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GRAND CHAMBER
CASE OF BOSPHORUS HAVA YOLLARI TURİZM VE TİCARET ANONİM ŞİRKETİ v.
IRELAND
(Application no. 45036/98)
JUDGMENT
STRASBOURG
30 June 2005
In the case of Bosphorus Hava Yolları Turizm ve Ticaret Anonim Şirketi v. Ireland,
The European Court of Human Rights, sitting as a Grand Chamber composed of:
Mr C.L. ROZAKIS, President,
Mr J.-P. COSTA,
Mr G. RESS,
Sir Nicolas BRATZA,
Mr I. CABRAL BARRETO,
Mrs F. TULKENS,
Mrs V. STRÁŽNICKÁ,
Mr K. JUNGWIERT,
Mr V. BUTKEVYCH,
Mrs N. VAJIĆ,
Mr J. HEDIGAN,
Mr M. PELLONPÄÄ,
Mr K. TRAJA,
Mrs S. BOTOUCHAROVA,
Mr V. ZAGREBELSKY,
Mr L. GARLICKI,
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Mr L. GARLICKI,
Mrs A. GYULUMYAN, judges,
and Mr P.J. MAHONEY, Registrar,
Having deliberated in private on 29 September 2004 and 11 May 2005,
Delivers the following judgment, which was adopted on the last-mentioned date:
PROCEDURE
1. The case originated in an application (no. 45036/98) against Ireland lodged with the European
Commission of Human Rights (“the Commission”) under former Article 25 of the Convention for the
Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a company incorporated in
Turkey, Bosphorus Hava Yolları Turizm (“the applicant company”), on 25 March 1997.
2. The applicant company was represented by Mr J. Doyle, a lawyer practising in Dublin, instructed by
Mr M.I. Özbay, the company's managing director and majority shareholder. The Irish Government (“the
Government”) were represented by two successive Agents, Ms P. O'Brien and Mr J. Kingston, and by a coAgent,
Ms D. McQuade, all of the Department of Foreign Affairs.
3. The applicant company alleged that the impounding of its leased aircraft by the respondent State had
breached its rights under Article 1 of Protocol No. 1.
4. The application was transmitted to the Court on 1 November 1998, when Protocol No. 11 to the
Convention came into force (Article 5 § 2 of Protocol No. 11).
5. Following the communication of the case to the respondent Government, the Turkish Government
confirmed that it did not intend to make submissions in the case (Rule 44 of the Rules of Court).
6. On 13 September 2001, following a hearing on the admissibility and merits, the application was
declared admissible by a Chamber composed of Mr G. Ress, President, Mr I. Cabral Barreto, Mr V.
Butkevych, Mrs N. Vajić, Mr J. Hedigan, Mr M. Pellonpää, Mrs S. Botoucharova, judges, and Mr V.
Berger, Section Registrar.
7. On 30 January 2004 that Chamber relinquished jurisdiction in favour of the Grand Chamber, none of
the parties having objected (Article 30 of the Convention and Rule 72).
8. The composition of the Grand Chamber was determined according to the provisions of Article 27 §§ 2
and 3 of the Convention and Rule 24.
9. The applicant company and the Government each filed observations on the merits, to which each
replied at the oral hearing (Rule 44 § 5). Written comments were also received from the Italian and United
Kingdom Governments, and from the European Commission and the Institut de formation en droits de
l'homme du barreau de Paris, which were given leave by the President to intervene (Article 36 § 2 of the
Convention and Rule 44 § 2). The European Commission also obtained leave to participate in the oral
hearing.
10. The hearing took place in public in the Human Rights Building, Strasbourg, on 29 September 2004
(Rule 59 § 3).
There appeared before the Court:
(a) for the Government
Mr J. KINGSTON, Agent,
Ms D. MCQUADE, Co-Agent,
Mr G. HOGAN, Senior Counsel,
Mr R. O'HANLON, Senior Counsel, Counsel,
Mr P. MOONEY, Adviser;
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Mr P. MOONEY, Adviser;
(b) for the applicant company
Mr J. O'REILLY, Senior Counsel,
Mr T. EICKE, Barrister-at-Law, Counsel,
Mr J. DOYLE, Solicitor.
Mr M.I. Özbay, managing director of the applicant company, also attended.
(c) for the European Commission
Mr G. MARENCO,
Ms S. FRIES,
Mr C. LADENBURGER, Agents.
The Court heard addresses by Mr O'Reilly, Mr Hogan and Mr Marenco.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
A. The lease agreement between JAT and the applicant company
11. The applicant company is an airline charter company incorporated in Turkey in March 1992.
12. By an agreement dated 17 April 1992, the applicant company leased two Boeing 737-300 aircraft
from Yugoslav Airlines (JAT), the national airline of the former Yugoslavia. These were, at all material
times, the only two aircraft operated by the applicant company. The lease agreement was a “dry lease
without crew” for a period of forty-eight months from the dates of delivery of the two aircraft (22 April and
6 May 1992). According to the terms of the lease, the crew were to be the applicant company's employees
and the applicant company was to control the destination of the aircraft. While ownership of the aircraft
remained with JAT, the applicant company could enter the aircraft on the Turkish Civil Aviation Register
provided it noted JAT's ownership.
13. The applicant company paid a lump sum of 1,000,000 United States dollars (USD) per aircraft on
delivery. The monthly rental was 150,000 USD per aircraft. On 11 and 29 May 1992 the two aircraft were
registered in Turkey as provided for in the lease. On 14 May 1992 the applicant company obtained its airline
licence.
B. Prior to the aircraft's arrival in Ireland
14. From 1991 onwards the United Nations adopted, and the European Community implemented, a
series of sanctions against the Federal Republic of Yugoslavia (Serbia and Montenegro) – “the FRY” –
designed to address the armed conflict and human rights violations taking place there.
15. In January 1993 the applicant company began discussions with TEAM Aer Lingus (“TEAM”) with a
view to having maintenance work (“C-Check”) done on one of its leased aircraft. TEAM was a limited
liability company whose principal business was aircraft maintenance. It was a subsidiary of two Irish airline
companies wholly owned by the Irish State. Memoranda dated 8 and 18 January 1993 showed that TEAM
considered, on the basis of information obtained, that the applicant company was not in breach of the
sanctions regime, noting that it was doing business with many companies, including Boeing, Sabena and
SNECMA (a French aero-engine company). By a letter of 2 March 1993, TEAM requested the opinion of
the Department of Transport, Energy and Communications (“the Department of Transport”) and included
copies of its memoranda of January 1993. On 3 March 1993 the Department of Transport forwarded the
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copies of its memoranda of January 1993. On 3 March 1993 the Department of Transport forwarded the
request to the Department of Foreign Affairs.
16. On 17 April 1993 the United Nations Security Council adopted Resolution 820 (1993), which
provided that States should impound, inter alia, all aircraft in their territories “in which a majority or
controlling interest is held by a person or undertaking in or operating from the [FRY]”. That resolution was
implemented by Regulation (EEC) no. 990/93, which came into force on 28 April 1993 (see paragraph 65
below).
17. On 5 May 1993 the Department of Foreign Affairs decided to refer the matter to the United Nations
Sanctions Committee.
18. By a letter of 6 May 1993, the Turkish Foreign Ministry indicated to the Turkish Ministry of
Transport that it considered that the leased aircraft were not in breach of the sanctions regime and requested
flight clearance pending the Sanctions Committee's decision. On 12 May 1993 Turkey sought the opinion of
the Sanctions Committee.
C. The impounding of the aircraft
19. On 17 May 1993 one of the applicant company's leased aircraft arrived in Dublin. A contract with
TEAM was signed for the completion of C-Check.
20. On 18 May 1993 the Irish Permanent Mission to the United Nations indicated by facsimile to the
Department of Transport that informal advice from the Secretary to the Sanctions Committee was to the
effect that there was no problem with TEAM carrying out the work, but that an “informal opinion” from the
“legal people in the Secretariat” had been requested. On 19 May 1993 the Department of Transport
explained this to TEAM by telephone.
21. On 21 May 1993 the Irish Permanent Mission confirmed to the Department of Foreign Affairs that
the “informal legal advice” obtained from the “United Nations legal office” was to the effect that TEAM
should seek the “guidance and approval” of the Sanctions Committee before signing any contract with the
applicant company. It was recommended that TEAM submit an application to the Committee with relevant
transaction details; if the applicant company was to pay for the maintenance, it was unlikely that the
Committee would have a problem with the transaction. On 24 May 1993 the Department of Transport
received a copy of that facsimile and sent a copy to TEAM, who were also informed by telephone. By a
letter dated 26 May 1993, the Irish Permanent Mission provided the Sanctions Committee with the required
details and requested the latter's “guidance and approval”.
22. On 21 May 1993 the Sanctions Committee disagreed with the Turkish government's view that the
aircraft could continue to operate, referring to Resolution 820 (1993) of the United Nations Security
Council. The Turkish Permanent Mission to the United Nations was informed of that opinion by a letter
dated 28 May 1993.
23. At noon on 28 May 1993 the applicant company was informed by TEAM that C-Check had been
completed and that, on payment of USD 250,000, the aircraft would be released. Later that day payment
was received and the aircraft was released. While awaiting air traffic control clearance to take off, the
aircraft was stopped. In his report, the duty manager of Dublin Airport noted that TEAM had informed him
that it had been advised by the Department of Transport that it would be “in breach of sanctions” for the
aircraft to leave. He also stated that the aircraft had been scheduled to depart during that shift and that the
airport police had been advised. TEAM informed the applicant company accordingly. The Department of
Transport later confirmed by a letter (of 16 June 1993) its instructions of 28 May 1993:
“... [TEAM] were advised by this Department that, in the circumstances, TEAM should not release the [aircraft] ...
Furthermore, it was pointed out that if TEAM were to release the aircraft TEAM itself might be in serious breach of the UN
resolutions (as implemented by Council Regulation (EEC) no. 990/93) ... and the matter was under investigation. At the same
time directions were given to Air Traffic Control, whose clearance is necessary for departure of aircraft, not to clear this aircraft
for take-off.”
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for take-off.”
24. By letters dated 29 May 1993 to the applicant company, TEAM noted that it was waiting for the
opinion of the Sanctions Committee and that it had been advised by the authorities that release of the
aircraft before receipt of that opinion would be in violation of the United Nations sanctions regime.
D. Prior to judicial review proceedings
25. By a memorandum dated 29 May 1993, the Turkish embassy in Dublin requested the release of the
detained aircraft to Turkey, given the latter's commitment to the sanctions regime
26. By a letter dated 2 June 1993, the Irish Permanent Mission informed the Sanctions Committee that
the maintenance work had in fact already been carried out, that the government regretted the failure to abide
by the procedure it had initiated and that the matter had been taken up with TEAM. The aircraft was being
detained pending the Committee's decision.
27. On 3 June 1993 the Irish government learned of the Sanctions Committee's reply to the Turkish
government and that the chairman of the Committee had indicated that it would be likely to favour
impounding. The Committee would not meet until 8 June 1993.
28. On 4 June 1993 the European Communities (Prohibition of Trade with the Federal Republic of
Yugoslavia (Serbia and Montenegro)) Regulations 1993 (Statutory Instrument no. 144 of 1993) were
adopted. By a letter dated 8 June 1993, the Minister for Transport (Energy and Communications) informed
the Dublin Airport managers that he had authorised the impounding, until further notice, of the aircraft
pursuant to that statutory instrument.
29. Shortly afterwards the applicant company's second aircraft was grounded in Istanbul, although the
parties disagreed as to precisely why.
30. By a letter of 14 June 1993, the Sanctions Committee informed the Irish Permanent Mission of the
findings of its meeting of 8 June 1993:
“... the provision of any services to an aircraft owned by an undertaking in the [FRY], except those specifically authorised in
advance by the Committee ..., would not be in conformity with the requirements of the relevant Security Council resolutions. The
members of the Committee also recalled the provisions of paragraph 24 of [Resolution 820 (1993) of the United Nations Security
Council] regarding such aircraft, under which the aircraft in question should have already been impounded by the Irish
authorities. The Committee, therefore, would be extremely grateful for being apprised of any action on behalf of Your
Excellency's Government to that effect.”
By a letter dated 18 June 1993, the Irish Permanent Mission informed the Sanctions Committee that the
aircraft had been detained on 28 May 1993 and formally impounded on 8 June 1993.
31. In a letter of 16 June 1993 to the Department of Transport, the applicant company challenged the
impoundment, arguing that the purpose of Regulation (EEC) no. 990/93 was not to deal simply with legal
ownership, but rather with operational control. On 24 June 1993 the Department replied:
“The Minister is advised that the intention and effect of the UN resolution as implemented through [Regulation (EEC) no.
990/93] is to impose sanctions by impounding the types of commercial asset mentioned in Article 8, including aircraft, in any
case where a person or undertaking in or operating from the [FRY] has any ownership interest of the kind mentioned. As this
view of the scope and effect of the original resolution has been confirmed by the [Sanctions Committee], the Minister does not
feel entitled to apply [Regulation (EEC) no. 990/93] in a manner which would depart from that approach. ... the aircraft must
remain impounded. ... the Minister appreciates the difficulty that [the applicant company] finds itself in and would be anxious to
find any solution that was available to him under [Regulation (EEC) no. 990/93] which would permit the release of the aircraft.”
32. By a letter dated 5 July 1993, the Turkish embassy in Dublin repeated its request for the release of
the aircraft, stating that the Turkish government would ensure impoundment in accordance with the
sanctions. The Irish government indicated to the Sanctions Committee, by a letter of 6 July 1993, that it
would be favourably disposed to grant that request. On 4 August 1993 the Sanctions Committee ruled that
the aircraft had to remain in Ireland, since the relevant resolutions required the Irish State to withhold all
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the aircraft had to remain in Ireland, since the relevant resolutions required the Irish State to withhold all
services from the aircraft, including services that would enable it to fly.
E. The first judicial review proceedings: the High Court
33. In November 1993 the applicant company applied for leave to seek judicial review of the Minister's
decision to impound the aircraft. Amended grounds were later lodged taking issue with TEAM's role in the
impoundment. On 15 April 1994 the High Court struck out TEAM as a respondent in the proceedings, the
applicant company's dispute with TEAM being a private-law matter.
34. On 15 June 1994 the applicant company's managing director explained in evidence that rental
payments due to JAT had been set off against the deposits initially paid to JAT and that future rental
payments were to be paid into a blocked bank account supervised by the Turkish Central Bank.
35. On 21 June 1994 Mr Justice Murphy delivered the judgment of the High Court. The issue before him
could, he believed, be simply defined as the question of whether the Minister for Transport was bound by
Article 8 of Regulation (EEC) no. 990/93 to impound the applicant company's aircraft. He considered the
Department of Transport's letter of 24 June 1993 to the applicant company to be the most helpful
explanation of the Minister's reasoning. He found that:
“... it is common case that the transaction between JAT and [the applicant company] was entirely bona fide. There is no
question of JAT having any interest direct or indirect in [the applicant company] or in the management, supervision or direction
of the business of that company. ...
It is, however, common case that [resolutions of the United Nations Security Council] do not form part of Irish domestic law
and, accordingly, would not of themselves justify the Minister in impounding the aircraft. The real significance of the
[resolutions of the United Nations Security Council], in so far as they relate to the present proceedings, is that [Resolution 820
(1993) of the United Nations Security Council] ... provided the genesis for Article 8 of [Regulation (EEC) no. 990/93]. ...”
36. In interpreting Regulation (EEC) no. 990/93, Mr Justice Murphy had regard to its purpose. He found
the aircraft not to be one to which Article 8 applied, as it was not an aircraft in which a majority or
controlling interest was held by a person or undertaking in or operating from the former FRY, and that the
decision of the Minister to impound was therefore ultra vires. However, the aircraft was, at that stage, the
subject of an injunction obtained (in March 1994) by a creditor of JAT (SNECMA) preventing it from
leaving the country. That injunction was later discharged on 11 April 1995.
F. The second judicial review proceedings: the High Court
37. Having indicated to the applicant company that the Minister for Transport was investigating a further
impoundment based on Article 1.1(e) of Regulation (EEC) no. 990/93, the Department of Transport
informed the applicant company by a letter of 5 August 1994 of the following:
“The Minister has now considered the continuing position of the aircraft in the light of the recent ruling of the High Court and
the provisions of the Council regulations referred to.
