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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

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.

C. The third-party submissions

1. The European Commission (“the Commission”)

(a) Article 1 of the Convention

122. The Commission considered that the application concerned in substance a State's

responsibility for Community acts: while a State retained some Convention responsibility after it

had ceded powers to an international organisation, that responsibility was fulfilled where there was

proper provision in that organisation's structure for effective protection of fundamental rights at a

level at least “equivalent” to that of the Convention. The Commission therefore supported the

approach adopted in M. & Co. (cited above) and urged the Court to adopt this solution pending

accession to the Convention by the European Union. Thereafter, any Convention responsibility,

over and above the need to establish equivalent protection, would only arise when the State

exercised a discretion accorded to it by the international organisations.

123. The Commission considered this approach to be consistent with the recent case-law of this

Court. The reference in Matthews (cited above) to a State's Convention responsibility continuing

after a transfer of competence to the European Community and to the Convention responsibility of

the United Kingdom was consistent with the M. & Co. approach, given the differing impugned

measures in issue in both cases. Waite and Kennedy and Beer and Regan (both cited above) fully

confirmed the Commission's position. Cantoni was clearly distinguishable, as this Court had

reviewed the discretion exercised by the French authorities to create criminal sanctions in

implementing a Community directive.

124. The reason for initially adopting this “equivalent protection” approach (facilitating State

cooperation through international organisations) was equally, if not more, pertinent today. It was an

approach which was especially important for the European Community given its distinctive features

of supranationality and the nature of Community law: to require a State to review for Convention

compliance an act of the European Community before implementing it (with the unilateral action

and non-observance of Community law that would potentially entail) would pose an incalculable

threat to the very foundations of the Community, a result not envisaged by the drafters of the

Convention, supportive as they were of European cooperation and integration. Moreover, subjecting

individual Community acts to Convention scrutiny would amount to making it a respondent in

Convention proceedings without any of the procedural rights and safeguards of a Contracting State

to the Convention. In short, the M. & Co. approach allowed the Convention to be applied in a

manner which took account of the needs and realities of international relations and the unique

features of the Community system.

125. In the opinion of the Commission, the respondent State had no discretion under Community

law. When a case involved an Article 177 (now Article 234) reference, this Court should distinguish

between the respective roles of the national courts and the ECJ, so that if the impugned act was a

direct result of the ECJ's ruling this Court should refrain from scrutinising it.

In the Commission's view, Ireland was obliged (especially given the opinion of the Sanctions

Committee) on account of its duty of loyal cooperation (Article 5, now Article 10, of the EC Treaty)

to appeal the judgment of Mr Justice Murphy of the High Court to the Supreme Court in order to

ensure effective implementation of Regulation (EEC) no. 990/93. The Supreme Court, as the last-

instance court, was obliged under Article 177 (now Article 234) of the EC Treaty to make a

reference to the ECJ since there was no doubt that the government's appeal before it raised a serious

and central question of interpretation of Community law. The Supreme Court asked the ECJ

whether Article 8 of Regulation (EEC) no. 990/93 applied to an aircraft such as that leased by the

applicant company and the ECJ ruled that it did, having reviewed the fundamental rights aspects of

the case so that, although the ECJ could not examine the particular facts of cases, the impoundment

in question was conclusively assessed and decided by the ECJ. The ruling of the ECJ was binding

on the Supreme Court.

In those circumstances, the Supreme Court had no discretion to exercise and, consequently, its

implementation of the ECJ ruling could not be reviewed by this Court.

126. Moreover, the Commission considered that “equivalent protection” was to be found in

Community law and structures. It outlined the developing recognition of the Convention provisions

as a significant source of general principles of Community law, which governed the activities of the

Community institutions and States and was implemented by the Community's judicial machinery,

and noted the relevant Treaty amendments reinforcing these case-law developments.

127. Finally, the Commission considered that the ruling in Kondova (cited above) clearly supported

its position that discretionary acts of the State remained fully subject to the Convention. The

applicant company's reliance on Article 234 (now Article 307) of the EC Treaty was erroneous and

the conclusions drawn therefrom inappropriate: in expressing international law principles such as

pacta sunt servanda, the said Article simply confirmed the starting-point of the relevant Convention

analysis, namely, that a State cannot avoid its Convention responsibilities by ceding power to an

international organisation.

