JOINT PARTLY DISSENTING OPINION OF JUDGES COSTA AND KOVLER

(Translation)

1. The majority of the Chamber found that there had been a violation of Aon Conseil et Courtages ' rights under Article 1 Protocol No. 1. We do not share that view.

2. In arriving at that conclusion, our colleagues found that the authorities had not been legally entitled to impose on that company – the first applicant – the four-year limitation period laid down by Article L 190 of the Code of Tax Procedure for making its claim for the refund of the amount of value added tax (VAT) it had paid in error.

3. However, having paid that tax on its 1978 transactions pursuant to Article 256 of the General Tax Code as worded at the time Aon Conseil et Courtages waited until 20 December 1993 before making a request for a refund for the first time, that is more than fifteen years later and well after the expiration of the four-year limitation period. Its position is very different from that of the second applicant company, which also paid VAT on its transactions relating to the same period but claimed a refund on 2 October 1978, thereby very quickly interrupting the limitation period.

4. Admittedly, it was only in 1992 that, in a judgment on an appeal by S.A. Dangeville , a company in the same situation ( see S.A. Dangeville v . France , n o. 36677/97, ECH R 2002 ‑ III ) , the Administrative Court of Appeal held that Article 256 of the General Tax Code could not apply as it was incompatible with the provisions of the Sixth Community Directive on VAT, which France had implemented belatedly.

5. However, the clearly worded Article L. 190 of the Code of Tax Procedure, which is cited at paragraph 27 of the present judgment , allowed the first applicant company to avoid being caught by the statute of limitations in respect of its claim for recovery of sums paid but not due only if it made its claim – as the second applicant company and S.A. Dangeville did – at the most four years before the date of the court decision revealing the incompatibility of the legal rule applied in its case ( Article 256) with a higher-ranking rule ( the Sixth Directive ) . This it failed to do .

6. While it would of course be possible to object that the limitation period was too short and therefore in breach of the Convention, we do not consider that to have been the case.

7. Firstly, in its Roquette Frères S.A. judgment of 28 November 2000, which is cit ed in paragraph 28 of the judgment in the instant case , the Cour t of Justice of the Europe an Commun i t ie s (CJEC) held that Community law did not preclude the validity of Article L 190 of the French Code of Tax Procedure . Even though the CJEC was not required to apply Article 1 of Protocol No. 1 (indeed, that provision was not referred to in the request for a preliminary ruling ), we consider it unfortunate for there to be any hint of a divergence of opinion between Europe ' s two highest courts, which are careful to avoid such differences ( see , for ex a mple, the Court ' s judgments in the cases of Matthews v . the United Kingdom [GC], n o. 24833/94, ECH R 1999 ‑ I and Société Colas Est and Others v . France , n o. 37971/97, ECH R 2002 ‑ III , and , respective ly , the CJEC ' s judgments in the cases of Kingdom of Spain v. United Kingdom , 12 September 2006, case C 145/04, and Roquette Frères S . A . – a separate case to that mentioned above – 22 October 2002, case C-94/00; see also the European Court of Human Rights ' judgment in the case of Stec and Others v . the United Kingdom [GC], n o. 65731/01, § 58, ECH R 2006 ‑ ... , which expressly refers to the CJEC ' s judgment in Regina Virginia Hepple v Adjudication Officer and Adjudication Officer v Anna Stec , case C 196-98 ) .

8. Secondly, the Court has always accepted that limitation periods , which serve to ensure legal certainty and fall within the States ' margin of appreciation, are compatible with the Convention provided they are reasonable in length. Thus, in Stubbings ( Stubbings and Others v . the United Kingdom , 22 October 1996, Reports of Judgments and Decisions 1996 ‑ IV) the Cour t found that, notwithstanding the serious nature of the case, a six-year limitation period did not violate the right of access to a court even though it prevented minors who had been victims of sexual abuse from claiming compensation in the civil courts.

9. Lastly , as regards the right of property, the Court has held that the hope of recognition of the survival of an old property right which it has long been impossible to exercise effectively cannot even constitute a “possession” within the meaning of Article 1 of Protocol No. 1 ( Malhous v . the Czech Republic [GC], n o. 33071/96, ECH R 2000-X II). That decision is transposable, mutatis mutandis , to the claim of the first applicant company , as it paid tax in 1978 and did not seek a refund until the end of 1993.

10. For these reasons, we consider that Article 1 of Protocol No. 1 was not applicable ratione materiae in the case of Aon Conseil et Courtages o r , in the alternative , that there has been no violation of that provision in its case .