Arising out of the Minister's consideration, I am now directed to inform you that the Minister has ... directed that the aircraft ...
be detained pursuant to Article 9 of [Regulation (EEC) no. 990/93] as an aircraft which is suspected of having violated the
provisions of that regulation and particularly Article 1.1(e) and [Regulation (EEC) no.] 1432/92. The aircraft will remain
detained pending completion of the Minister's investigation of the suspected violation as required under Article 9 and Article 10
of Regulation [(EEC) no.] 990/93.”
Although not noted in that letter, the Minister's concern related to the applicant company's setting off of
JAT's financial obligations (certain insurance, maintenance and other liabilities) under the lease against the
rental monies already paid by it into the blocked bank account.
38. On 23 September 1994 the United Nations Security Council adopted Resolution 943 (1994).
Although it temporarily suspended the sanctions as peace negotiations had begun, it did not apply to aircraft
already impounded. It was implemented by Regulation (EC) no. 2472/94 on 10 October 1994.
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already impounded. It was implemented by Regulation (EC) no. 2472/94 on 10 October 1994.
39. In March 1995 the applicant company was given leave to apply for judicial review of the Minister's
decision to re-impound the aircraft. By a judgment of 22 January 1996, the High Court quashed the
Minister's decision to redetain the aircraft. It noted that almost all of the monies which had been paid into
the blocked account by the applicant company had by then been used up (with the consent of the holding
bank in Turkey) in order to discharge JAT's liabilities under the lease. The crucial question before the High
Court was the Minister's delay in raising Article 9 of Regulation (EEC) no. 990/93 given that the applicant
company was an “innocent” party suffering heavy daily losses. The High Court found that the Minister had
failed in his duty to investigate and decide such matters within a reasonable period of time, to conduct the
investigations in accordance with fair procedures and to have proper regard for the rights of the applicant
company.
40. On 7 February 1996 the Irish government appealed to the Supreme Court and applied for a stay on
the High Court's order. On 9 February 1996 the Supreme Court refused the Minister's application for a stay.
The overriding consideration in deciding to grant the stay or not was to find a balance which did not deny
justice to either party. Noting the significant delay of the Minister in raising Article 1.1(e) and the
potentially minor damage to the State (monies owed for the maintenance and parking in Dublin Airport)
compared to the applicant company's huge losses, the justice of the case was overwhelmingly in the latter's
favour.
41. The aircraft was therefore free to leave. By letters dated 12 and 14 March 1996, the applicant
company, JAT and TEAM were informed that the Minister considered that he no longer had any legal
responsibility for the aircraft.
G. The first judicial review proceedings: the European Court of Justice (ECJ)
42. On 8 August 1994 the Minister for Transport lodged an appeal in the Supreme Court against the
High Court judgment of 21 June 1994. He took issue with the High Court's interpretation of Regulation
(EEC) no. 990/93 and requested a preliminary reference to the ECJ (Article 177, now Article 234, of the
Treaty establishing the European Community – “the EC Treaty”).
43. By an order dated 12 February 1995, the Supreme Court referred the following question to the ECJ
and adjourned the proceedings before it:
“Is Article 8 of [Regulation (EEC) no. 990/93] to be construed as applying to an aircraft which is owned by an undertaking the
majority or controlling interest in which is held by [the FRY] where such aircraft has been leased by the owner for a term of four
years from 22 April 1992 to an undertaking the majority or controlling interest in which is not held by a person or undertaking in
or operating from the said [FRY]?”
44. The parties made submissions to the ECJ. The applicant company noted that it was ironic that,
following Resolution 943 (1994) of the United Nations Security Council, JAT aircraft could fly whereas its
own remained grounded.
45. On 30 April 1996 Advocate General Jacobs delivered his opinion. Given the majority interest of JAT
in the aircraft, Article 8 of Regulation (EEC) no. 990/93 applied to it. The Advocate General disagreed with
the Irish High Court, considering that neither the aims nor the texts of the relevant resolutions of the United
Nations Security Council provided any reason to depart from what he considered to be the clear wording of
Article 8 of Regulation (EEC) no. 990/93.
46. As to the question of the respect shown in that regulation for fundamental rights and proportionality,
the Advocate General pointed out:
“It is well established that respect for fundamental rights forms part of the general principles of Community law, and that in
ensuring respect for such rights, the [ECJ] takes account of the constitutional traditions of the Member States and of international
agreements, notably [the Convention], which has a special significance in that respect.
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Article F(2) of the Treaty on European Union ... gives Treaty expression to the [ECJ's] case-law. ... In relation to the EC
Treaty, it confirms and consolidates the [ECJ's] case-law underlining the paramount importance of respect for fundamental
rights.
Respect for fundamental rights is thus a condition of the lawfulness of Community acts – in this case, the Regulation.
Fundamental rights must also, of course, be respected by Member States when they implement Community measures. All
Member States are in any event parties to the [Convention], even though it does not have the status of domestic law in all of
them. Although the Community itself is not a party to the Convention, and cannot become a party without amendment both of the
Convention and of the Treaty, and although the Convention may not be formally binding upon the Community, nevertheless for
practical purposes the Convention can be regarded as part of Community law and can be invoked as such both in the [ECJ] and
in national courts where Community law is in issue. That is so particularly where, as in this case, it is the implementation of
Community law by Member States which is in issue. Community law cannot release Member States from their obligations under
the Convention.”
47. The Advocate General noted that the applicant company had relied on the right to peaceful
enjoyment of property, protected by the Convention, and the right to pursue a commercial activity,
recognised as a fundamental right by the ECJ. Having considered Sporrong and Lönnroth v. Sweden
(judgment of 23 September 1982, Series A no. 52), he defined the essential question as being whether the
interference with the applicant company's possession of the aircraft was a proportionate measure in the light
of the aims of general interest Regulation (EEC) no. 990/93 sought to achieve. He had regard to the
application of this test in AGOSI v. the United Kingdom (judgment of 24 October 1986, Series A no. 108)
and Air Canada v. the United Kingdom (judgment of 5 May 1995, Series A no. 316-A) and to a “similar
approach” adopted by the ECJ in cases concerning the right to property or the right to pursue a commercial
activity (including Hauer v. Land Rheinland-Pfalz, Case 44/79 [1979] European Court Reports (ECR) 3727,
§§ 17-30).
48. While there had been a severe interference with the applicant company's interest in the lease, it was
difficult to identify a stronger type of public interest than that of stopping a devastating civil war. While
some property loss was inevitable for any sanctions to be effective, if it were demonstrated that the
interference in question was wholly unreasonable in the light of the aims sought to be achieved, then the
ECJ would intervene. However, the Advocate General felt that neither the initial decision to impound nor
the continued retention of the aircraft could be regarded as unreasonable.
49. Whether or not the financial impact of the sanctions were as outlined by the applicant company, a
general measure of the kind in question could not be set aside simply because of the financial consequences
the measure might have in a particular case. Given the strength of the public interest involved, the
proportionality principle would not be infringed by any such losses.
50. The Advocate General concluded that the contested decision did not
“... strike an unfair balance between the demands of the general interest and the requirements of the protection of the
individual's fundamental rights. That conclusion seems consistent with the case-law of [this Court] in general. Nor has [the
applicant company] suggested that there is any case-law under [the Convention] supporting its own conclusion.
The position seems to be no different if one refers to the fundamental rights as they result from 'the constitutional traditions
common to the Member States' referred to in the case-law of [the ECJ] and in Article F(2) of the Treaty on European Union. In
the [above-cited Hauer case, the ECJ] pointed out ..., referring specifically to the German Grundgesetz, the Irish Constitution and
the Italian Constitution, that the constitutional rules and practices of the Member States permit the legislature to control the use
of private property in accordance with the general interest. Again it has not been suggested that there is any case-law supporting
the view that the contested decision infringed fundamental rights. The decision of the Irish High Court was based, as we have
seen, on different grounds.”
51. By a letter of 19 July 1996, TEAM informed JAT that the aircraft was free to leave provided that
debts owed to TEAM were discharged.
52. On 30 July 1996 the ECJ ruled that Regulation (EEC) no. 990/93 applied to the type of aircraft
referred to in the Supreme Court's question to it. The ECJ noted that the domestic proceedings showed that
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referred to in the Supreme Court's question to it. The ECJ noted that the domestic proceedings showed that
the aircraft lease had been entered into “in complete good faith” and was not intended to circumvent the
sanctions against the FRY.
53. It did not accept the applicant company's first argument that Regulation (EEC) no. 990/93 did not
apply because of the control on a daily basis of the aircraft by an innocent non-FRY party. Having
considered the wording of Regulation (EEC) no. 990/93, its context and aims (including the text and aims
of the United Nations Security Council resolutions it implemented), it found nothing to support the
distinction made by the applicant company. Indeed, the use of day-to-day operation and control as opposed
to ownership as a criterion for applying the regulation would jeopardise the effectiveness of the sanctions.
54. The applicant company's second argument was that the application of Regulation (EEC) no. 990/93
would infringe its right to peaceful enjoyment of its possessions and its freedom to pursue a commercial
activity because it would destroy and obliterate the business of a wholly innocent party when the FRY
owners had already been punished by having their bank accounts blocked. The ECJ did not find this
persuasive:
“It is settled case-law that the fundamental rights invoked by [the applicant company] are not absolute and their exercise may
be subject to restrictions justified by objectives of general interest pursued by the Community (see [the above-cited Hauer case];
Case 5/88, Wachauf v. Bundesamt fuer Ernaehrung und Forstwirtschaft [1989] ECR 2609; and Case C-280/93, Germany v.
Council [1994] ECR I-4973).
Any measure imposing sanctions has, by definition, consequences which affect the right to property and the freedom to pursue
a trade or business, thereby causing harm to persons who are in no way responsible for the situation which led to the adoption of
the sanctions.
Moreover, the importance of the aims pursued by the regulation at issue is such as to justify negative consequences, even of a
substantial nature, for some operators.
The provisions of [Regulation (EEC) no. 990/93] contribute in particular to the implementation at Community level of the
sanctions against the [FRY] adopted, and later strengthened, by several resolutions of the Security Council of the United Nations.
...
It is in the light of those circumstances that the aim pursued by the sanctions assumes a special importance, which is, in
particular, in terms of [Regulation (EEC) no. 990/93] and more especially the eighth recital in the preamble thereto, to dissuade
the [FRY] from 'further violating the integrity and security of the Republic of Bosnia-Herzegovina and to induce the Bosnian
Serb party to cooperate in the restoration of peace in this Republic'.
As compared with an objective of general interest so fundamental for the international community, which consists in putting an
end to the state of war in the region and to the massive violations of human rights and humanitarian international law in the
Republic of Bosnia-Herzegovina, the impounding of the aircraft in question, which is owned by an undertaking based in or
operating from the [FRY], cannot be regarded as inappropriate or disproportionate.”
55. The answer to the Supreme Court's question was therefore:
“Article 8 of Council Regulation (EEC) no. 990/93 of 26 April 1993 concerning trade between the European Economic
Community and the [FRY] applies to an aircraft which is owned by an undertaking based in or operating from the [FRY], even
though the owner has leased it for four years to another undertaking, neither based in nor operating from [the FRY] and in which
no person or undertaking based in or operating from [the FRY] has a majority or controlling interest.”
56. On 6 August 1996 the Minister reinstated the impounding of the aircraft under Article 8 of
Regulation (EEC) no. 990/93.
H. The first and second judicial review proceedings: judgments of the Supreme Court
57. By a notice of motion dated 29 October 1996, the applicant company applied to the Supreme Court
for, inter alia, an order determining the action “in the light of the decision of the [ECJ]” and for an order
providing for the costs of the Supreme Court and ECJ proceedings. The grounding affidavit of the applicant
company of the same date stressed its bona fides, the benefit of having had the ECJ examine the regulation
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company of the same date stressed its bona fides, the benefit of having had the ECJ examine the regulation
for the first time, the fact that ultimate responsibility for its predicament lay with the FRY authorities and
that its operations had been destroyed by the impoundment. It referred to Regulation (EC) no. 2815/95,
noting that it did not allow aircraft already impounded to fly whereas those not previously impounded could
do so. Since its aircraft was the only one impounded under the sanctions regime, no other lessee could have
initiated the action it had in order to clarify the meaning of the relevant regulation.
58. On 29 November 1996 the Supreme Court delivered its judgment allowing the appeal of the Minister
for Transport from the order of the High Court of 21 June 1994. It noted that the sole issue in the case was
whether the Minister had been bound by Article 8 of Regulation (EEC) no. 990/93 to impound the aircraft.
Having noted the answer of the ECJ, the Supreme Court simply stated that it was bound by that decision and
the Minister's appeal was allowed.
59. In May 1998 the Supreme Court allowed the appeal from the order of the High Court of 22 January
1996. Given the intervening rulings of the ECJ and of the Supreme Court (of July and November 1996,
respectively), the appeal was moot since, from the date of the initial order of impoundment, the aircraft had
been lawfully detained under Article 8 of Regulation (EEC) no. 990/93. There was no order as to costs.
I. The return of the aircraft to JAT
60. The applicant company's leases on both aircraft had expired by May 1996 (see paragraph 12 above).
Further to the judgment of the Supreme Court of November 1996 (see paragraph 58 above) and given the
relaxation of the sanctions regime (see paragraphs 67-71 below), JAT and the Minister for Transport
reached an agreement in July 1997 concerning the latter's costs. JAT deposited 389,609.95 Irish pounds into
a blocked account in the joint names of the Chief State Solicitor and its solicitors to cover all parking,
maintenance, insurance and legal costs of the Minister for Transport associated with the impoundment. On
30 July 1997 the aircraft was returned to JAT.
II. THE SANCTIONS REGIME: THE RELEVANT PROVISIONS
A. Setting up the sanctions regime
61. In September 1991 the United Nations Security Council (UNSC) adopted a Resolution (Resolution
713 (1991)) under Chapter VII of its Charter by which it expressed concern about the conflict in the former
Yugoslavia and implemented a weapons and military embargo. UNSC Resolution 724 (1991), adopted in
December 1991, established a Sanctions Committee to administer the relevant resolutions of the United
Nations Security Council.
62. The relevant parts of UNSC Resolution 757 (1992), adopted on 30 May 1992, provided as follows:
“5. Decides further that no State shall make available to the authorities in the [FRY] or to any commercial, industrial or public
utility undertaking in the [FRY], any funds, or any other financial or economic resources and shall prevent their nationals and
any persons within their territories from removing from their territories or otherwise making available to those authorities or to
any such undertaking any such funds or resources and from remitting any other funds to persons or bodies within the [FRY],
except payments exclusively for strictly medical or humanitarian purposes and foodstuffs;
...
7. Decides that all States shall:
(a) Deny permission to any aircraft to take off from, land in or overfly their territory if it is destined to land in or has taken off
from the territory of the [FRY], unless the particular flight has been approved, for humanitarian or other purposes consistent with
the relevant resolutions of the Council, by the [Sanctions Committee];
(b) Prohibit, by their nationals or from their territory, the provision of engineering or maintenance servicing of aircraft
registered in the [FRY] or operated by or on behalf of entities in the [FRY] or components for such aircraft, the certification of
airworthiness for such aircraft, and the payment of new claims against existing insurance contracts and the provision of new
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airworthiness for such aircraft, and the payment of new claims against existing insurance contracts and the provision of new
direct insurance for such aircraft;
...
9. Decides further that all States, and the authorities in the [FRY], shall take the necessary measures to ensure that no claim
shall lie at the instance of the authorities in the [FRY], or of any person or body in the [FRY], or of any person claiming through
or for the benefit of any such person or body, in connection with any contract or other transaction where its performance was
affected by reason of the measures imposed by the present resolution and related resolutions;”
The resolution was implemented in the European Community by a Council regulation of June 1992
(Regulation (EEC) no. 1432/92), which was in turn implemented in Ireland by statutory instrument: the
European Communities (Prohibition of Trade with the Republics of Serbia and Montenegro) Regulations
1992 (Statutory Instrument no. 157 of 1992) made it an offence under Irish law from 25 June 1992 to act in
breach of Regulation (EEC) no. 1432/92.
63. UNSC Resolution 787 (1992), adopted in November 1992, further tightened the economic sanctions
against the FRY. This resolution was implemented by Regulation (EEC) no. 3534/92, adopted in December
1992.