(b) Article 1 of Protocol No. 1

128. The Commission considered it indisputable that Regulation (EEC) no. 990/93 constituted the

legal basis for the impoundment. It rejected the applicant company's suggestion that the

impoundment was unlawful pending national secondary legislation and agreed with the

Government that the implementing statutory instrument contained administrative competence and

procedural provisions which had no bearing on the directly applicable nature of Regulation (EEC)

no. 990/93. For the reasons set out in the Advocate General's opinion and the ECJ's ruling, the

Commission argued that the impoundment until October 1994 was proportionate and it did not find

persuasive the applicant company's argument that it was unjustified thereafter.

2. The Italian Government

129. As regards Article 1 of the Convention, the Italian Government considered that the case

amounted to a challenge to the provisions of the relevant UNSC resolution and European

Community regulation and fell, as such, outside the Court's jurisdiction. The Irish State was obliged

to implement these instruments, it was obliged to address the relevant organs (the Sanctions

Committee and the ECJ) and to comply with the rulings obtained: this warranted a conclusion of

incompatibility ratione personae. As to the original handing over of sovereign power to the United

Nations and European Community, the Italian Government also relied on M. & Co., arguing that

both the United Nations and the European Community provided “equivalent protection”: this

warranted a conclusion of incompatibility ratione materiae or personae. Finally, any imposition of

an obligation on a State to review its United Nations and European Community obligations for

Convention compatibility would undermine the legal systems of international organisations and,

consequently, the international response to serious international crises.

130. On the merits of Article 1 of Protocol No. 1, they underlined the importance of the public-

interest objective pursued by the impoundment.

3. The United Kingdom Government

131. The United Kingdom Government considered that, since the complaint was against the

European Community, it was incompatible with the Convention provisions. To make one member

State responsible for Community acts would not only be contrary to Convention jurisprudence, but

would also subvert fundamental principles of international law (including the separate legal

personality of international organisations) and be inconsistent with the obligations of member States

of the European Community. They relied on M. & Co., cited above, noting that human rights

safeguards within the Community legal order had been further strengthened since the adoption of

the decision in that case.

132. On the merits of the complaint under Article 1 of Protocol No. 1, the United Kingdom

Government underlined the importance of the public interest at stake, considered that the margin of

appreciation was therefore wide, and argued that, even if the applicant company was an innocent

party, this would not render the interference with its property rights disproportionate (see AGOSI

and Air Canada, both cited above).

4. The Institut de formation en droits de l'homme du barreau de Paris (“the Institut”)

133. The Institut considered the case compatible with the provisions of the Convention. However,

it was equally of the view that this would not prevent member States from complying with their

Community obligations or mean that the Court would have jurisdiction to examine Community

provisions in the light of the Convention. The application was compatible ratione personae, since

the object of the case was not to challenge United Nations or European Community provisions but

rather Ireland's implementation of them. It was compatible ratione materiae because Article 1 of the

Convention did not exclude a particular type of measure or any part of a member State's jurisdiction

from scrutiny. The Institut pointed, by way of illustration, to the matters assessed by the Court in a

number of cases including those of Cantoni, Matthews, and Waite and Kennedy (all cited above).

Since neither the United Nations nor the European Community provided equivalent human rights

protection (especially when seen from the point of view of individual access to that protection and

the limitations of the preliminary reference procedure), the complaint had to be found compatible

with the provisions of the Convention.

134. As to the merits of the complaint under Article 1 of Protocol No. 1, the Institut considered the

initial impoundment of the aircraft to be entirely justified but left open the justifiability of the

retention of the aircraft after October 1994.

III. THE COURT'S ASSESSMENT

A. Article 1 of the Convention

135. The parties and third parties made substantial submissions under Article 1 of the Convention

about the Irish State's Convention responsibility for the impoundment given its Community

obligations. This Article provides:

“The High Contracting Parties shall secure to everyone within their jurisdiction the rights and

freedoms defined in Section I of [the] Convention.”

