CONCURRING OPINION OF SIR NICOLAS BRATZA

1. I am in full agreement with the other members of the Chamber that the applicant ' s rights under Article 1 of Protocol No. 1 to the Convention were violated in the present case. However, in arriving at this conclusion, I would have preferred a reasoning different from that in the judgment.

2. As noted in the judgment (§ 58), it is not a dispute between the parties that the applicant company ' s licences to operate the duty-free shop and bar constitutes a possession for the purposes of Article 1 of the Protocol. As is further noted in the judgment (§ 60), the Order of the Customs Department of 18 May 2002 had the immediate and intended effect of preventing the applicant from continuing to operate its duty-free business at the Leu ş eni Customs Office and of terminating the applicant ' s existing licences to carry on business at that location. Even if, as the Supreme Court of Moldova held, the Order did not give rise to an interference with the “activity” of the applicant company for the purposes of section 40 of the Law of Foreign Investments, or with the rights guaranteed by the Constitution of Moldova, on the basis that the applicant retained the right to carry on other business activities, it clearly amounted to an interference with the applicant ' s right to the peaceful enjoyment of its possession for the purposes of Article 1 of the Protocol (see, for example, Tre Traktörer Aktiebolag v. Sweden , judgment of 7 July 1989, Series A no. 159, § 55).

3. Although the applicant company could not carry on a duty-free business, it maintained some economic rights represented by its premises at the border and its property assets, including unsold stock. In these circumstances, as in the Tre Traktörer case, the withdrawal or suspension of the licences is to be seen not as a deprivation of possessions for the purposes of the second sentence of Article 1 of Protocol No. 1 but as a measure of control of use of property which falls to be examined under the second paragraph of that Article.

4. In order to comply with the requirements of the second paragraph, it must be shown that the measure constituting the control of use was lawful, that it was “in accordance with the general interest”, and that there existed a reasonable relationship of proportionality between the means employed and the aim sought to be realised. The Chamber ' s conclusion in the judgment that the applicant ' s rights under Article 1 were violated is based on the fact that the Order was not “lawful” in that, as found by the Court of Appeal of Moldova, it did not comply with the requirements of section 43 of the Law on Foreign Investments, which entitled the applicant company to enjoy customs incentives for ten years after the coming into effect of the amendment to the Customs Code restricting duty-free sales outlets to international airports and on board aircraft flying international routes. I would have preferred that the question of the lawfulness of the measure had been left open and that the Court ' s focus had been rather on its proportionality to any legitimate aim served by it.

5. According to the Court ' s constant case-law, the second paragraph of Article 1 is to be construed in the light of the general principles enunciated in the first sentence, and requires that a fair balance is struck between the demands of the general interests of the community which is served by the measure in question and the fundamental rights of the individual which are affected by the measure. In determining whether a fair balance exists, the Court recognises that the State enjoys a wide margin of appreciation with regard both to choosing the means of enforcement and to ascertaining whether the consequences of enforcement are justified in the general interest for the purpose of achieving the object of the law in question (see, for example, AGOSI v. the United Kingdom , judgment of 24 October 1986, Series A no. 108, § 52). The requisite balance will not be found if the individual concerned has had to bear “an individual and excessive burden”. The existence or lack of compensation terms under the relevant legislation may be a material factor in the assessment whether the contested measure respects the requisite fair balance and, notably, whether it imposes a disproportionate burden on an applicant (see, for example, Holy Monasteries (The) v. Greece judgment of 9 December 1994, Series A no. 301-A, § 71 and, in the specific context of the second paragraph of Article 1, Immobiliare Saffi v. Italy [GC], no. 22774/93, § 57, ECHR 1999­V).

6. The Government argued that, by subjecting the sale of duty-free goods to a system of licences, the Moldovan legislation took measures to implement the national policy in this field. This was in line with Moldovan economic policy generally, the objective of which was to control the use of merchandise in the general interest. It is further argued that the amendment to the Customs Code in April 2002 was designed in the general interest to contribute to the reduction and elimination of violations of the law of a financial and fiscal character.

7. It is not disputed by the applicant company that the control of use of duty-free goods through a licensing system served the general interest of the community and this I can readily accept. I can also accept that legislative provisions which are designed to prevent fraud or fiscal offences on the part of those carrying on duty-free businesses serve a legitimate aim in the general interest. The central question, however, remains whether the

application of those measures in the particular case of the applicant company struck a fair balance between the competing public and private interests.

8. In determining this question several features of the case seem to me to be of importance:

( i ) There was and is no suggestion that the applicant company had in any way contravened the law or that it was suspected of fiscal or other offences in carrying on its duty-free business. As pointed out in the judgment of the Court of Appeal, section 40 of the Law on Foreign Investments permitted the suspension of the activities of an enterprise with foreign investors only in accordance with a decision of the Government of Moldova or a competent court but the Order in question contained no reference to any such breaches on the part of the applicant and was not based on any such decision or judgment. In this respect, the position of the present applicant is in sharp contrast to that of the applicant in the Tre Traktörer case, where the revocation of the applicant ' s alcohol licence was based on discrepancies in the book-keeping of the licence-holder concerning the sale of alcoholic beverages, which were found to be very significant in relation to the total turnover of the company and on which the Court placed considerable emphasis in concluding that a fair balance had not been upset.

(ii) The financial repercussions of the termination of the applicant ' s business were very serious. The applicant company had obtained the licences to operate the duty-free shop and bar in 1998; it had bought the necessary equipment, built the shop premises and had been carrying on the business for some 2-3 years before the Order was issued in May 2002. The scale of the loss suffered by the applicant company as a result of the immediate closure of the business may be judged from the Government ' s own estimate of the damage sustained by the applicant, which totalled in excess of USD 614,000, including loss of profits over a ten year period of some USD 256,000.

(iii ) In further contrast to the situation in the Tre Traktörer case, there is nothing to suggest that the measure in question could have been foreseen or that provision could have been made by the applicant company to mitigate its loss. As noted in the Court ' s judgment, the licences contained no provisions limiting their duration and there was nothing in the relevant legislation at the time of issue of the licences to suggest that they could be terminated, except on grounds provided for in section 56 of the Customs Code.

(iv) Despite the serious impact which the new legislation would be likely to have on existing duty-free businesses, no exception was made in the legislation for such businesses and no transitional period was afforded during which duty-free business could be wound down and alternative sources of revenue found. Nor was any compensation whatever provided to mitigate the effect of the substantial losses which would inevitably be suffered by companies or individuals affected by the Order.

9. These factors, taken together, lead me to conclude that, notwithstanding the margin of appreciation afforded to the State, a fair balance was not preserved in the present case and that the applicant company was required to bear an individual and excessive burden, in violation of Article 1 of the Protocol No. 1.

10. As to the question of just satisfaction under Article 41 of the Convention, while it is true that the calculation of the applicant ' s pecuniary loss might in principle vary depending on whether the violation of Article 1 was based on the unlawfulness of the interference or on its lack of proportionality, I note that the Government have not suggested that any different approach should be taken in the present case. Accordingly, I see no reason to adopt any different approach and have voted with the other members of the Chamber in awarding the sum set out in paragraph 80 of the judgment.