 5,000,000. In my opinion, the question of the application of Article 41 is not yet ready for decision.

The applicant company provided the Court with calculations based on the current market value of new aircraft . I agree with the majority that this is not the correct approach ( see paragraph 258), and that the calculation of the award should be based on the current market value of aircraft of comparable technical characteristics and wear, that is , of used aircraft (see paragraph 260).

In my opinion we have not been provided with sufficient elements to make an assessment of the current market value of An-28s and L-410s, regard being had to their state at the time they were placed under the supervision of the authorities and the applicant company was denied access to them. I do not feel reassured that, within the total amount of EUR 5,000,000, there is a part that reasonably relates to the actual market value of used aircraft . There are elements in the file which suggest that the amount of EUR 5,000,000 may be much higher than the total price paid by the applicant company for the aircraft in 1999 and 2000 (see paragraph 259, referring to paragraphs 9 and 101). In order to avoid the risk of our award being too high, I would have preferred to reserve the question of just satisfaction and to invite the parties to submit calculations on the basis of a set of criteria specified by the Court in its judgment.

[1] . Rectified on 3 February 2014: the text “ and, starting from 8 October 2013, also by Mr Grégory Thuan dit Dieudonn é, a lawyer based in Strasbourg .” was added.