136. The text of Article 1 requires States Parties to answer for any infringement of the rights and

freedoms protected by the Convention committed against individuals placed under their

“jurisdiction” (see Ilaşcu and Others v. Moldova and Russia [GC], no. 48787/99, § 311, ECHR

2004-VII). The notion of “jurisdiction” reflects the term's meaning in public international law (see

Gentilhomme and Others v. France, nos. 48205/99, 48207/99, and 48209/99, § 20, 14 May 2002;

Banković and Others v. Belgium and Others (dec.) [GC], no. 52207/99, §§ 59-61, ECHR 2001-XII;

and Assanidze v. Georgia, no. 71503/01, § 137, ECHR 2004-II), so that a State's jurisdictional

competence is considered primarily territorial (see Banković and Others, § 59), a jurisdiction

presumed to be exercised throughout the State's territory (see Ilaşcu and Others, § 312).

137. In the present case it is not disputed that the act about which the applicant company

complained, the detention of the aircraft leased by it for a period of time, was implemented by the

authorities of the respondent State on its territory following a decision made by the Irish Minister

for Transport. In such circumstances the applicant company, as the addressee of the impugned act,

fell within the “jurisdiction” of the Irish State, with the consequence that its complaint about that act

is compatible ratione loci, personae and materiae with the provisions of the Convention.

138. The Court is further of the view that the submissions referred to in paragraph 135 above

concerning the scope of the responsibility of the respondent State go to the merits of the complaint

under Article 1 of Protocol No. 1 and are therefore examined below.

B. Article 1 of Protocol No. 1

139. Article 1 of Protocol No. 1 reads as follows:

“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall

be deprived of his possessions except in the public interest and subject to the conditions provided

for by law and by the general principles of international law.

The preceding provisions shall not, however, in any way impair the right of a State to enforce such

laws as it deems necessary to control the use of property in accordance with the general interest or

to secure the payment of taxes or other contributions or penalties.”

140. It was not disputed that there was an “interference” (the detention of the aircraft) with the

applicant company's “possessions” (the benefit of its lease of the aircraft) and the Court does not

see any reason to conclude otherwise (see, for example, Stretch v. the United Kingdom, no.

44277/98, §§ 32-35, 24 June 2003).

1. The applicable rule

141. The parties did not, however, agree on whether that interference amounted to a deprivation of

property (first paragraph of Article 1 of Protocol No. 1) or a control of the use of property (second

paragraph). The Court reiterates that, in guaranteeing the right of property, this Article comprises

“three distinct rules”: the first rule, set out in the first sentence of the first paragraph, is of a general

nature and enunciates the principle of the peaceful enjoyment of property; the second rule,

contained in the second sentence of the first paragraph, covers deprivation of possessions and

subjects it to certain conditions; the third rule, stated in the second paragraph, recognises that the

Contracting States are entitled, amongst other things, to control the use of property in accordance

with the general interest. The three rules are not “distinct” in the sense of being unconnected: the

second and third rules are concerned with particular instances of interference with the right to

peaceful enjoyment of property and should therefore be construed in the light of the general

principle enunciated in the first rule (see AGOSI, cited above, p. 17, § 48).

142. The Court considers that the sanctions regime amounted to a control of the use of property

considered to benefit the former FRY and that the impugned detention of the aircraft was a measure

to enforce that regime. While the applicant company lost the benefit of approximately three years of

a four-year lease, that loss formed a constituent element of the above-mentioned control on the use

of property. It is therefore the second paragraph of Article 1 of Protocol No. 1 which is applicable in

the present case (see AGOSI, cited above, pp. 17-18, §§ 50-51, and Gasus Dosier- und

Fördertechnik GmbH v. the Netherlands, judgment of 23 February 1995, Series A no. 306-B, pp.

47-48, § 59), the “general principles of international law” within the particular meaning of the first

paragraph of Article 1 of Protocol No. 1 (and relied on by the applicant company) not therefore

requiring separate examination (see Gasus Dosier- und Fördertechnik GmbH, pp. 51-53, §§ 66-74).

2. The legal basis for the impugned interference

143. The parties strongly disagreed as to whether the impoundment was at all times based on legal

obligations on the Irish State flowing from Article 8 of Regulation (EEC) no. 990/93.

For the purposes of its examination of this question, the Court reiterates that it is primarily for the

national authorities, notably the courts, to interpret and apply domestic law even when that law

refers to international law or agreements. Equally, the Community's judicial organs are better placed

to interpret and apply Community law. In each instance, the Court's role is confined to ascertaining

whether the effects of such adjudication are compatible with the Convention (see, mutatis mutandis,

Waite and Kennedy, cited above, § 54, and Streletz, Kessler and Krenz v. Germany [GC], nos.

