Aviazione - C.Strasburgo 2005
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
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  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
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
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  ECR 2609; and Case C-280/93, Germany v. Council
 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
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
“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
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
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:
“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.”
“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
“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.”
“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
“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
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
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
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
the member States and by the guidelines supplied by international human rights treaties on which
the member States had collaborated or to which they were signatories . The Convention's provisions
were first explicitly referred to in 1975 , and by 1979 its special significance amongst international
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
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
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
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”.
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
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
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
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
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
83. The relevant part of Article 189 (now Article 249) reads as follows:
“A regulation shall have general application. It shall be binding in its entirety and directly
applicable in all Member States. ...”
The description of a regulation as being “binding in its entirety” and “directly applicable” in all
member States means that it takes 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
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
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
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
88. Having legal personality of its own, the European Community can be sued for damages in tort,
described as its non-contractual liability. Its institutions will be considered liable for wrongful
(illegal or invalid) acts or omissions by the institution (fautes de service) or its servants (fautes
personnelles) which have caused damage to the claimant (Articles 178 and 215, now Articles 235
and 288). Unlike actions under Articles 173, 175 and 184 (now Articles 230, 232 and 241), and
subject to the various inherent limitations imposed by the elements of the action to be established,
there are no personal or locus standi limitations on the right to bring such an action. It can therefore
provide an independent cause of 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
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
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
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
for liability were fulfilled .
(c) Preliminary reference procedure
96. In order to assist national courts in correctly implementing Community law and maintaining its
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
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
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
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.
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
+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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