64. UNSC Resolution 820 (1993), adopted on 17 April 1993, provided, inter alia, as follows:
“24. Decides that all States shall impound all vessels, freight vehicles, rolling stock and aircraft in their territories in which a
majority or controlling interest is held by a person or undertaking in or operating from the [FRY] and that these vessels, freight
vehicles, rolling stock and aircraft may be forfeit to the seizing State upon a determination that they have been in violation of
resolutions 713 (1991), 757 (1992), 787 (1992) or the present resolution;”
65. This resolution was implemented by Regulation (EEC) no. 990/93, which came into force on 28 April
1993, once published in the Official Journal (L 102/14 (1993)) of that date (as specified in Article 13 of the
regulation) pursuant to Article 191(2) (now Article 254(2)) of the Treaty establishing the European
Community (“the EC Treaty”).
Articles 1.1(e) and 8 to 10 of that regulation provided as follows:
Article 1
“1. As from 26 April 1993, the following shall be prohibited:
...
(e) the provision of non-financial services to any person or body for purposes of any business carried out in the Republics of
Serbia and Montenegro.”
Article 8
“All vessels, freight vehicles, rolling stock and aircraft in which a majority or controlling interest is held by a person or
undertaking in or operating from the [FRY] shall be impounded by the competent authorities of the Member States.
Expenses of impounding vessels, freight vehicles, rolling stock and aircraft may be charged to their owners.”
Article 9
“All vessels, freight vehicles, rolling stock, aircraft and cargoes suspected of having violated, or being in violation of
Regulation (EEC) no. 1432/92 or this Regulation shall be detained by the competent authorities of the Member States pending
investigations.”
Article 10
“Each Member State shall determine the sanctions to be imposed where the provisions of this [Regulation] are infringed.
Where it has been ascertained that vessels, freight vehicles, rolling stock, aircraft and cargoes have violated this Regulation,
they may be forfeited to the Member State whose competent authorities have impounded or detained them.”
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they may be forfeited to the Member State whose competent authorities have impounded or detained them.”
66. On 4 June 1993 the Irish Minister for Tourism and Trade adopted the European Communities
(Prohibition of Trade with the Federal Republic of Yugoslavia (Serbia and Montenegro)) Regulations 1993
(Statutory Instrument no. 144 of 1993), the relevant part of which provided as follows:
“3. A person shall not contravene a provision of [Regulation (EEC) no. 990/93].
4. A person who, on or after the 4th day of June, 1993, contravenes Regulation 3 of these Regulations shall be guilty of an
offence and shall be liable on summary conviction to a fine not exceeding £1,000 or to imprisonment for a term not exceeding 12
months or to both.
5. The Minister for Transport, Energy and Communications shall be the competent authority for the purpose of Articles 8 and
9 of [Regulation (EEC) no. 990/93] except in so far as the said Article 8 relates to vessels and the said Article 9 relates to
cargoes.
6. (1) The powers conferred on the Minister for Transport, Energy and Communications by Articles 8 and 9 of [Regulation
(EEC) no. 990/93] as the competent authority for the purposes of those Articles may be exercised by –
(a) members of the Garda Síochána,
(b) officers of customs and excise,
(c) Airport Police, Fire Services Officers of Aer Rianta, ...
(d) Officers of the Minister for Transport ... duly authorised in writing by the Minister for Transport, Energy and
Communications in that behalf.
...
(3) A person shall not obstruct or interfere with a person specified in sub-paragraph (a), (b) or (c) of paragraph (1) of this
Regulation, or a person authorised as aforesaid, in the exercise by him of any power aforesaid.
(4) A person who, on or after the 4th day of June, 1993, contravenes sub-paragraph (3) of this Regulation shall be guilty of an
offence and shall be liable on summary conviction to a fine not exceeding £500 or to imprisonment for a term not exceeding
3 months or to both.
7. Where an offence under Regulation 4 or 6 of these Regulations is committed by a body corporate and is proved to have
been so committed with the consent, connivance or approval of or to have been attributable to any neglect on the part of any
person, being a director, manager, secretary or other officer of the body corporate or a person who was purporting to act in any
such capacity, that person as well as the body corporate, shall be guilty of an offence and shall be liable to be proceeded against
and punished as if he were guilty of the first-mentioned offence.”
B. Lifting the sanctions regime
67. UNSC Resolution 943 (1994), adopted on 23 September 1994, provided, inter alia, as follows:
“(i) the restrictions imposed by paragraph 7 of Resolution 757 (1992), paragraph 24 of Resolution 820 (1993) with regard to
aircraft which are not impounded at the date of adoption of this Resolution, ...
shall be suspended for an initial period of 100 days from the day following the receipt ... of a report from the Secretary-General
...”
This resolution was implemented by Regulation (EC) no. 2472/94 of 10 October 1994, Article 5 of which
suspended the operation of Article 8 of Regulation (EEC) no. 990/93 “with regard to aircraft ... which had
not been impounded at 23 September 1994”.
68. The suspension of UNSC Resolution 820 (1993) was extended further by periods of 100 days on
numerous occasions in 1995, and these resolutions were each implemented by Community regulations.
69. UNSC Resolution 820 (1993) was suspended indefinitely in 1995 by Resolution 1022 (1995). It was
implemented in the Community by Regulation (EC) no. 2815/95 of 4 December 1995 which provided, inter
alia, as follows:
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alia, as follows:
“1. [Regulation (EEC) no. 990/93] is hereby suspended with regard to the [FRY].
2. As long as [Regulation (EEC) no. 990/93] remains suspended, all assets previously impounded pursuant to that Regulation
may be released by Member States in accordance with the law, provided that any such assets that are subject to any claims, liens,
judgments, or encumbrances, or which are the assets of any person, partnership, corporation or other entity found or deemed to be
insolvent under the law or the accounting principles prevailing in the relevant Member State, shall remain impounded until
released in accordance with the applicable law.”
70. UNSC Resolution 820 (1993) was later definitively suspended. That suspension was implemented by
Regulation (EC) no. 462/96 of 27 February 1996, the relevant part of which provided as follows:
“As long as the Regulations [inter alia, Regulation (EEC) no. 990/93] remain suspended, all funds and assets previously
frozen or impounded pursuant to those Regulations may be released by Member States in accordance with law, provided that
any such funds or assets that are subject to any claims, liens, judgments or encumbrances, ... shall remain frozen or impounded
until released in accordance with the applicable law.”
71. On 9 December 1996 Regulation (EC) no. 2382/96 repealed, inter alia, Regulation (EEC) no. 990/93.
On 2 March 2000 the European Communities (Revocation of Trade Sanctions concerning the Federal
Republic of Yugoslavia (Serbia and Montenegro) and Certain Areas of the Republics of Croatia and
Bosnia-Herzegovina) Regulations 2000 (Statutory Instrument no. 60 of 2000) repealed Statutory Instrument
no. 144 of 1993.
III. RELEVANT COMMUNITY LAW AND PRACTICE
72. This judgment is concerned with the provisions of Community law of the “first pillar” of the
European Union.
A. Fundamental rights: case-law of the ECJ1
73. While the founding treaties of the European Communities did not contain express provisions for the
protection of human rights, the ECJ held as early as 1969 that fundamental rights were enshrined in the
general principles of Community law protected by the ECJ2. By the early 1970s the ECJ had confirmed that,
in protecting such rights, it was inspired by the constitutional traditions of the member States3 and by the
guidelines supplied by international human rights treaties on which the member States had collaborated or
to which they were signatories4. The Convention's provisions were first explicitly referred to in 19755, and
by 1979 its special significance amongst international treaties on the protection of human rights had been
recognised by the ECJ6. Thereafter the ECJ began to refer extensively to Convention provisions (sometimes
where the Community legislation under its consideration had referred to the Convention)7 and latterly to
this Court's jurisprudence8, the more recent ECJ judgments not prefacing such Convention references with
an explanation of their relevance to Community law.
74. In a judgment of 1991, the ECJ was able to describe the role of the Convention in Community law in
the following terms9:
“41. ... as the Court has consistently held, fundamental rights form an integral part of the general principles of law, the
observance of which it ensures. For that purpose the Court draws inspiration from the constitutional traditions common to the
Member States and from the guidelines supplied by international treaties for the protection of human rights on which the
Member States have collaborated or of which they are signatories ... The [Convention] has special significance in that respect ...
It follows that ... the Community cannot accept measures which are incompatible with observance of the human rights thus
recognised and guaranteed.
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42. As the Court has held ... it has no power to examine the compatibility with the [Convention] of national rules which do not
fall within the scope of Community law. On the other hand, where such rules do fall within the scope of Community law, and
reference is made to the Court for a preliminary ruling, it must provide all the criteria of interpretation needed by the national
court to determine whether those rules are compatible with the fundamental rights the observance of which the Court ensures and
which derive in particular from the [Convention].”
75. This statement has often been repeated by the ECJ, as, notably, in its opinion on accession by the
Community to the Convention10, in which it opined, in particular, that respect for human rights was “a
condition of the lawfulness of Community acts”.
76. In Kondova11, relied on by the applicant company, the ECJ ruled on the refusal by the United
Kingdom of an establishment request of a Bulgarian national on the basis of a provision in an association
agreement between the European Community and Bulgaria:
“... Moreover, such measures [of the British immigration authorities] must be adopted without prejudice to the obligation to
respect that national's fundamental rights, such as the right to respect for his family life and the right to respect for his property,
which follow, for the Member State concerned, from the European Convention for the Protection of Human Rights and
Fundamental Freedoms of 4 November 1950 or from other international instruments to which that State may have acceded.”
B. Relevant treaty provisions12
1. Concerning fundamental rights
77. The case-law developments noted above were reflected in certain treaty amendments. In the
preamble to the Single European Act of 1986, the Contracting Parties expressed their determination
“to work together to promote democracy on the basis of the fundamental rights recognised in the constitutions and laws of the
Member States, in the Convention for the Protection of Human Rights and Fundamental Freedoms ...”.
78. Article 6 (formerly Article F) of the Treaty on European Union of 1992 reads as follows:
“1. The Union is founded on the principles of liberty, democracy, respect for human rights and fundamental freedoms, and the
rule of law, principles which are common to the Member States.
2. The Union shall respect fundamental rights, as guaranteed by the European Convention for the Protection of Human Rights
and Fundamental Freedoms signed in Rome on 4 November 1950 and as they result from the constitutional traditions common to
the Member States, as general principles of Community law.
3. The Union shall respect the national identities of its Member States.
4. The Union shall provide itself with the means necessary to attain its objectives and carry through its policies.”
79. The Treaty of Amsterdam of 1997 required the ECJ, in so far as it had jurisdiction, to apply human
rights standards to acts of Community institutions and gave the European Union the power to act against a
member State that had seriously and persistently violated the principles of Article 6(1) of the Treaty on
European Union, cited above.
80. The Charter of Fundamental Rights of the European Union, proclaimed in Nice on 7 December 2000
(not fully binding), states in its preamble that it
“reaffirms, with due regard for the powers and tasks of the Community and the Union and the principle of subsidiarity, the
rights as they result, in particular, from the constitutional traditions and international obligations common to the Member States,
the Treaty on European Union, the Community Treaties, the European Convention for the Protection of Human Rights and
Fundamental Freedoms, the Social Charters adopted by the Community and by the Council of Europe and the case-law of the
Court of Justice of the European Communities and of the European Court of Human Rights”.
Article 52 § 3 of the Charter provides:
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“In so far as this Charter contains rights which correspond to rights guaranteed by the Convention for the Protection of Human
Rights and Fundamental Freedoms, the meaning and scope of those rights shall be the same as those laid down by the said
Convention. This provision shall not prevent Union law providing more extensive protection.”
81. The Treaty establishing a Constitution for Europe, signed on 29 October 2004 (not in force), provides
in its Article I-9 entitled “Fundamental Rights”:
“1. The Union shall recognise the rights, freedoms and principles set out in the Charter of Fundamental Rights which
constitutes Part II.
2. The Union shall accede to the European Convention for the Protection of Human Rights and Fundamental Freedoms. Such
accession shall not affect the Union's competences as defined in the Constitution.
3. Fundamental rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental
Freedoms and as they result from the constitutional traditions common to the Member States, shall constitute general principles
of the Union's law.”
The Charter of Fundamental Rights cited above has been incorporated as Part II of this constitutional
treaty.
2. Other relevant provisions of the EC Treaty
82. Article 5 (now Article 10) provides:
“Member States shall take all appropriate measures, whether general or particular, to ensure fulfilment of the obligations
arising out of this Treaty or resulting from action taken by the institutions of the Community. They shall facilitate the
achievement of the Community's tasks.
They shall abstain from any measure which could jeopardise the attainment of the objectives of this Treaty.”
83. The relevant part of Article 189 (now Article 249) reads as follows:
“A regulation shall have general application. It shall be binding in its entirety and directly applicable in all Member States. ...”
The description of a regulation as being “binding in its entirety” and “directly applicable” in all member
States means that it takes effect13 in the internal legal orders of member States without the need for
domestic implementation.
84. Article 234 (now Article 307) reads as follows:
“The rights and obligations arising from agreements concluded before 1 January 1958 or, for acceding States, before the date
of their accession, between one or more Member States on the one hand, and one or more third countries on the other, shall not
be affected by the provisions of this Treaty.
To the extent that such agreements are not compatible with this Treaty, the Member State or States concerned shall take all
appropriate steps to eliminate the incompatibilities established. Member States shall, where necessary, assist each other to this
end and shall, where appropriate, adopt a common attitude.
In applying the agreements referred to in the first paragraph, Member States shall take into account the fact that the advantages
accorded under this Treaty by each Member State form an integral part of the establishment of the Community and are thereby
inseparably linked with the creation of common institutions, the conferring of powers upon them and the granting of the same
advantages by all the other Member States.”
C. The European Community control mechanisms
85. As regards the control exercised by the ECJ and national courts, the ECJ has stated as follows:
“39. Individuals are ... entitled to effective judicial protection of the rights they derive from the Community legal order, and
the right to such protection is one of the general principles of law stemming from the constitutional traditions common to the
Member States. That right has also been enshrined in Articles 6 and 13 of the European Convention for the Protection of Human
Rights and Fundamental Freedoms ...
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Rights and Fundamental Freedoms ...
40. By Article 173 and Article 184 (now Article 241 EC), on the one hand, and by Article 177, on the other, the Treaty has
established a complete system of legal remedies and procedures designed to ensure judicial review of the legality of acts of the
institutions, and has entrusted such review to the Community Courts ... Under that system, where natural or legal persons cannot,
by reason of the conditions for admissibility laid down in the fourth paragraph of Article 173 of the Treaty, directly challenge
Community measures of general application, they are able, depending on the case, either indirectly to plead the invalidity of such
acts before the Community Courts under Article 184 of the Treaty or to do so before the national courts and ask them, since they
have no jurisdiction themselves to declare those measures invalid ..., to make a reference to the Court of Justice for a preliminary
ruling on validity.
41. Thus it is for the Member States to establish a system of legal remedies and procedures which ensure respect for the right
to effective judicial protection.
42. In that context, in accordance with the principle of sincere cooperation laid down in Article 5 of the Treaty, national courts
are required, so far as possible, to interpret and apply national procedural rules governing the exercise of rights of action in a way
that enables natural and legal persons to challenge before the courts the legality of any decision or other national measure relative
to the application to them of a Community act of general application, by pleading the invalidity of such an act.”14
1. Direct actions before the ECJ
(a) Actions against Community institutions
86. Article 173 (now Article 230) provides member States, the European Parliament, the Council and the
Commission with a right to apply to the ECJ for judicial review of a Community act (“annulment action”).
Applications from the Court of Auditors and the European Central Bank are more restricted and, while
subject to even greater restrictions, an individual (a natural or legal person) can also challenge “a decision
addressed to that person or ... a decision which, although in the form of a regulation or a decision addressed
to another person, is of direct and individual concern to the former” (Article 173(4), now Article 230(4)).
87. According to Article 175 (now Article 232) member States and the Community institutions can also
call, among others, the Council, the Commission and the European Parliament to account before the ECJ for
a failure to perform their Treaty obligations. Article 184 (now Article 241) allows a plea of illegality of a
regulation (adopted jointly by the European Parliament and the Council, by the Council, by the Commission
or by the European Central Bank) to be made during proceedings already pending before the ECJ on the
basis of another Article: a successful challenge will result in the ECJ declaring its inapplicability inter
partes, but not the annulment of the relevant provision.
