Aviazione - C.Strasburgo 2005
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. 1 ...
10 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.”
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 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.
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 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,
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.
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
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
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
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
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 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
(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 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
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 “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 four-year 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.
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
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
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
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
(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 Community . 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 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 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
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
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 non-contractual 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).
(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.
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.
JOINT CONCURRING OPINION OF JUDGES ROZAKIS, TULKENS, TRAJA,
BOTOUCHAROVA, ZAGREBELSKY AND GARLICKI
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
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.
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 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
+1 anno fa
La dispensa fa riferimento alle lezioni di Diritto Costituzionale Avanzato, tenute dal Prof. Francesco Cerrone nell'anno accademico 2011.
Il documento riporta il testo di una sentenza della Corte di Strasburgo emanata nel 2005. Gli argomenti trattati sono i seguenti: contratto di locazione, leasing, regolamenti internazionali delle compagnie aeree e dell'aviazione in generale.
I contenuti di questa pagina costituiscono rielaborazioni personali del Publisher Atreyu di informazioni apprese con la frequenza delle lezioni di Diritto Costituzionale Avanzato e studio autonomo di eventuali libri di riferimento in preparazione dell'esame finale o della tesi. Non devono intendersi come materiale ufficiale dell'università Perugia - Unipg o del prof Cerrone Francesco.
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