Droit des affaires - Insolvabilité des États et dettes souveraines -1 - 168

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government referred to this in order to justify the legislation. 256 Certainly, if it appears that the reduction applied to the sovereign debt is only minimal given the real market value of the debt, 257 the lack of any compensation will be viewed with less distaste. 258 Further, account should probably also be taken of the weight of the public interest at stake. Far from attempting to further its own, national interest, the United Kingdom is in fact vying for the poorest countries on the planet. There is strong reason to believe that this is a formidable public interest, which deserves some additional deference. The Court has in the past indicated that it will take into account the intensity of the public interest when determining whether the compensation granted to the owner is sufﬁcient to guarantee a ‘fair balance’. In Scordino, the Court noted in that respect that “[l]egitimate objectives in the “public interest”, such as those pursued in measures of economic reform or measures designed to achieve greater social justice, may call for less than reimbursement of the full market value”. 259 The Court seems to use a ‘sliding scale’, which balances the scope of degree of importance of the public interest, against the property right and the compensation offered. 260
256. Explanatory Notes, Debt Relief (Developing Countries) Bill, 2010, at p. 9, para 42. The Treasury explained that “the current market value of those debts is likely to be much lower than their face value... HIPC debts currently trade at or slightly below the levels to which they would be reduced under the provisions of this Bill”. 257. The current market value of the debt at the time the Debt Relief Act is applied seems to be a better benchmark to appreciate whether the fair balance has been breached than the amount actually paid by the creditor to acquire the debt on the secondary market. 258. When deciding whether the compensation foreseen by the State has maintained a ’fair balance’ between the public interest and the property interest, the European Court seems to expect that the compensation will be related to the market value of the assets concerned – see e.g. Pincova and Pinc v. Czech Republic, (ECtHR, 5 Nov. 2002), at § 53; Scordino v. Italy (I), (ECtHr - GC, 29 March 2006), at §§ 99-103 and Lallement v France, (ECtHR, 11 April 2002) at § 23. See also Holy Monasteries v Greece, Series A no 301-A, (1995) 20 EHRR 1, at § 71 where the Court made a reference to the “full market value” of the property. In applying Article 50 of the Convention, the Court also refers to the market value of the asset in case of violation of Article 1 Protocol 1: see e.g. Hentrich v. France, Series A 296-A (1994) 18 EHRR 440 at § 71 – the Court noted that “the calculation of pecuniary damage must be based on the current market value of the land”. 259. Scordino v. Italy (I), (ECtHr - GC, 29 March 2006), at §§ 97 ff. See also Urbarska Obec Trencianske Biskupice v Slovakia, (2009) 48 EHRR 1139 (ECtHR 27 Nov. 2007) at § 126. 260. This has been particularly apparent in cases where the Court was called upon to rule in matters relating to ’post-transition’ economies or measures adopted in the framework of sweeping nationalization programs – see The former King of Greece et al. v. Greece (ECtHR-GC, 28 November 2002) at § 87 (the Court held that less than full compensation may be necessary where property is taken for the purposes of “such fundamental changes of a country’s constitutional system as the transition from monarchy to republic”); Kopecky v. Slovakia ECHR 2004-IX (ECtHR-GC) at § 35 (The Court recognizes that the State has a wide margin of appreciation when enacting laws in the context of a change of political and economic regime ); Broniowski v Poland (2005) 40 EHRR 495 (ECtHR 22 June 2004) at § 182 (likewise in the context of the country’s transition towards a democratic regime); Wolf-Ulrich von Maltzan et al. v. Germany, (2005) 42 EHRR 93 (Grand Chamber, 2nd March 2005), § 77. Compare with Scordino v. Italy (I), (ECtHr - GC, 29 March 2006), at § 102 (in that case, the Court held that the expropriation “was neither carried out as part of a process of economic, social or political reform nor linked to any other speciﬁc circumstances”. The Court added
Droit des affaires - Insolvabilité des États et dettes souveraines -1

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