34044/96, 35532/97 and 44801/98, § 49, ECHR 2001-II).

144. While the applicant company alluded briefly to the Irish State's role in the Council of the

European Communities (see paragraph 115 above), the Court notes that its essential standpoint was

that it was not challenging the provisions of the regulation itself but rather their implementation.

145. Once adopted, Regulation (EEC) no. 990/93 was “generally applicable” and “binding in its

entirety” (pursuant to Article 189, now Article 249, of the EC Treaty), so that it applied to all

member States, none of which could lawfully depart from any of its provisions. In addition, its

“direct applicability” was not, and in the Court's view could not be, disputed. The regulation

became part of domestic law with effect from 28 April 1993 when it was published in the Official

Journal, prior to the date of the impoundment and without the need for implementing legislation

(see, in general, paragraphs 65 and 83 above).

The later adoption of Statutory Instrument no. 144 of 1993 did not, as suggested by the applicant

company, have any bearing on the lawfulness of the impoundment; it simply regulated certain

administrative matters (the identity of the competent authority and the sanction to be imposed for a

breach of the regulation) as foreseen by Articles 9 and 10 of the EEC regulation. While the

applicant company queried which body was competent for the purposes of the regulation (see

paragraph 120 above), the Court considers it entirely foreseeable that the Minister for Transport

would implement the impoundment powers contained in Article 8 of Regulation (EEC) no. 990/93.

It is true that Regulation (EEC) no. 990/93 originated in a UNSC resolution adopted under Chapter

VII of the United Nations Charter (a point developed in some detail by the Government and certain

third parties). While the resolution was pertinent to the interpretation of the regulation (see the

opinion of the Advocate General and the ruling of the ECJ – paragraphs 45-50 and 52-55 above),

the resolution did not form part of Irish domestic law (Mr Justice Murphy – paragraph 35 above)

and could not therefore have constituted a legal basis for the impoundment of the aircraft by the

Minister for Transport.

Accordingly, the Irish authorities rightly considered themselves obliged to impound any departing

aircraft to which they considered Article 8 of Regulation (EEC) no. 990/93 applied. Their decision

that it did so apply was later confirmed, in particular, by the ECJ (see paragraphs 54-55 above).

146. The Court finds persuasive the European Commission's submission that the State's duty of

loyal cooperation (Article 5, now Article 10, of the EC Treaty) required it to appeal the High Court

judgment of June 1994 to the Supreme Court in order to clarify the interpretation of Regulation

(EEC) no. 990/93. This was the first time that regulation had been applied, and the High Court's

interpretation differed from that of the Sanctions Committee, a body appointed by the United

Nations to interpret the UNSC resolution implemented by the regulation in question.

147. The Court would also agree with the Government and the European Commission that the

Supreme Court had no real discretion to exercise, either before or after its preliminary reference to

the ECJ, for the reasons set out below.

In the first place, there being no domestic judicial remedy against its decisions, the Supreme Court

had to make the preliminary reference it did having regard to the terms of Article 177 (now Article

234) of the EC Treaty and the judgment of the ECJ in CILFIT (see paragraph 98 above): the answer

to the interpretative question put to the ECJ was not obvious (the conclusions of the Sanctions

Committee and the Minister for Transport conflicted with those of the High Court); the question

was of central importance to the case (see the High Court's description of the essential question in

the case and its consequential judgment from which the Minister appealed to the Supreme Court –

paragraphs 35-36 above); and there was no previous ruling by the ECJ on the point. This finding is

not affected by the observation in the Court's decision in Moosbrugger (cited and relied on by the

applicant company – see paragraph 116 above) that an individual does not per se have a right to a

referral.

Secondly, the ECJ ruling was binding on the Supreme Court (see paragraph 99 above).

Thirdly, the ruling of the ECJ effectively determined the domestic proceedings in the present case.