88. Having legal personality of its own, the European Community can be sued for damages in tort,
described as its non-contractual liability. Its institutions will be considered liable for wrongful (illegal or
invalid) acts or omissions by the institution (fautes de service) or its servants (fautes personnelles) which
have caused damage to the claimant (Articles 178 and 215, now Articles 235 and 288). Unlike actions under
Articles 173, 175 and 184 (now Articles 230, 232 and 241), and subject to the various inherent limitations
imposed by the elements of the action to be established, there are no personal or locus standi limitations on
the right to bring such an action. It can therefore provide an independent cause of action15 before the ECJ to
review the legality of an act or failure to act to those (including individuals) who do not have locus standi
under Articles 173 or 175 but who have suffered damage.
(b) Actions against member States
89. Under Article 169 (now Article 226) and Article 170 (now Article 227), both the Commission (in
fulfilment of its role as “guardian of the Treaties”) and a member State are accorded, notably, the right to
take proceedings against a member State considered to have failed to fulfil its Treaty obligations. If the ECJ
finds that a member State has so failed, the State shall be required to take the necessary measures to comply
with the judgment of the ECJ (Article 171, now Article 228). The Commission can also take proceedings
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with the judgment of the ECJ (Article 171, now Article 228). The Commission can also take proceedings
against a member State in other specific areas of Community regulation (such as State aids – Article 93, now
Article 88).
(c) Actions against individuals
90. There is no provision in the EC Treaty for a direct action before the ECJ against individuals.
Individuals may, however, be fined under certain provisions of Community law; such fines may, in turn, be
challenged before the ECJ.
2. Indirect actions before the national courts
91. Where individuals seek to assert their Community rights before national courts or tribunals, they may
do so in the context of any proceedings of national law, public or private, in which Community rights are
relevant, in pursuit of any remedy, final or interim, under national law.
(a) Direct effects
92. The “direct effect” of a provision of Community law means that it confers upon individuals rights
and obligations they can rely on before the national courts. A provision with direct effect must not only be
applied by the domestic courts, but it will take precedence over conflicting domestic law pursuant to the
principle of supremacy of Community law16. The conditions for acquiring direct effect are that the provision
“contains a clear and unconditional prohibition which is not a positive but a negative obligation. This obligation, moreover, is
not qualified by any reservation on the part of the States which would make its implementation conditional upon a positive
legislative measure enacted under national law. The very nature of this prohibition makes it ideally adapted to produce direct
effects in the legal relationship between States and their subjects” 17.
93. Certain EC Treaty provisions are considered to have direct effect, whether they impose a negative or
positive obligation and certain have been found to have, as well as “vertical” effect (between the State and
the individual), a horizontal effect (between individuals). Given the text of Article 189 (now Article 249),
the provisions of regulations are normally considered to have direct effect, both vertically and horizontally.
Directives and decisions can, in certain circumstances, have vertical direct effect, though recommendations
and opinions, having no binding force, cannot generally be relied on by individuals before national courts.
(b) The principles of indirect effect and State liability
94. The rights an individual may claim under Community law are no longer confined to those under
directly effective Community provisions: they now include rights based on the principles of indirect effect
and State liability developed by the ECJ. According to the principle of “indirect effect” (“interprétation
conforme”), a member State's obligations under Article 5 (now Article 10) require its authorities (including
the judiciary) to interpret as far as possible national legislation in the light of the wording and purpose of
the relevant directive18.
95. The principle of State liability was first developed in Francovich19. The ECJ found that, where a
State had failed to implement a directive (whether or not directly effective), it would be obliged to
compensate individuals for resulting damage if three conditions were met: the directive conferred a right on
individuals; the content of the right was clear from the provisions of the directive itself; and there was a
causal link between the State's failure to fulfil its obligation and the damage suffered by the person affected.
In 1996 the ECJ extended the notion of State liability to all domestic acts and omissions (legislative,
executive and judicial) in breach of Community law provided the conditions for liability were fulfilled20.
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(c) Preliminary reference procedure
96. In order to assist national courts in correctly implementing Community law and maintaining its
uniform application21, Article 177 (now Article 234) provides national courts with the opportunity to
consult the ECJ. In particular, Article 177 reads as follows:
“The Court of Justice shall have jurisdiction to give preliminary rulings concerning:
(a) the interpretation of this Treaty;
(b) the validity and interpretation of acts of the institutions of the Community ...;
...
Where such a question is raised before any court or tribunal of a Member State, that court or tribunal may, if it considers that a
decision on the question is necessary to enable it to give judgment, request the Court of Justice to give a ruling thereon.
Where any such question is raised in a case pending before a court or tribunal of a Member State against whose decisions there
is no judicial remedy under national law, that court or tribunal shall bring the matter before the Court of Justice.”
97. The ECJ described the nature of this preliminary reference procedure as follows22:
“30. ... the procedure provided for by Article 234 EC is an instrument of cooperation between the Court of Justice and national
courts by means of which the former provides the latter with interpretation of such Community law as is necessary for them to
give judgment in cases upon which they are called to adjudicate ...
31. In the context of that cooperation, it is for the national court seised of the dispute, which alone has direct knowledge of the
facts giving rise to the dispute and must assume responsibility for the subsequent judicial decision, to determine in the light of the
particular circumstances of the case both the need for a preliminary ruling in order to enable it to deliver judgment and the
relevance of the questions which it submits to the Court. Consequently, where the questions submitted concern the interpretation
of Community law, the Court of Justice is, in principle, bound to give a ruling ... ”
98. Article 177 distinguishes between domestic courts which have a discretion to refer and those courts
of last instance for which referral is mandatory. However, according to the CILFIT23 judgment, both
categories of court must first determine whether an ECJ ruling on the Community law matter is “necessary
to enable it to give judgment”, even if the literal meaning of Article 177 would suggest otherwise:
“It follows from the relationship between the second and the third paragraphs of Article 177 that the courts ... referred to in the
third paragraph have the same discretion as any other national court ... to ascertain whether a decision on a question of
Community law is necessary to enable them to give judgment.”
In CILFIT the ECJ indicated that a court of final instance would not be obliged to make a reference to the
ECJ if: the question of Community law was not relevant (namely, if the answer to the question of
Community law, regardless of what it may be, could in no way affect the outcome of the case); the
provision had already been interpreted by the ECJ, even though the questions in issue were not strictly
identical; and the correct application of Community law was so obvious as to leave no scope for reasonable
doubt, not only to the national court but also to the courts of the other member States and to the ECJ. This
matter was to be assessed in the light of the specific characteristics of Community law, the particular
difficulties to which its interpretation gave rise and the risk of divergences in judicial decisions within the
Community.
99. Once the reference is made, the ECJ will rule on the question put to it and that ruling is binding on
the national court. The ECJ has no power to decide the issue before the national court and cannot therefore
apply the provision of Community law to the facts of the particular case in question24. The domestic court
will decide on the appropriate remedy.
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IV. OTHER RELEVANT LEGAL PROVISIONS
A. The Vienna Convention on the Law of Treaties of 1969
100. Article 31 § 1, entitled “General rule of interpretation”, provides that a treaty shall be interpreted “in
good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context
and in light of its object and purpose”. Article 31 § 3 further provides that, as well as the context, any
subsequent practice in the application of the treaty which establishes the agreement of the parties regarding
its interpretation together with any relevant rules of international law applicable in the relations between the
parties shall be taken into account.
B. The Irish Constitution
101. The relevant part of Article 29 of the Irish Constitution reads as follows:
“1. Ireland affirms its devotion to the ideal of peace and friendly co-operation amongst nations founded on international
justice and morality.
...
3. Ireland accepts the generally recognised principles of international law as its rule of conduct in its relations with other
States.
4. 1o ...
10o No provision of this Constitution invalidates laws enacted, acts done or measures adopted by the State which are
necessitated by the obligations of membership of the European Union or of the Communities, or prevents laws enacted, acts done
or measures adopted by the European Union or by the Communities or by institutions thereof, or by bodies competent under the
Treaties establishing the Communities, from having the force of law in the State.”
THE LAW
I. PRELIMINARY OBJECTIONS
102. The Government maintained that the applicant company had failed to exhaust domestic remedies
because it had not brought an action for damages (in contract or tort) against TEAM or initiated a
constitutional action against Ireland. In any event, the application should have been introduced within six
months of the ECJ ruling (since the Supreme Court had no choice but to implement that ruling) and was an
abuse of the right of petition (given that the applicant company was not an “innocent” party, attempting as it
did to mislead the domestic courts and this Court in a number of material respects). The European
Commission added that the Supreme Court did not refer a question concerning Regulation (EC) no. 2472/94
to the ECJ because the applicant company had not relied on the regulation in the domestic proceedings.
Other than referring to the Chamber's admissibility decision, the applicant company did not comment.
The Chamber considered, for reasons outlined in its decision, that it would have been unreasonable to
require the applicant company to have taken proceedings in tort, contract or under the Constitution instead
of, or during, its action in judicial review. It had not, moreover, been demonstrated that such proceedings
offered any real prospects of success thereafter. The final decision, for the purposes of Article 35 § 1 of the
Convention and the six-month time-limit, was that of the Supreme Court of November 1996 which applied
the ECJ's ruling. Finally, the Chamber found that the parties' submissions about the applicant company's
bona fides made under Article 35 § 3 of the Convention and under Article 1 of Protocol No. 1 were the
same and, further, that the bona fides issue was so closely bound up with the merits of the complaint under
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same and, further, that the bona fides issue was so closely bound up with the merits of the complaint under
the latter Article that it was appropriate to join it to the merits.
103. The Grand Chamber is not precluded from deciding admissibility questions at the merits stage: the
Court can dismiss applications it considers inadmissible “at any stage of the proceedings”, so that even at
the merits stage (and subject to Rule 55 of the Rules of Court) it may reconsider an admissibility decision
where it concludes that the application should have been declared inadmissible for one of the reasons listed
in Article 35 of the Convention (see Pisano v. Italy (striking out) [GC], no. 36732/97, § 34, 24 October
2002, and Odièvre v. France [GC], no. 42326/98, §§ 21-23, ECHR 2003-III).
104. However, the Grand Chamber observes that the present preliminary objections are precisely the
same as those raised before the Chamber, and dismissed by the latter in its admissibility decision, and it sees
no reason to depart from the Chamber's conclusions in those respects. In particular, the Government have
made no new legal submissions to the Grand Chamber as regards their exhaustion of domestic remedies and
time-limit objections. While they have made additional factual submissions as regards the applicant
company's bona fides upon which their abuse of process claim is based, this does not affect in any respect
the Chamber's view that the bona fides issue would fall to be examined, if at all, as part of the merits of the
complaint under Article 1 of Protocol No. 1.
105. Without prejudice to the question of whether it is open to a third party admitted to a case following
its admissibility to make a preliminary objection, the Grand Chamber does not consider that the above-noted
comment of the European Commission warrants a conclusion that the applicant company failed to exhaust
domestic remedies. Regulation (EC) no. 2472/94 expressly excluded from its provisions aircraft already
impounded under Regulation (EEC) no. 990/93 and the applicant company had already challenged, in the
very domestic proceedings to which the European Commission referred, the lawfulness of the original
impoundment under Regulation (EEC) no. 990/93.
106. The Court therefore dismisses all preliminary objections before it.
II. SUBMISSIONS CONCERNING ARTICLE 1 OF THE CONVENTION AND ARTICLE 1 OF
PROTOCOL No. 1
107. The applicant company maintained that the manner in which Ireland had implemented the sanctions
regime to impound its aircraft was a reviewable exercise of discretion within the meaning of Article 1 of the
Convention and a violation of Article 1 of Protocol No. 1. The Government disagreed, as did the third
parties with the exception (in part) of the Institut de formation en droits de l'homme du barreau de Paris.
The Court considers it clearer to set out the submissions made to it in the order followed below.
A. The Government
1. Article 1 of the Convention
108. The Convention must be interpreted in such a manner as to allow States Parties to comply with
international obligations so as not to thwart the current trend towards extending and strengthening
international cooperation (see Waite and Kennedy v. Germany [GC], no. 26083/94, § 72, ECHR 1999-I, and
Beer and Regan v. Germany [GC], no. 28934/95, § 62, 18 February 1999). It is not therefore contrary to the
Convention to join international organisations and undertake other obligations where such organisations
offer human rights protection equivalent to the Convention. This principle was first outlined in M. & Co. v.
the Federal Republic of Germany (no. 13258/87, Commission decision of 9 February 1990, Decisions and
Reports (DR) 64, p. 138) and was then endorsed in Heinz v. the Contracting Parties also parties to the
European Patent Convention (no. 21090/92, Commission decision of 10 January 1994, DR 76-A, p. 125).
109. The critical point of distinction for the Government was whether the impugned State act amounted
to an obligation or the exercise of a discretion. If, on the one hand, the State had been obliged as a result of
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to an obligation or the exercise of a discretion. If, on the one hand, the State had been obliged as a result of
its membership of an international organisation to act in a particular manner, the only matter requiring
assessment was the equivalence of the human rights protection in the relevant organisation (the “M. & Co.
doctrine” described above). If, on the other hand, the State could as a matter of law exercise independent
discretion, this Court was competent. Contrary to the applicant company's submission, Matthews v. the
United Kingdom ([GC], no. 24833/94, ECHR 1999-I), Cantoni v. France (judgment of 15 November 1996,
Reports of Judgments and Decisions 1996-V) and Hornsby v. Greece (judgment of 19 March 1997, Reports
1997-II), had no application to the present case, as they were concerned with discretionary decisions
available to, and taken by, States.
110. Moreover, the Government considered that Ireland had acted out of obligation and that the
European Community and the United Nations provided human rights protection equivalent to that of the
Convention.
As to the international obligations of the Irish State, the Government argued that it had complied with
mandatory obligations derived from UNSC Resolution 820 (1993) and Regulation (EEC) no. 990/93. As a
matter of Community law, a regulation left no room for the independent exercise of discretion by the State.
The direct effectiveness of Regulation (EEC) no. 990/93 meant that Statutory Instrument no. 144 of 1993
had no bearing on the State's legal obligation to impound. The ECJ later conclusively confirmed the
applicability of Article 8 of Regulation (EEC) no. 990/93 and, thereby, the lawful basis for the
impoundment. Even if the jurisdiction of the ECJ in a reference case could be considered limited, it had
authoritatively resolved the present domestic action.
For the State to have done anything other than apply the ECJ ruling, even with a view to its Convention
compliance, would have been contrary to its obligation of “loyal cooperation” (Article 5, now Article 10, of
the EC Treaty – see paragraph 82 above) and undermined the special judicial cooperation between the
national court and the ECJ envisaged by Article 177 (now Article 234) of the EC Treaty (see paragraphs 96-
99 above). As to the applicant company's suggestion that the Supreme Court should have awarded
compensation while applying the ECJ ruling, the Government considered that it was implicit in the opinion
of the Advocate General in the ruling of the ECJ and in the second sentence of Article 8 of Regulation
(EEC) no. 990/93 that that regulation did not envisage the payment of compensation. If the scheme
envisaged was one of detention without compensation, it would be contrary to the principle of uniform
application and supremacy of Community law for member States nevertheless to consider making an award.
Finally, the Government found unconvincing the applicant company's suggestion that the Supreme Court
had exercised discretion in not taking account of the intervening relaxation of the sanctions regime. If the
initial impoundment was lawful (under Article 8 of Regulation (EEC) no. 990/93 as confirmed by the ECJ),
by definition, the partial relaxation of the sanctions regime in October 1994 did not apply to the applicant
company's aircraft as it had already been lawfully impounded. The terms of Regulation (EC) no. 2472/94
were as mandatory and clear as those of Regulation (EEC) no. 990/93. It was, indeed, for this reason that a
second reference to the ECJ raising Regulation (EC) no. 2472/94 would have been possible but pointless.
111. As to the equivalence of the European Community human rights protection, the Government
pointed to, inter alia, Article 6 of the Treaty on European Union, the judicial remedies offered by the ECJ
and the national courts, the reliance on Convention provisions and jurisprudence by the ECJ and the
declarations of certain Community institutions. Moreover, the applicant company had had the opportunity,
unlike in Matthews, fully to ventilate its claim that its fundamental rights had been breached and the
decision of the ECJ had been based on a consideration of its property rights. As to the United Nations, the
Government pointed to Articles 1 § 3 and 55 of the United Nations Charter, together with the Universal
Declaration of Human Rights of 1948 and the International Covenants on Civil and Political Rights and on
Economic and Social and Cultural Rights of 1966.
