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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... Vedi di più

Esame di Diritto Costituzionale Avanzato docente Prof. F. Cerrone

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ESTRATTO DOCUMENTO

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.

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.

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 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 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 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.”

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:

“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. 1

A. Fundamental rights: case-law of the ECJ

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

2

enshrined in the general principles of Community law protected by the ECJ . By the early 1970s the

ECJ had confirmed that, in protecting such rights, it was inspired by the constitutional traditions of

3

the member States and by the guidelines supplied by international human rights treaties on which

4

the member States had collaborated or to which they were signatories . The Convention's provisions

5

were first explicitly referred to in 1975 , and by 1979 its special significance amongst international

6

treaties on the protection of human rights had been recognised by the ECJ . Thereafter the ECJ

began to refer extensively to Convention provisions (sometimes where the Community legislation

7 8

under its consideration had referred to the Convention) and latterly to this Court's jurisprudence ,

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

9

law in the following terms :

“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.

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

10

the Community to the Convention , in which it opined, in particular, that respect for human rights

was “a condition of the lawfulness of Community acts”.

11

76. In Kondova , 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.” 12

B. Relevant treaty provisions

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:

“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

13

member States means that it takes effect 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 ...

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

14

act.”

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

15

provide an independent cause of action 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 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

16

domestic law pursuant to the principle of supremacy of Community law . 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

17

legal relationship between States and their subjects” .

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

18

the light of the wording and purpose of the relevant directive . 19

95. The principle of State liability was first developed in Francovich . 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

20

for liability were fulfilled .

(c) Preliminary reference procedure

96. In order to assist national courts in correctly implementing Community law and maintaining its

21

uniform application , 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.” 22

97. The ECJ described the nature of this preliminary reference procedure as follows :

“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

23

courts of last instance for which referral is mandatory. However, according to the CILFIT

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

24

question . The domestic court will decide on the appropriate remedy.

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.

o

4. 1 ...

o

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.”

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 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 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.

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

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.

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.


PAGINE

51

PESO

247.80 KB

AUTORE

Atreyu

PUBBLICATO

+1 anno fa


DESCRIZIONE DISPENSA

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.


DETTAGLI
Corso di laurea: Corso di laurea magistrale in giurisprudenza
SSD:
Università: Perugia - Unipg
A.A.: 2011-2012

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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