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2. Article 1 of Protocol No. 1
112. The Government's primary argument was that Ireland's compliance with its international obligations
constituted in itself sufficient justification for any interference with the applicant company's property rights.
113. In the alternative, the impounding of the aircraft amounted to a lawful and proportionate control of
use of the applicant company's possessions in the public interest (see AGOSI v. the United Kingdom,
judgment of 24 October 1986, Series A no. 108, pp. 17-18, § 51, and Air Canada v. the United Kingdom,
judgment of 5 May 1995, Series A no. 316-A, p. 16, § 34). The margin of appreciation was broad, given the
strength of the two public-interest objectives pursued: the principles of public international law, including
pacta sunt servanda, pursuant to which the State discharged clear mandatory international obligations
following the decisions of the relevant United Nations and European Community bodies (the Sanctions
Committee and the ECJ), and participation in an international effort to end a conflict.
114. The Government relied on their submissions in the context of Article 1 of the Convention in order
to argue that Article 1 of Protocol No. 1 did not require compensation or account to have been taken of the
relaxation of the sanctions regime in October 1994. They also made detailed submissions challenging the
applicant company's bona fides, although they maintained that its innocence would not have rendered the
impoundment inconsistent with Article 1 of Protocol No. 1. Finally, they replied to the applicant company's
detailed allegations concerning the position of TEAM and, in particular, explained that proceedings had not
been issued against TEAM because that would have amounted to applying retrospectively the criminal
liability for which Statutory Instrument no. 144 of 1993 had provided.
B. The applicant company
1. Article 1 of the Convention
115. The applicant company considered that the terms of Regulation (EEC) no. 990/93 and the
preliminary reference procedure admitted of State discretion for which Ireland was responsible under the
Convention.
It agreed that if the substance of its grievance had resulted solely from Ireland's international obligations,
this Court would have had no competence. In M. & Co. (and other cases relied on by the Government), the
complaint had been directed against acts of international organisations over the elaboration of which the
member State had no influence and in the execution of which the State had no discretion. Since the
applicant company was not challenging the provisions of Regulation (EEC) no. 990/93 or the sanctions
regime per se, the “equivalent protection” principle of M. & Co. was not relevant. On the contrary, the Irish
State had been intimately involved in the adoption and application of Regulation (EEC) no. 990/93 and had,
at all material times, a real and reviewable discretion as to the means by which the result required by that
regulation could be achieved.
116. In particular, the applicant company considered that the State had impounded the aircraft as a
preventive measure without a clear United Nations or European Community obligation to do so, and that it
had not been obliged to appeal from the High Court judgment of June 1994. The Supreme Court was not
required to refer a question to the ECJ (see CILFIT, cited above, and this Court's decision in Moosbrugger
v. Austria (dec.), no. 44861/98, 25 January 2000). Subsequently, in referring the question it did to the ECJ,
and since, under the terms of Article 177 (now Article 234), the ECJ could only reply to the interpretative
(or validity) question raised, the Supreme Court had effectively chosen to exclude certain matters from the
examination of the ECJ. Moreover, given the terms of Article 234 (now Article 307), the Supreme Court
should have implemented the ECJ ruling in a manner compatible with the Convention, whereas it had
simply “rubber-stamped” that ruling: it should have considered, and made a further reference to the ECJ if
necessary, certain additional matters prior to implementing the ruling of the ECJ. The matters thereby not
considered by the Supreme Court and not put before the ECJ concerned, inter alia, whether impoundment
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considered by the Supreme Court and not put before the ECJ concerned, inter alia, whether impoundment
expenses should be charged, whether compensation should be paid, and the effect of Regulation (EC) no.
2472/94 and the relaxation of the sanctions regime (see paragraphs 67-71 above). The applicant company
noted that certain relevant matters were raised in an affidavit filed on its behalf in the Supreme Court
following the ECJ ruling (see paragraph 57 above) but that the Supreme Court ignored those points.
117. The applicant company considered its position to be consistent with Convention case-law. More
generally, while the Convention did not exclude the transfer of competences to international organisations,
the State had to continue to secure Convention rights (see T.I. v. the United Kingdom (dec.), no. 43844/98,
ECHR 2000-III, and M. & Co., cited above). The Convention institutions had on numerous occasions
examined the compatibility with the Convention of the discretion exercised by a State in applying
Community law (see, inter alia, Van de Hurk v. the Netherlands, judgment of 19 April 1994, Series A no.
288; Procola v. Luxembourg, judgment of 28 September 1995, Series A no. 326; Cantoni and Hornsby, both
cited above; Pafitis and Others v. Greece, judgment of 26 February 1998, Reports 1998-I; Matthews, cited
above; S.A. Dangeville v. France, no. 36677/97, ECHR 2002-III; and Société Colas Est and Others v.
France, no. 37971/97, ECHR 2002-III). The case-law of the ECJ itself supported the applicant company's
position (see Kondova, cited above, § 90), that case being the first in which, according to the applicant
company, the ECJ recognised that it could not claim to be the final arbiter of questions of human rights as
member States remained answerable to this Court. The applicant company also relied on Pellegrini v. Italy
(no. 30882/96, ECHR 2001-VIII), where the Court found a violation of Article 6 because the Italian courts
did not satisfy themselves as to the fairness of proceedings before the ecclesiastical courts of the Rome
Vicariate before enforcing a decision of those tribunals.
If the Court were to follow the Government's reliance on M. & Co., Waite and Kennedy and Beer and
Regan, then any member State of the European Community could, according to the applicant company,
escape its Convention responsibility once its courts had referred a question to the ECJ and implemented its
ruling. The percentage of domestic law sourced in the European Community is significant and growing and
the matters now covered by Community law are increasingly broad and sensitive: to accept that all State acts
implementing a Community obligation fall outside its Convention responsibility would create an
unacceptable lacuna of human rights protection in Europe.
118. In any event, the applicant company argued that the European Community did not offer “equivalent
protection”. The limited role of the ECJ under Article 177 (now Article 234) has been outlined above: there
was no inherent jurisdiction in the ECJ to consider whether matters such as the absence of compensation
and discriminatory treatment of the applicant company amounted to a breach of its property rights.
Proceedings against a member State for an act or omission allegedly in violation of Community law could
only be initiated before the ECJ by the European Commission or another member State; individuals had to
bring proceedings in the national courts. A party to such domestic proceedings had no right to make an
Article 177 (now Article 234) reference, that being a matter for the domestic court. As indicated in Kondova,
cited above, if a Community provision was considered to infringe the Convention, the national courts and
this Court, rather than the ECJ, would be the final arbiters.
119. For these reasons, the applicant company maintained that the exercise of discretion by the Irish
authorities as described above regarding the impoundment of its aircraft should be reviewed by this Court
for its compatibility with the Convention.
2. Article 1 of Protocol No. 1
120. The applicant company maintained that the interference with its possessions (the impoundment)
amounted to a deprivation which could not be described as “temporary” given its impact. It was also
unlawful, since the Government had not produced any documentary evidence of the legal basis for the
interference and since implementing Statutory Instrument no. 144 of 1993, indicating which authority was
competent to impound, was not adopted until after the impoundment.
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competent to impound, was not adopted until after the impoundment.
121. Moreover, such an interference was unjustified because it was not in accordance with the “general
principles of international law” within the meaning of Article 1 of Protocol No. 1 and because it left an
innocent party to bear an individual and excessive burden, as the Government had failed to strike a fair
balance between the general interest (the international community's interest in putting an end to a war and
the associated significant human rights violations and breaches of humanitarian law) and the individual
damage (the significant economic loss of an innocent party).
In particular, the applicant company considered that certain factors distinguished its case from AGOSI
and Air Canada (both cited above). It also considered unjustifiable the situation which obtained after the
adoption of Regulation (EC) no. 2472/94 (its aircraft remained grounded while those of JAT could fly).
Compensation was an important element in the overall justification and its absence in a de facto deprivation
situation generally amounted to a disproportionate interference. This was especially so in the present case,
as the aim of the sanctions regime could have been achieved while paying it compensation. Finally, the
applicant company made a number of allegations concerning the State's relationship with TEAM and
argued, notably, that the Government's failure to prosecute TEAM (when, inter alia, the Sanctions
Committee had recognised that TEAM had broken the sanctions regime) highlighted the unjustifiable nature
of the applicant company's position, a foreign company innocent of any wrongdoing. In this latter respect,
the applicant company reaffirmed its bona fides, replied in detail to the Government's allegations of bad
faith and pointed out that all the courts before which the case was examined had confirmed its innocence.
C. The third-party submissions
1. The European Commission (“the Commission”)
(a) Article 1 of the Convention
122. The Commission considered that the application concerned in substance a State's responsibility for
Community acts: while a State retained some Convention responsibility after it had ceded powers to an
international organisation, that responsibility was fulfilled where there was proper provision in that
organisation's structure for effective protection of fundamental rights at a level at least “equivalent” to that
of the Convention. The Commission therefore supported the approach adopted in M. & Co. (cited above)
and urged the Court to adopt this solution pending accession to the Convention by the European Union.
Thereafter, any Convention responsibility, over and above the need to establish equivalent protection, would
only arise when the State exercised a discretion accorded to it by the international organisations.
123. The Commission considered this approach to be consistent with the recent case-law of this Court.
The reference in Matthews (cited above) to a State's Convention responsibility continuing after a transfer of
competence to the European Community and to the Convention responsibility of the United Kingdom was
consistent with the M. & Co. approach, given the differing impugned measures in issue in both cases. Waite
and Kennedy and Beer and Regan (both cited above) fully confirmed the Commission's position. Cantoni
was clearly distinguishable, as this Court had reviewed the discretion exercised by the French authorities to
create criminal sanctions in implementing a Community directive.
124. The reason for initially adopting this “equivalent protection” approach (facilitating State cooperation
through international organisations) was equally, if not more, pertinent today. It was an approach which was
especially important for the European Community given its distinctive features of supranationality and the
nature of Community law: to require a State to review for Convention compliance an act of the European
Community before implementing it (with the unilateral action and non-observance of Community law that
would potentially entail) would pose an incalculable threat to the very foundations of the Community, a
result not envisaged by the drafters of the Convention, supportive as they were of European cooperation and
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result not envisaged by the drafters of the Convention, supportive as they were of European cooperation and
integration. Moreover, subjecting individual Community acts to Convention scrutiny would amount to
making it a respondent in Convention proceedings without any of the procedural rights and safeguards of a
Contracting State to the Convention. In short, the M. & Co. approach allowed the Convention to be applied
in a manner which took account of the needs and realities of international relations and the unique features
of the Community system.
125. In the opinion of the Commission, the respondent State had no discretion under Community law.
When a case involved an Article 177 (now Article 234) reference, this Court should distinguish between the
respective roles of the national courts and the ECJ, so that if the impugned act was a direct result of the
ECJ's ruling this Court should refrain from scrutinising it.
In the Commission's view, Ireland was obliged (especially given the opinion of the Sanctions Committee)
on account of its duty of loyal cooperation (Article 5, now Article 10, of the EC Treaty) to appeal the
judgment of Mr Justice Murphy of the High Court to the Supreme Court in order to ensure effective
implementation of Regulation (EEC) no. 990/93. The Supreme Court, as the last-instance court, was obliged
under Article 177 (now Article 234) of the EC Treaty to make a reference to the ECJ since there was no
doubt that the government's appeal before it raised a serious and central question of interpretation of
Community law. The Supreme Court asked the ECJ whether Article 8 of Regulation (EEC) no. 990/93
applied to an aircraft such as that leased by the applicant company and the ECJ ruled that it did, having
reviewed the fundamental rights aspects of the case so that, although the ECJ could not examine the
particular facts of cases, the impoundment in question was conclusively assessed and decided by the ECJ.
The ruling of the ECJ was binding on the Supreme Court.
In those circumstances, the Supreme Court had no discretion to exercise and, consequently, its
implementation of the ECJ ruling could not be reviewed by this Court.
126. Moreover, the Commission considered that “equivalent protection” was to be found in Community
law and structures. It outlined the developing recognition of the Convention provisions as a significant
source of general principles of Community law, which governed the activities of the Community institutions
and States and was implemented by the Community's judicial machinery, and noted the relevant Treaty
amendments reinforcing these case-law developments.
127. Finally, the Commission considered that the ruling in Kondova (cited above) clearly supported its
position that discretionary acts of the State remained fully subject to the Convention. The applicant
company's reliance on Article 234 (now Article 307) of the EC Treaty was erroneous and the conclusions
drawn therefrom inappropriate: in expressing international law principles such as pacta sunt servanda, the
said Article simply confirmed the starting-point of the relevant Convention analysis, namely, that a State
cannot avoid its Convention responsibilities by ceding power to an international organisation.
(b) Article 1 of Protocol No. 1
128. The Commission considered it indisputable that Regulation (EEC) no. 990/93 constituted the legal
basis for the impoundment. It rejected the applicant company's suggestion that the impoundment was
unlawful pending national secondary legislation and agreed with the Government that the implementing
statutory instrument contained administrative competence and procedural provisions which had no bearing
on the directly applicable nature of Regulation (EEC) no. 990/93. For the reasons set out in the Advocate
General's opinion and the ECJ's ruling, the Commission argued that the impoundment until October 1994
was proportionate and it did not find persuasive the applicant company's argument that it was unjustified
thereafter.
2. The Italian Government
129. As regards Article 1 of the Convention, the Italian Government considered that the case amounted
to a challenge to the provisions of the relevant UNSC resolution and European Community regulation and
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to a challenge to the provisions of the relevant UNSC resolution and European Community regulation and
fell, as such, outside the Court's jurisdiction. The Irish State was obliged to implement these instruments, it
was obliged to address the relevant organs (the Sanctions Committee and the ECJ) and to comply with the
rulings obtained: this warranted a conclusion of incompatibility ratione personae. As to the original handing
over of sovereign power to the United Nations and European Community, the Italian Government also relied
on M. & Co., arguing that both the United Nations and the European Community provided “equivalent
protection”: this warranted a conclusion of incompatibility ratione materiae or personae. Finally, any
imposition of an obligation on a State to review its United Nations and European Community obligations
for Convention compatibility would undermine the legal systems of international organisations and,
consequently, the international response to serious international crises.
130. On the merits of Article 1 of Protocol No. 1, they underlined the importance of the public-interest
objective pursued by the impoundment.
3. The United Kingdom Government
131. The United Kingdom Government considered that, since the complaint was against the European
Community, it was incompatible with the Convention provisions. To make one member State responsible for
Community acts would not only be contrary to Convention jurisprudence, but would also subvert
fundamental principles of international law (including the separate legal personality of international
organisations) and be inconsistent with the obligations of member States of the European Community. They
relied on M. & Co., cited above, noting that human rights safeguards within the Community legal order had
been further strengthened since the adoption of the decision in that case.
132. On the merits of the complaint under Article 1 of Protocol No. 1, the United Kingdom Government
underlined the importance of the public interest at stake, considered that the margin of appreciation was
therefore wide, and argued that, even if the applicant company was an innocent party, this would not render
the interference with its property rights disproportionate (see AGOSI and Air Canada, both cited above).
4. The Institut de formation en droits de l'homme du barreau de Paris (“the Institut”)
133. The Institut considered the case compatible with the provisions of the Convention. However, it was
equally of the view that this would not prevent member States from complying with their Community
obligations or mean that the Court would have jurisdiction to examine Community provisions in the light of
the Convention. The application was compatible ratione personae, since the object of the case was not to
challenge United Nations or European Community provisions but rather Ireland's implementation of them. It
was compatible ratione materiae because Article 1 of the Convention did not exclude a particular type of
measure or any part of a member State's jurisdiction from scrutiny. The Institut pointed, by way of
illustration, to the matters assessed by the Court in a number of cases including those of Cantoni, Matthews,
and Waite and Kennedy (all cited above). Since neither the United Nations nor the European Community
provided equivalent human rights protection (especially when seen from the point of view of individual
access to that protection and the limitations of the preliminary reference procedure), the complaint had to be
found compatible with the provisions of the Convention.
134. As to the merits of the complaint under Article 1 of Protocol No. 1, the Institut considered the initial
impoundment of the aircraft to be entirely justified but left open the justifiability of the retention of the
aircraft after October 1994.
III. THE COURT'S ASSESSMENT
A. Article 1 of the Convention
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135. The parties and third parties made substantial submissions under Article 1 of the Convention about
the Irish State's Convention responsibility for the impoundment given its Community obligations. This
Article provides:
“The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section I of
[the] Convention.”
136. The text of Article 1 requires States Parties to answer for any infringement of the rights and
freedoms protected by the Convention committed against individuals placed under their “jurisdiction” (see
Ilaşcu and Others v. Moldova and Russia [GC], no. 48787/99, § 311, ECHR 2004-VII). The notion of
“jurisdiction” reflects the term's meaning in public international law (see Gentilhomme and Others v.
France, nos. 48205/99, 48207/99, and 48209/99, § 20, 14 May 2002; Banković and Others v. Belgium and
Others (dec.) [GC], no. 52207/99, §§ 59-61, ECHR 2001-XII; and Assanidze v. Georgia, no. 71503/01, §
137, ECHR 2004-II), so that a State's jurisdictional competence is considered primarily territorial (see
Banković and Others, § 59), a jurisdiction presumed to be exercised throughout the State's territory (see
Ilaşcu and Others, § 312).
137. In the present case it is not disputed that the act about which the applicant company complained, the
detention of the aircraft leased by it for a period of time, was implemented by the authorities of the
respondent State on its territory following a decision made by the Irish Minister for Transport. In such
circumstances the applicant company, as the addressee of the impugned act, fell within the “jurisdiction” of
the Irish State, with the consequence that its complaint about that act is compatible ratione loci, personae
and materiae with the provisions of the Convention.
138. The Court is further of the view that the submissions referred to in paragraph 135 above concerning
the scope of the responsibility of the respondent State go to the merits of the complaint under Article 1 of
Protocol No. 1 and are therefore examined below.
B. Article 1 of Protocol No. 1
139. Article 1 of Protocol No. 1 reads as follows:
“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his
possessions except in the public interest and subject to the conditions provided for by law and by the general principles of
international law.
The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary
to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or
penalties.”
140. It was not disputed that there was an “interference” (the detention of the aircraft) with the applicant
company's “possessions” (the benefit of its lease of the aircraft) and the Court does not see any reason to
conclude otherwise (see, for example, Stretch v. the United Kingdom, no. 44277/98, §§ 32-35, 24 June
2003).
1. The applicable rule
141. The parties did not, however, agree on whether that interference amounted to a deprivation of
property (first paragraph of Article 1 of Protocol No. 1) or a control of the use of property (second
paragraph). The Court reiterates that, in guaranteeing the right of property, this Article comprises “three
distinct rules”: the first rule, set out in the first sentence of the first paragraph, is of a general nature and
enunciates the principle of the peaceful enjoyment of property; the second rule, contained in the second
sentence of the first paragraph, covers deprivation of possessions and subjects it to certain conditions; the
third rule, stated in the second paragraph, recognises that the Contracting States are entitled, amongst other
things, to control the use of property in accordance with the general interest. The three rules are not
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things, to control the use of property in accordance with the general interest. The three rules are not
“distinct” in the sense of being unconnected: the second and third rules are concerned with particular
instances of interference with the right to peaceful enjoyment of property and should therefore be construed
in the light of the general principle enunciated in the first rule (see AGOSI, cited above, p. 17, § 48).
142. The Court considers that the sanctions regime amounted to a control of the use of property
considered to benefit the former FRY and that the impugned detention of the aircraft was a measure to
enforce that regime. While the applicant company lost the benefit of approximately three years of a fouryear
lease, that loss formed a constituent element of the above-mentioned control on the use of property. It
is therefore the second paragraph of Article 1 of Protocol No. 1 which is applicable in the present case (see
AGOSI, cited above, pp. 17-18, §§ 50-51, and Gasus Dosier- und Fördertechnik GmbH v. the Netherlands,
judgment of 23 February 1995, Series A no. 306-B, pp. 47-48, § 59), the “general principles of international
law” within the particular meaning of the first paragraph of Article 1 of Protocol No. 1 (and relied on by the
applicant company) not therefore requiring separate examination (see Gasus Dosier- und Fördertechnik
GmbH, pp. 51-53, §§ 66-74).
2. The legal basis for the impugned interference
143. The parties strongly disagreed as to whether the impoundment was at all times based on legal
obligations on the Irish State flowing from Article 8 of Regulation (EEC) no. 990/93.
For the purposes of its examination of this question, the Court reiterates that it is primarily for the
national authorities, notably the courts, to interpret and apply domestic law even when that law refers to
international law or agreements. Equally, the Community's judicial organs are better placed to interpret and
apply Community law. In each instance, the Court's role is confined to ascertaining whether the effects of
such adjudication are compatible with the Convention (see, mutatis mutandis, Waite and Kennedy, cited
above, § 54, and Streletz, Kessler and Krenz v. Germany [GC], nos. 34044/96, 35532/97 and 44801/98, §
49, ECHR 2001-II).
144. While the applicant company alluded briefly to the Irish State's role in the Council of the European
Communities (see paragraph 115 above), the Court notes that its essential standpoint was that it was not
challenging the provisions of the regulation itself but rather their implementation.
145. Once adopted, Regulation (EEC) no. 990/93 was “generally applicable” and “binding in its entirety”
(pursuant to Article 189, now Article 249, of the EC Treaty), so that it applied to all member States, none of
which could lawfully depart from any of its provisions. In addition, its “direct applicability” was not, and in
the Court's view could not be, disputed. The regulation became part of domestic law with effect from
28 April 1993 when it was published in the Official Journal, prior to the date of the impoundment and
without the need for implementing legislation (see, in general, paragraphs 65 and 83 above).
The later adoption of Statutory Instrument no. 144 of 1993 did not, as suggested by the applicant
company, have any bearing on the lawfulness of the impoundment; it simply regulated certain administrative
matters (the identity of the competent authority and the sanction to be imposed for a breach of the
regulation) as foreseen by Articles 9 and 10 of the EEC regulation. While the applicant company queried
which body was competent for the purposes of the regulation (see paragraph 120 above), the Court considers
it entirely foreseeable that the Minister for Transport would implement the impoundment powers contained
in Article 8 of Regulation (EEC) no. 990/93.
It is true that Regulation (EEC) no. 990/93 originated in a UNSC resolution adopted under Chapter VII of
the United Nations Charter (a point developed in some detail by the Government and certain third parties).
While the resolution was pertinent to the interpretation of the regulation (see the opinion of the Advocate
General and the ruling of the ECJ – paragraphs 45-50 and 52-55 above), the resolution did not form part of
Irish domestic law (Mr Justice Murphy – paragraph 35 above) and could not therefore have constituted a
legal basis for the impoundment of the aircraft by the Minister for Transport.
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Accordingly, the Irish authorities rightly considered themselves obliged to impound any departing aircraft
to which they considered Article 8 of Regulation (EEC) no. 990/93 applied. Their decision that it did so
apply was later confirmed, in particular, by the ECJ (see paragraphs 54-55 above).
146. The Court finds persuasive the European Commission's submission that the State's duty of loyal
cooperation (Article 5, now Article 10, of the EC Treaty) required it to appeal the High Court judgment of
June 1994 to the Supreme Court in order to clarify the interpretation of Regulation (EEC) no. 990/93. This
was the first time that regulation had been applied, and the High Court's interpretation differed from that of
the Sanctions Committee, a body appointed by the United Nations to interpret the UNSC resolution
implemented by the regulation in question.
147. The Court would also agree with the Government and the European Commission that the Supreme
Court had no real discretion to exercise, either before or after its preliminary reference to the ECJ, for the
reasons set out below.
In the first place, there being no domestic judicial remedy against its decisions, the Supreme Court had to
make the preliminary reference it did having regard to the terms of Article 177 (now Article 234) of the EC
Treaty and the judgment of the ECJ in CILFIT (see paragraph 98 above): the answer to the interpretative
question put to the ECJ was not obvious (the conclusions of the Sanctions Committee and the Minister for
Transport conflicted with those of the High Court); the question was of central importance to the case (see
the High Court's description of the essential question in the case and its consequential judgment from which
the Minister appealed to the Supreme Court – paragraphs 35-36 above); and there was no previous ruling by
the ECJ on the point. This finding is not affected by the observation in the Court's decision in Moosbrugger
(cited and relied on by the applicant company – see paragraph 116 above) that an individual does not per se
have a right to a referral.
Secondly, the ECJ ruling was binding on the Supreme Court (see paragraph 99 above).
Thirdly, the ruling of the ECJ effectively determined the domestic proceedings in the present case. Given
the Supreme Court's question and the answer of the ECJ, the only conclusion open to the former was that
Regulation (EEC) no. 990/93 applied to the applicant company's aircraft. It is moreover erroneous to
suggest, as the applicant company did, that the Supreme Court could have made certain orders additional to
the ECJ ruling (including a second “clarifying” reference to the ECJ) as regards impoundment expenses,
compensation and the intervening relaxation of the sanctions regime. The applicant company's motion and
affidavit of October 1996 filed with the Supreme Court did not develop these matters in any detail or
request that court to make such supplemental orders. In any event, the applicant company was not required
to discharge the impoundment expenses.
The fact that Regulation (EEC) no. 990/93 did not admit of an award of compensation was implicit in the
findings of the Advocate General and the ECJ (each considered the application of the regulation to be
justified despite the hardship it implied) and in the expenses provisions of the second sentence of Article 8
of the regulation. Consequently, the notions of uniform application and supremacy of Community law (see
paragraphs 92 and 96 above) prevented the Supreme Court from making such an award. As noted in
paragraph 105 above, Regulation (EC) no. 2472/94 relaxing the sanctions regime as implemented in the
European Community from October 1994 expressly excluded from its ambit aircraft already lawfully
impounded, and neither the ECJ nor the Supreme Court referred to this point in their respective ruling (of
July 1996) and judgment (of November 1996).
148. For these reasons, the Court finds that the impugned interference was not the result of an exercise of
discretion by the Irish authorities, either under Community or Irish law, but rather amounted to compliance
by the Irish State with its legal obligations flowing from Community law and, in particular, Article 8 of
Regulation (EEC) no. 990/93.
3. Whether the impoundment was justified
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(a) The general approach to be adopted
149. Since the second paragraph of Article 1 of Protocol No. 1 is to be construed in the light of the
general principle enunciated in the opening sentence of that Article, there must exist a reasonable
relationship of proportionality between the means employed and the aim sought to be realised: the Court
must determine whether a fair balance has been struck between the demands of the general interest in this
respect and the interest of the individual company concerned. In so determining, the Court recognises that
the State enjoys a wide margin of appreciation with regard to the means to be employed and to the question
of whether the consequences are justified in the general interest for the purpose of achieving the objective
pursued (see AGOSI, cited above, p. 18, § 52).
150. The Court considers it evident from its finding in paragraphs 145 to 148 above that the general
interest pursued by the impugned measure was compliance with legal obligations flowing from the Irish
State's membership of the European Community.
It is, moreover, a legitimate interest of considerable weight. The Convention has to be interpreted in the
light of any relevant rules and principles of international law applicable in relations between the Contracting
Parties (Article 31 § 3 (c) of the Vienna Convention on the Law of Treaties, and Al-Adsani v. the United
Kingdom [GC], no. 35763/97, § 55, ECHR 2001-XI), which principles include that of pacta sunt servanda.
The Court has also long recognised the growing importance of international cooperation and of the
consequent need to secure the proper functioning of international organisations (see Waite and Kennedy, §§
63 and 72, and Al-Adsani, § 54, both cited above; see also Article 234 (now Article 307) of the EC Treaty).
Such considerations are critical for a supranational organisation such as the European Community25. This
Court has accordingly accepted that compliance with Community law by a Contracting Party constitutes a
legitimate general-interest objective within the meaning of Article 1 of Protocol No. 1 (see, mutatis
mutandis, S.A. Dangeville, cited above, §§ 47 and 55).
151. The question is therefore whether, and if so to what extent, that important general interest of
compliance with Community obligations can justify the impugned interference by the Irish State with the
applicant company's property rights.
152. The Convention does not, on the one hand, prohibit Contracting Parties from transferring sovereign
power to an international (including a supranational) organisation in order to pursue cooperation in certain
fields of activity (see M. & Co., p. 144, and Matthews, § 32, both cited above). Moreover, even as the holder
of such transferred sovereign power, that organisation is not itself held responsible under the Convention for
proceedings before, or decisions of, its organs as long as it is not a Contracting Party (see Confédération
française démocratique du travail v. European Communities, no. 8030/77, Commission decision of 10 July
1978, DR 13, p. 231; Dufay v. European Communities, no. 13539/88, Commission decision of 19 January
1989, unreported; and M. & Co., p. 144, and Matthews, § 32, both cited above).
153. On the other hand, it has also been accepted that a Contracting Party is responsible under Article 1
of the Convention for all acts and omissions of its organs regardless of whether the act or omission in
question was a consequence of domestic law or of the necessity to comply with international legal
obligations. Article 1 makes no distinction as to the type of rule or measure concerned and does not exclude
any part of a Contracting Party's “jurisdiction” from scrutiny under the Convention (see United Communist
Party of Turkey and Others v. Turkey, judgment of 30 January 1998, Reports 1998-I, pp. 17-18, § 29).
154. In reconciling both these positions and thereby establishing the extent to which a State's action can
be justified by its compliance with obligations flowing from its membership of an international organisation
to which it has transferred part of its sovereignty, the Court has recognised that absolving Contracting States
completely from their Convention responsibility in the areas covered by such a transfer would be
incompatible with the purpose and object of the Convention; the guarantees of the Convention could be
limited or excluded at will, thereby depriving it of its peremptory character and undermining the practical
and effective nature of its safeguards (see M. & Co., p. 145, and Waite and Kennedy, § 67, both cited
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and effective nature of its safeguards (see M. & Co., p. 145, and Waite and Kennedy, § 67, both cited
above). The State is considered to retain Convention liability in respect of treaty commitments subsequent to
the entry into force of the Convention (see mutatis mutandis, Matthews, cited above, §§ 29 and 32-34, and
Prince Hans-Adam II of Liechtenstein v. Germany [GC], no. 42527/98, § 47, ECHR 2001-VIII).
155. In the Court's view, State action taken in compliance with such legal obligations is justified as long
as the relevant organisation is considered to protect fundamental rights, as regards both the substantive
guarantees offered and the mechanisms controlling their observance, in a manner which can be considered
at least equivalent to that for which the Convention provides (see M. & Co., cited above, p. 145, an
approach with which the parties and the European Commission agreed). By “equivalent” the Court means
“comparable”; any requirement that the organisation's protection be “identical” could run counter to the
interest of international cooperation pursued (see paragraph 150 above). However, any such finding of
equivalence could not be final and would be susceptible to review in the light of any relevant change in
fundamental rights protection.
156. If such equivalent protection is considered to be provided by the organisation, the presumption will
be that a State has not departed from the requirements of the Convention when it does no more than
implement legal obligations flowing from its membership of the organisation.
However, any such presumption can be rebutted if, in the circumstances of a particular case, it is
considered that the protection of Convention rights was manifestly deficient. In such cases, the interest of
international cooperation would be outweighed by the Convention's role as a “constitutional instrument of
European public order” in the field of human rights (see Loizidou v. Turkey (preliminary objections),
judgment of 23 March 1995, Series A no. 310, pp. 27-28, § 75).
157. It remains the case that a State would be fully responsible under the Convention for all acts falling
outside its strict international legal obligations. The numerous Convention cases cited by the applicant
company in paragraph 117 above confirm this. Each case (in particular, Cantoni, p. 1626, § 26) concerned a
review by this Court of the exercise of State discretion for which Community law provided. Pellegrini is
distinguishable: the State responsibility issue raised by the enforcement of a judgment not of a Contracting
Party to the Convention (see Drozd and Janousek v. France and Spain, judgment of 26 June 1992, Series A
no. 240, pp. 34-35, § 110) is not comparable to compliance with a legal obligation emanating from an
international organisation to which Contracting Parties have transferred part of their sovereignty. Matthews
can also be distinguished: the acts for which the United Kingdom was found responsible were “international
instruments which were freely entered into” by it (see paragraph 33 of that judgment). Kondova (see
paragraph 76 above), also relied on by the applicant company, is consistent with a State's Convention
responsibility for acts not required by international legal obligations.
158. Since the impugned measure constituted solely compliance by Ireland with its legal obligations
flowing from membership of the European Community (see paragraph 148 above), the Court will now
examine whether a presumption arises that Ireland complied with the requirements of the Convention in
fulfilling such obligations and whether any such presumption has been rebutted in the circumstances of the
present case.
(b) Whether there was a presumption of Convention compliance at the relevant time
159. The Court has described above (see paragraphs 73-81) the fundamental rights guarantees of the
European Community which apply to member States, Community institutions and natural and legal persons
(“individuals”).
While the founding treaties of the European Communities did not initially contain express provisions for
the protection of fundamental rights, the ECJ subsequently recognised that such rights were enshrined in the
general principles of Community law protected by it, and that the Convention had a “special significance”
as a source of such rights. Respect for fundamental rights has become “a condition of the legality of
Community acts” (see paragraphs 73-75 above, together with the opinion of the Advocate General in the
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Community acts” (see paragraphs 73-75 above, together with the opinion of the Advocate General in the
present case, paragraphs 45-50 above) and in carrying out this assessment the ECJ refers extensively to
Convention provisions and to this Court's jurisprudence. At the relevant time, these jurisprudential
developments had been reflected in certain treaty amendments (notably those aspects of the Single European
Act of 1986 and of the Treaty on European Union referred to in paragraphs 77-78 above).
This evolution has continued. The Treaty of Amsterdam of 1997 is referred to in paragraph 79 above.
Although not fully binding, the provisions of the Charter of Fundamental Rights of the European Union
were substantially inspired by those of the Convention, and the Charter recognises the Convention as
establishing the minimum human rights standards. Article I-9 of the later Treaty establishing a Constitution
for Europe (not in force) provides for the Charter to become primary law of the European Union and for the
Union to accede to the Convention (see paragraphs 80-81 above).
160. However, the effectiveness of such substantive guarantees of fundamental rights depends on the
mechanisms of control in place to ensure their observance.
161. The Court has referred (see paragraphs 86-90 above) to the jurisdiction of the ECJ in, inter alia,
annulment actions (Article 173, now Article 230, of the EC Treaty), in actions against Community
institutions for failure to perform Treaty obligations (Article 175, now Article 232), to hear related pleas of
illegality under Article 184 (now Article 241) and in cases against member States for failure to fulfil Treaty
obligations (Articles 169, 170 and 171, now Articles 226, 227 and 228).
162. It is true that access of individuals to the ECJ under these provisions is limited: they have no locus
standi under Articles 169 and 170; their right to initiate actions under Articles 173 and 175 is restricted as
is, consequently, their right under Article 184; and they have no right to bring an action against another
individual.
163. It nevertheless remains the case that actions initiated before the ECJ by the Community institutions
or a member State constitute important control of compliance with Community norms to the indirect benefit
of individuals. Individuals can also bring an action for damages before the ECJ in respect of the noncontractual
liability of the institutions (see paragraph 88 above).
164. Moreover, it is essentially through the national courts that the Community system provides a
remedy to individuals against a member State or another individual for a breach of Community law (see
paragraphs 85 and 91 above). Certain EC Treaty provisions envisaged a complementary role for the national
courts in the Community control mechanisms from the outset, notably Article 189 (the notion of direct
applicability, now Article 249) and Article 177 (the preliminary reference procedure, now Article 234). It
was the development by the ECJ of important notions such as the supremacy of Community law, direct
effect, indirect effect and State liability (see paragraphs 92-95 above) which greatly enlarged the role of the
domestic courts in the enforcement of Community law and its fundamental rights guarantees.
The ECJ maintains its control on the application by national courts of Community law, including its
fundamental rights guarantees, through the procedure for which Article 177 of the EC Treaty provides in the
manner described in paragraphs 96 to 99 above. While the ECJ's role is limited to replying to the
interpretative or validity question referred by the domestic court, the reply will often be determinative of the
domestic proceedings (as, indeed, it was in the present case – see paragraph 147 above) and detailed
guidelines on the timing and content of a preliminary reference have been laid down by the EC Treaty
provision and developed by the ECJ in its case-law. The parties to the domestic proceedings have the right
to put their case to the ECJ during the Article 177 process. It is further noted that national courts operate in
legal systems into which the Convention has been incorporated, albeit to differing degrees.
165. In such circumstances, the Court finds that the protection of fundamental rights by Community law
can be considered to be, and to have been at the relevant time, “equivalent” (within the meaning of
paragraph 155 above) to that of the Convention system. Consequently, the presumption arises that Ireland
did not depart from the requirements of the Convention when it implemented legal obligations flowing from
its membership of the European Community (see paragraph 156 above).
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its membership of the European Community (see paragraph 156 above).
(c) Whether the presumption in question has been rebutted in the present case
166. The Court has had regard to the nature of the interference, to the general interest pursued by the
impoundment and by the sanctions regime and to the ruling of the ECJ (in the light of the opinion of the
Advocate General), a ruling with which the Supreme Court was obliged to and did comply. It considers it
clear that there was no dysfunction of the mechanisms of control of the observance of Convention rights.
In the Court's view, therefore, it cannot be said that the protection of the applicant company's Convention
rights was manifestly deficient, with the consequence that the relevant presumption of Convention
compliance by the respondent State has not been rebutted.
4. Conclusion under Article 1 of Protocol No. 1
167. It follows that the impoundment of the aircraft did not give rise to a violation of Article 1 of
Protocol No. 1.
FOR THESE REASONS, THE COURT UNANIMOUSLY
1. Dismisses the preliminary objections;
2. Holds that there has been no violation of Article 1 of Protocol No. 1.
Done in English and in French, and delivered at a public hearing in the Human Rights Building,
Strasbourg, on 30 June 2005.
Christos ROZAKIS
President
Paul MAHONEY
Registrar
In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the following
separate opinions are annexed to this judgment:
(a) joint concurring opinion of Mr Rozakis, Mrs Tulkens, Mr Traja, Mrs Botoucharova, Mr Zagrebelsky
and Mr Garlicki;
(b) concurring opinion of Mr Ress.
C.L.R.
P.J.M.
JOINT CONCURRING OPINION OF JUDGES ROZAKIS, TULKENS, TRAJA,
BOTOUCHAROVA, ZAGREBELSKY AND GARLICKI
(Translation)
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While we are in agreement with the operative provisions of the judgment, namely that there has been no
violation of Article 1 of Protocol No. 1 in the instant case, we do not agree with all the steps in the
reasoning followed by the majority, nor all aspects of its analysis. Accordingly, we wish to clarify certain
points we consider important.
1. In examining Article 1 of the Convention, the judgment rightly points out, on the basis of the Court's
case-law, that it follows from the wording of that provision that the States Parties must answer for any
infringement of the rights and freedoms protected by the Convention committed against persons placed
under their “jurisdiction” (see paragraph 136). It concludes that the applicant company's complaint is
compatible not only ratione loci (which was not contested) and ratione personae (which was not in issue)
but also ratione materiae with the provisions of the Convention (see paragraph 137). Thus, the Court clearly
acknowledges its jurisdiction to review the compatibility with the Convention of a domestic measure
adopted on the basis of a Community regulation and, in so doing, departs from the decision of the European
Commission of Human Rights of 9 February 1990 in M. & Co. v. the Federal Republic of Germany
(no. 13258/87, Decisions and Reports 64, p. 138).
It has now been accepted and confirmed that the principle that Article 1 of the Convention makes “no
distinction as to the type of rule or measure concerned” and does “not exclude any part of the member
States' 'jurisdiction' from scrutiny under the Convention” (see United Communist Party of Turkey and
Others v. Turkey, judgment of 30 January 1998, Reports of Judgments and Decisions 1998-I, pp. 17-18, §
29) also applies to Community law. It follows that the member States are responsible, under Article 1 of the
Convention, for all acts and omissions of their organs, whether these arise from domestic law or from the
need to fulfil international legal obligations.
2. In examining the alleged violation of Article 1 of Protocol No. 1, and having determined the
applicable rule and the legal basis for the impugned interference, the Court's task was to examine whether
there was a reasonable relationship of proportionality between the means employed and the aim sought to be
achieved and, consequently, to determine if a fair balance had been struck between the demands of the
general interest
and the interest of the applicant company. By its nature, such a review of proportionality can only be carried
out in concreto.
In the instant case, the judgment adopts a general approach based on the concept of presumption: “If such
[comparable] equivalent protection [of fundamental rights] is considered to be provided by the organisation,
the presumption will be that a State has not departed from the requirements of the Convention when it does
no more than implement legal obligations flowing from its membership of the organisation. However, any
such presumption can be rebutted if, in the circumstances of a particular case, it is considered that the
protection of Convention rights was manifestly deficient” (see paragraph 156).
3. Even supposing that such “equivalent protection” exists – a finding which, moreover, as the judgment
correctly observes, could not be final and would be susceptible to review in the light of any relevant change
in fundamental rights protection (see paragraph 155) – we are not entirely convinced by the approach that
was adopted in order to establish that such protection existed in the instant case.
The majority engages in a general abstract review of the Community system (see paragraphs 159-64 of
the judgment) – a review to which all the Contracting Parties to the European Convention on Human Rights
could in a way lay claim – and concludes that the protection of fundamental rights by Community law can
be considered to be “equivalent” to that of the Convention system, thereby enabling the concept of
presumption to be brought into play (see paragraph 165).
Needless to say, we do not wish to question that finding. We are fully convinced of the growing role of
fundamental rights and their far-reaching integration into the Community system, and of the major changes
in the case-law taking place in this field. However, it remains the case that the Union has not yet acceded to
the European Convention on Human Rights and that full protection does not yet exist at European level.
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the European Convention on Human Rights and that full protection does not yet exist at European level.
Moreover, as the judgment rightly emphasises, “the effectiveness of such substantive guarantees of
fundamental rights depends on the mechanisms of control in place to ensure observance of such rights” (see
paragraph 160). From this procedural perspective, the judgment minimises or ignores certain factors which
establish a genuine difference and make it unreasonable to conclude that “equivalent protection” exists in
every case.
On the one hand, we have a reference for a preliminary ruling to the European Court of Justice, made not
by the applicant company but by the Supreme Court of Ireland. Such a reference does not constitute an
appeal but a request for interpretation (Article 234 of the EC Treaty). Although the interpretation of
Community law given by the European Court of Justice is binding on the court which made the referral, the
latter retains full discretion in deciding how to apply that ruling in concreto when resolving the dispute
before it. Equally, in its general review of “equivalent protection”, the judgment should probably have
explored further those situations which, admittedly, do not concern the instant case but in which the
European Court of Justice allows national courts a certain discretion in implementing its judgment and
which could become the subject matter of an application to the European Court of Human Rights. However,
it is clear from paragraph 157 of the judgment and the reference to Cantoni v. France (judgment of
15 November 1996, Reports 1996-V) that the use of discretion in implementing a preliminary ruling by the
European Court of Justice is not covered by the presumption of “equivalent protection”.
On the other hand, as the judgment itself acknowledges, individuals' access to the Community court is
“limited” (see paragraph 162). Yet, as the Court reiterated in Mamatkulov and Askarov v. Turkey ([GC],
nos. 46827/99 and 46951/99, ECHR 2005-I), the right of individual application “is one of the keystones in
the machinery for the enforcement of the rights and freedoms set forth in the Convention” (see paragraph
122 of that judgment). Admittedly, judicial protection under Community law is based on a plurality of
appeals, among which the reference to the Court of Justice for a preliminary ruling has an important role.
However, it remains the case that, despite its value, a reference for a preliminary ruling entails an internal, a
priori review. It is not of the same nature and does not replace the external, a posteriori supervision of the
European Court of Human Rights, carried out following an individual application.
The right of individual application is one of the basic obligations assumed by the States on ratifying the
Convention. It is therefore difficult to accept that they should have been able to reduce the effectiveness of
this right for persons within their jurisdiction on the ground that they have transferred certain powers to the
European Communities. For the Court to leave to the Community's judicial system the task of ensuring
“equivalent protection”, without retaining a means of verifying on a case-by-case basis that that protection is
indeed “equivalent”, would be tantamount to consenting tacitly to substitution, in the field of Community
law, of Convention standards by a Community standard which might be inspired by Convention standards
but whose equivalence with the latter would no longer be subject to authorised scrutiny.
4. Admittedly, the judgment states that such in concreto review would remain possible, since the
presumption could be rebutted if, in the circumstances of a particular case, the Court considered that “the
protection of Convention rights was manifestly deficient” (see paragraph 156).
In spite of its relatively undefined nature, the criterion “manifestly deficient” appears to establish a
relatively low threshold, which is in marked contrast to the supervision generally carried out under the
European Convention on Human Rights. Since the Convention establishes a minimum level of protection
(Article 53), any equivalence between it and the Community's protection can only ever be in terms of the
means, not of the result. Moreover, it seems all the more difficult to accept that Community law could be
authorised, in the name of “equivalent protection”, to apply standards that are less stringent than those of the
European Convention on Human Rights when we consider that the latter were formally drawn on in the
Charter of Fundamental Rights of the European Union, itself an integral part of the Union's Treaty
establishing a Constitution for Europe. Although these texts have not (yet) come into force, Article II-
112(3) of the Treaty contains a rule whose moral weight would already appear to be binding on any future
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112(3) of the Treaty contains a rule whose moral weight would already appear to be binding on any future
legislative or judicial developments in European Union law: “In so far as this Charter contains rights which
correspond to rights guaranteed by the Convention for the Protection of Human Rights and Fundamental
Freedoms, the meaning and scope of those rights shall be the same as those laid down by the said
Convention.”
Thus, in order to avoid any danger of double standards, it is necessary to remain vigilant. If it were to
materialise, such a danger would in turn create different obligations for the Contracting Parties to the
European Convention on Human Rights, divided into those which had acceded to international conventions
and those which had not. In another context, that of reservations, the Court has raised the possibility of
inequality between Contracting States and reiterated that this would “run counter to the aim, as expressed in
the Preamble to the Convention, to achieve greater unity in the maintenance and further realisation of human
rights” (Loizidou v. Turkey (preliminary objections), judgment of 23 March 1995, Series A no. 310, p. 28, §
77).
CONCURRING OPINION OF JUDGE RESS
1. This judgment demonstrates how important it will be for the European Union to accede to the
European Convention of Human Rights in order to make the control mechanism of the Convention
complete, even if this judgment has left the so-called M. & Co. approach far behind (no. 13258/87,
Commission decision of 9 February 1990, Decisions and Reports 64). It has accepted the Court's jurisdiction
ratione loci, personae and materiae under Article 1 of the Convention, clearly departing from an approach
which would declare the European Communities immune, even indirectly, from any supervision by this
Court. On the examination of the merits of the complaint, the question is whether there exists a reasonable
relationship of proportionality between the interference with the applicant company's property, on the one
hand, and the general interest, on the other. On the basis of its case-law, the Court developed, in particular
in Waite and Kennedy v. Germany ([GC], no. 26083/94, ECHR 1999-I), a special ratio decidendi regarding
the extent of its scrutiny in cases concerning international and supranational organisations. I can agree with
the result in this case that there was no violation of Article 1 of Protocol No. 1 and that the interference with
the use of the applicant company's property – in the general interest of safeguarding the sanctions regime of
the United Nations and the European Community – did not go beyond the limits any trading company must
be prepared to accept in the light of that general interest. One could argue that to come to this conclusion
the whole concept of presumed Convention compliance by international organisations, and in particular by
the European Community, was unnecessary and even dangerous for the future protection of human rights in
the Contracting States when they transfer parts of their sovereign power to an international organisation.
2. The judgment should not be seen as a step towards the creation of a double standard. The concept of a
presumption of Convention compliance should not be interpreted as excluding a case-by-case review by this
Court of whether there really has been a breach of the Convention. I subscribe to the finding of the Court
that there exists within the European Community an effective protection of fundamental rights and freedoms
including those guaranteed by the Convention even if the access of individuals to the ECJ is rather limited,
as the Court has recognised, if not criticised, in paragraph 162 of the judgment. The Court has not addressed
the question of whether this limited access is really in accordance with Article 6 § 1 of the Convention and
whether the provisions, in particular, of former Article 173 of the EC Treaty should not be interpreted more
extensively in the light of Article 6 § 1 of the Convention, a point that was in issue before both the Court of
First Instance and the ECJ in Jégo-Quéré & Cie S.A. v. Commission of the European Communities (Case T-
177/01 [2002]
ECR II-2365 (Court of First Instance) and Case C-263/02 P [2004] ECR I-3425 (ECJ)). See also the ECJ's
judgment in Unión de Pequeños Agricultores v. Council of the European Union (Case C-50/00 P [2002]
ECR I-6677). One should not infer from paragraph 162 of the judgment in the present case that the Court
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ECR I-6677). One should not infer from paragraph 162 of the judgment in the present case that the Court
accepts that Article 6 § 1 does not call for a more extensive interpretation. Since the guarantees of the
Convention only establish obligations “of result”, without specifying the means to be used, it seems possible
to conclude that the protection of fundamental rights, including those of the Convention, by Community law
can be considered to have been “equivalent” (see paragraph 165 of the judgment), even if the protection of
the Convention by the ECJ is not a direct one but rather an indirect one through different sources of law,
namely the general principles of Community law. The criticism has sometimes been made that these general
principles of Community law do not, as interpreted by the case-law of the ECJ, fulfil the required standard
of protection, as they are limited by considerations of the general public interest of the European
Community. This reasoning makes it rather difficult for the ECJ to find violations of these general
principles of Community law. The Court's analysis of the “equivalence” of the protection is a rather formal
one, and relates only to the procedures of protection and not to the jurisprudence of the ECJ in relation to
the various substantive Convention guarantees: a major part of the jurisprudence of the ECJ on the level and
intensity of the protection of property rights and the application of Article 1 of Protocol No. 1 is missing.
But it is to be expected in future cases that the presumption of Convention compliance should and will be
enriched by considerations about the level and intensity of protection of a specific fundamental right
guaranteed by the Convention. In my view, one cannot say once and for all that, in relation to all
Convention rights, there is already such a presumption of Convention compliance because of the mere
formal system of protection by the ECJ. It may be expected that the provisions of the Charter of
Fundamental Rights of the European Union, if it comes into force, may enhance and clarify this level of
control for the future.
3. The Court decided that the presumption can only be rebutted if, in the circumstances of a particular
case, it is considered that the protection of the Convention rights was manifestly deficient. The protection
was manifestly deficient when there has, in procedural terms, been no adequate review in the particular case
such as: when the ECJ lacks competence (as in Segi and Gestoras Pro-Amnistía and Others v. Germany,
Austria, Belgium, Denmark, Spain, Finland, France, Greece, Ireland, Italy, Luxembourg, the Netherlands,
Portugal, the United Kingdom and Sweden (dec.), nos. 6422/02 and 9916/02, ECHR 2002-V); when the ECJ
has been too restrictive in its interpretation of individual access to it; or indeed where there has been an
obvious misinterpretation or misapplication by the ECJ of the guarantees of the Convention right. Even if
the level of protection must only be “comparable” and not “identical”, the result of the protection of the
Convention rights should be the same. It is undisputed that the level of control extends to both procedural
and substantive violations of the Convention guarantees. Article 35 § 3 of the Convention refers to
applications which are manifestly ill-founded and the new Article 28 § 1 (b) as inserted by Protocol No. 14
gives Committees the power to declare applications which are manifestly well-founded admissible and
render at the same time a judgment on the merits, that is, in the wording of that new Article, if the
underlying question in the case concerns an interpretation or application of the Convention (or its Protocols)
which is already the subject of well-established case-law of the Court. One would conclude that the
protection of the Convention right would be manifestly deficient if, in deciding the key question in a case,
the ECJ were to depart from the interpretation or the application of the Convention or the Protocols that had
already been the subject of well-established ECHR case-law. In all such cases, the protection would have to
be considered to be manifestly deficient. In other cases concerning new questions of interpretation or
application of a Convention right, it may be that the ECJ would decide in a way the ECHR would not be
prepared to follow in future cases, but in such cases it would be difficult to say that the deficiency was
already manifest. But even that result should not be excluded ab initio. Accordingly, and relying on the
wording of the Convention and its Protocols, I do not see the “manifestly deficient” level to be a major step
in the establishment of a double standard. Since the ECJ would, in a future case, be under an obligation to
consider whether there was already an interpretation or an application of the Convention which was the
subject of well-established ECHR case-law, I am convinced that it is only in exceptional cases that the
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subject of well-established ECHR case-law, I am convinced that it is only in exceptional cases that the
protection will be found to have been manifestly deficient. In the light of this interpretation of the judgment
which confirms the ECJ's obligation to follow the “well-established case-law of the ECHR” I have agreed
to the maxim in paragraph 156.
4. It would probably have been possible to elaborate on the various points made in paragraph 166 of the
judgment. The very brief reference to the nature of the interference, to the general interest pursued by the
impoundment and by the sanctions regime, and to the ECJ's ruling (in the light of the opinion of the
Advocate General) should not be seen as an open door through which any future cases where State
authorities apply Community law can pass without any further scrutiny. The Court has referred to the fact
that there was no dysfunction of the mechanism of control and of the observance of Convention rights. A
dysfunction of the observance of Convention rights would arise precisely in those cases where the protection
was manifestly deficient in the sense I have tried to explain. It would probably have been useful to explain
this in more detail to avoid the impression that member States of the European Community live under a
different and more lenient system as regards the protection of human rights and fundamental freedoms of
the Convention. In fact, the intensity of control and supervision by the ECHR will not be too different
between these States and others (such as Russia or Ukraine) which are not members of the European
Community.
5. A general remark is necessary on paragraph 150 of the judgment as regards the interpretation of the
Convention “in the light of any relevant rules and principles of international law”, which principles include
that of pacta sunt servanda. This cannot be interpreted as giving treaties concluded between the Contracting
Parties precedence over the Convention. On the contrary, as the Court recognised in Matthews v. the United
Kingdom ([GC], no. 24833/94, ECHR 1999-I), international treaties between the Contracting Parties have to
be consistent with the provisions of the Convention. The same is true of treaties establishing international
organisations. The importance of international cooperation and the need to secure the proper functioning of
international organisations cannot justify Contracting Parties creating and entering into international
organisations which are not in conformity with the Convention. Furthermore, international treaties like the
Convention may depart from rules and principles of international law normally applicable to relations
between the Contracting Parties. Therefore, in Al-Adsani v. the United Kingdom ([GC], no. 35763/97,
ECHR 2001-XI, which the Court cited in this connection in its judgment in the present case), the Court's
approach to the relationship between different sources of public international law was not the right one. The
correct question should have been whether, and to what extent, the Convention guarantees individual access
to tribunals in the sense of Article 6 § 1 and whether the Parties could and should have been seen as
nevertheless reserving the rule on State immunity. Since the Contracting Parties could have waived their
right to rely on State immunity by agreeing to Article 6 § 1 of the Convention, the starting-point should have
been the interpretation of Article 6 § 1 alone. Unfortunately this question was never raised. In the present
case, the correct approach should have been to examine whether, and to what extent, the Contracting Parties
could and should be presumed to have reserved a special position in relation to the Convention for
international treaties establishing an international organisation. The Court seems to proceed on the
assumption that the Contracting States agreed inherently that the value of international cooperation through
international organisations is such that it may prevail to a certain extent over the Convention. I could agree
to this conclusion, in principle, if all Contracting Parties to the Convention were also parties to the
international organisation in question. However, as Switzerland and Norway show, even from the very
beginning of European integration, this has never been the case.
1. Reference to the ECJ includes, as appropriate, the Court of First Instance.
2. See Stauder v. City of Ulm, Case 29/69 [1969] ECR 419.
3. See Internationale Handelsgesellschaft, Case 11/70 [1970] ECR 1125.
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4. See Nold v. Commission of the European Communities, Case 4/73 [1974] 491.
5. See Rutili v. Minister of the Interior, Case 36/75 [1975] ECR 1219; see also paragraph 10 of Opinion no. 256/2003 of the
European Commission for Democracy through Law (Venice Commission) on the implications of a legally binding EU Charter of
Fundamental Rights on human rights protection in Europe.
6. See Hauer v. Land Rheinland-Pfalz, Case 44/79 [1979] ECR 3727.
7. See, for example, Hauer, cited above, § 17 (Article 1 of Protocol No. 1); Regina v. Kent Kirk, Case 63/83 [1984] ECR 2689, § 22
(Article 7); Johnston v. Chief Constable of the Royal Ulster Constabulary, Case 222/84 [1986] ECR 1651, § 18 (Articles 6 and 13);
Hoechst AG v. Commission of the European Communities, Joined Cases 46/87 and 227/88 [1989] ECR 2859, § 18 (Article 8);
Commission of the European Communities v. the Federal Republic of Germany, Case 249/86 [1989] ECR 1263, § 10 (Article 8);
ERT v. DEP, Case C-260/89 [1991] ECR I-2925, § 45 (Article 10); Union royale belge des sociétés de football and Others v.
Bosman and Others, Case C-415/93 [1995] ECR I-4921, § 79 (Article 11); Philip Morris International, Inc. and Others v.
Commission of the European Communities, Joined Cases T-377/00, T-379/00, T-380/00, T-260/01 and T-272/01 [2003] ECR II-1, §
121 (Articles 6 and 13); and Bodil Lindqvist, Case C-101/01 [2003] ECR I-12971, § 90 (Article 10).
8. See, for example, Criminal proceedings against X, Joined Cases C-74/95 and C-129/95 [1996] ECR I-6609, § 25 (Article 7);
Vereinigte Familiapress Zeitungsverlags- und vertriebs GmbH v. Heinrich Bauer Verlag, Case C-368/95 [1997] ECR I-3689, §§ 25-
26 (Article 10); Lisa Jacqueline Grant v. South-West Trains Ltd, Case C-249/96 [1998] ECR I-621, §§ 33-34 (Articles 8, 12 and 14);
Baustahlgewebe GmbH v. Commission of the European Communities, Case C-185/95 P [1998] ECR I-8417, §§ 20 and 29 (Article
6); Dieter Krombach v. André Bamberski, Case C-7/98 [2000] ECR I-1935, §§ 39-40 (Article 6); Mannesmannröhren-Werke AG v.
Commission of the European Communities, Case T-112/98 [2001] ECR II-729, §§ 59 and 77 (Article 6); Connolly v. Commission of
the European Communities, Case C-274/99 [2001] ECR I-1611, § 39 (Article 10); Mary Carpenter v. Secretary of State for the
Home Department, Case C-60/00 [2002] ECR I-6279, §§ 41-42 (Article 8); Joachim Steffensen, Case C-276/01 [2003] ECR I-3735,
§§ 72 and 75-77 (Article 6); Rechnungshof and Others, Joined Cases C-465/00, C-138/01 and C-139/01 [2003] ECR I-4989, §§ 73-
77 and 83 (Article 8); Archer Daniels Midland Company and Archer Daniels Midland Ingredients Ltd v. Commission of the
European Communities, Case T-224/00 [2003] ECR II-2597, §§ 39, 85 and 91 (Article 7); Secretary of State for the Home
Department v. Hacene Akrich, Case C-109/01 [2003] ECR I-9607, §§ 58-60 (Article 8); K.B. v. National Health Service Pensions
Agency and Secretary of State for Health, Case C-117/01 [2004] ECR I-541, §§ 33-35 (Article 12); Herbert Karner IndustrieAuktionen
GmbH v. Troostwijk GmbH, Case C-71/02 [2004] ECR I-3025, §§ 50-51 (Article 10); Orfanopoulos and Oliveri v. Land
Baden-Württemberg, Joined Cases C-482/01 and C-493/01 [2004] ECR I-5257, §§ 98-99 (Article 8); and JFE Engineering Corp.,
Nippon Steel Corp., JFE Steel Corp. and Sumitomo Metal Industries Ltd v. Commission of the European Communities, Joined Cases
T-67/00, T-68/00, T-71/00 and T-78/00 [2004] ECR II-2501, § 178 (Article 6).
9. ERT v. DEP, cited above.
10. Accession by the Community to the European Convention for the Protection of Human Rights and Fundamental Freedoms,
Opinion 2/94 [1996] ECR I-1759.
11. The Queen v. Secretary of State for the Home Department, ex parte Eleanora Ivanova Kondova, Case C-235/99 [2001] ECR I-
6427.
12. Given the period covered by the facts of the case, the former numbering of Articles of the EC Treaty is used (followed, where
appropriate, by the present numbering).
13. Regulations come into force on the date specified therein or, where no such date is specified, twenty days after publication in the
Official Journal (Article 191(2), now 254(2)).
14. Unión de Pequeños Agricultores v. Council of the European Union, Case C-50/00 P ECR [2002] I-6677.
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15. See Aktien-Zuckerfabrik Schöppenstedt v. Council of the European Communities, Case 5/71 [1971] ECR 975.
16. See Internationale Handelsgesellschaft mbH v. Einfuhr- und Vorratsstelle für Getreide und Futtermittel, Case 11/70 [1970]
ECR 1125.
17. Laid down in Van Gend en Loos v. Nederlandse Administratie des Belastingen, Case 26/62 [1963] ECR 1.
18. See Von Colson and Kamann v. Land Nordrhein-Westfalen, Case 14/83 [1984] ECR 1891, and Marleasing S.A. v. La
Comercial Internacional de Alimentación S.A., Case C-106/89 [1990] ECR I-4135.
19. Francovich and Others v. Italian Republic, Joined Cases C-6/90 and C-9/90 [1991] ECR I-5357.
20. See Brasserie du Pêcheur S.A. v. Bundesrepublik Deutschland and The Queen v. Secretary of State for Transport, ex parte
Factortame Ltd and Others, Joined Cases C-46/93 and C-48/93 [1996] ECR I-1029; see also Gerhard Köbler v. Republik Österreich,
Case C-224/01 [2003] ECR I-10239.
21. Commission of the European Communities v. Portuguese Republic, Case C-55/02 [2004] ECR I-9387, § 45.
22. See Eugen Schmidberger, Internationale Transporte und Planzüge v. Republik Österreich, Case C-112/00 [2003] ECR I-5659.
23. S.r.l. CILFIT and Lanificio di Gavardo S.p.a. v. Ministry of Health, Case 283/81 [1982] ECR 3415.
24. See Jacob Adlerblum v. Caisse nationale d’assurance vieillesse des travailleurs salariés, Case 93-75 [1975] ECR 2147.
25. See Costa v. Ente Nazionale Energia Elettrica (ENEL), Case 6/64 [1964] ECR 585.
BOSPHORUS HAVA YOLLARI TURİZM VE TİCARET ANONİM ŞİRKETİ
v. IRELAND JUDGMENT
BOSPHORUS HAVA YOLLARI TURİZM VE TİCARET ANONİM ŞİRKETİ
v. IRELAND JUDGMENT
BOSPHORUS HAVA YOLLARI TURİZM VE TİCARET ANONİM ŞİRKETİ
v. IRELAND JUDGMENT
BOSPHORUS HAVA YOLLARI TURİZM VE TİCARET ANONİM ŞİRKETİ
v. IRELAND JUDGMENT
BOSPHORUS HAVA YOLLARI TURİZM VE TİCARET ANONİM ŞİRKETİ
v. IRELAND JUDGMENT
BOSPHORUS HAVA YOLLARI TURİZM VE TİCARET ANONİM ŞİRKETİ
v. IRELAND JUDGMENT – JOINT CONCURRING OPINION
BOSPHORUS HAVA YOLLARI TURİZM VE TİCARET ANONİM ŞİRKETİ
v. IRELAND JUDGMENT – JOINT CONCURRING OPINION
BOSPHORUS HAVA YOLLARI TURİZM VE TİCARET ANONİM ŞİRKETİ
v. IRELAND JUDGMENT
BOSPHORUS HAVA YOLLARI TURİZM VE TİCARET ANONİM ŞİRKETİ
v. IRELAND JUDGMENT
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v. IRELAND JUDGMENT
BOSPHORUS HAVA YOLLARI TURİZM VE TİCARET ANONİM ŞİRKETİ
v. IRELAND JUDGMENT – CONCURRING OPINION OF JUDGE RESS
BOSPHORUS HAVA YOLLARI TURİZM VE TİCARET ANONİM ŞİRKETİ
v. IRELAND JUDGMENT – CONCURRING OPINION OF JUDGE RESS