Given the Supreme Court's question and the answer of the ECJ, the only conclusion open to the

former was that Regulation (EEC) no. 990/93 applied to the applicant company's aircraft. It is

moreover erroneous to suggest, as the applicant company did, that the Supreme Court could have

made certain orders additional to the ECJ ruling (including a second “clarifying” reference to the

ECJ) as regards impoundment expenses, compensation and the intervening relaxation of the

sanctions regime. The applicant company's motion and affidavit of October 1996 filed with the

Supreme Court did not develop these matters in any detail or request that court to make such

supplemental orders. In any event, the applicant company was not required to discharge the

impoundment expenses.

The fact that Regulation (EEC) no. 990/93 did not admit of an award of compensation was implicit

in the findings of the Advocate General and the ECJ (each considered the application of the

regulation to be justified despite the hardship it implied) and in the expenses provisions of the

second sentence of Article 8 of the regulation. Consequently, the notions of uniform application and

supremacy of Community law (see paragraphs 92 and 96 above) prevented the Supreme Court from

making such an award. As noted in paragraph 105 above, Regulation (EC) no. 2472/94 relaxing the

sanctions regime as implemented in the European Community from October 1994 expressly

excluded from its ambit aircraft already lawfully impounded, and neither the ECJ nor the Supreme

Court referred to this point in their respective ruling (of July 1996) and judgment (of November

1996).

148. For these reasons, the Court finds that the impugned interference was not the result of an

exercise of discretion by the Irish authorities, either under Community or Irish law, but rather

amounted to compliance by the Irish State with its legal obligations flowing from Community law

and, in particular, Article 8 of Regulation (EEC) no. 990/93.

3. Whether the impoundment was justified

(a) The general approach to be adopted

149. Since the second paragraph of Article 1 of Protocol No. 1 is to be construed in the light of the

general principle enunciated in the opening sentence of that Article, there must exist a reasonable

relationship of proportionality between the means employed and the aim sought to be realised: the

Court must determine whether a fair balance has been struck between the demands of the general

interest in this respect and the interest of the individual company concerned. In so determining, the

Court recognises that the State enjoys a wide margin of appreciation with regard to the means to be

employed and to the question of whether the consequences are justified in the general interest for

the purpose of achieving the objective pursued (see AGOSI, cited above, p. 18, § 52).

150. The Court considers it evident from its finding in paragraphs 145 to 148 above that the general

interest pursued by the impugned measure was compliance with legal obligations flowing from the

Irish State's membership of the European Community.

It is, moreover, a legitimate interest of considerable weight. The Convention has to be interpreted in

the light of any relevant rules and principles of international law applicable in relations between the

Contracting Parties (Article 31 § 3 (c) of the Vienna Convention on the Law of Treaties, and Al-

Adsani v. the United Kingdom [GC], no. 35763/97, § 55, ECHR 2001-XI), which principles include

that of pacta sunt servanda. The Court has also long recognised the growing importance of

international cooperation and of the consequent need to secure the proper functioning of

international organisations (see Waite and Kennedy, §§ 63 and 72, and Al-Adsani, § 54, both cited

above; see also Article 234 (now Article 307) of the EC Treaty). Such considerations are critical for

25

a supranational organisation such as the European Community . This Court has accordingly

accepted that compliance with Community law by a Contracting Party constitutes a legitimate

general-interest objective within the meaning of Article 1 of Protocol No. 1 (see, mutatis mutandis,

S.A. Dangeville, cited above, §§ 47 and 55).

151. The question is therefore whether, and if so to what extent, that important general interest of

compliance with Community obligations can justify the impugned interference by the Irish State

with the applicant company's property rights.

152. The Convention does not, on the one hand, prohibit Contracting Parties from transferring

sovereign power to an international (including a supranational) organisation in order to pursue

cooperation in certain fields of activity (see M. & Co., p. 144, and Matthews, § 32, both cited

above). Moreover, even as the holder of such transferred sovereign power, that organisation is not

itself held responsible under the Convention for proceedings before, or decisions of, its organs as

long as it is not a Contracting Party (see Confédération française démocratique du travail v.

European Communities, no. 8030/77, Commission decision of 10 July 1978, DR 13, p. 231; Dufay

v. European Communities, no. 13539/88, Commission decision of 19 January 1989, unreported; and

M. & Co., p. 144, and Matthews, § 32, both cited above).

153. On the other hand, it has also been accepted that a Contracting Party is responsible under

Article 1 of the Convention for all acts and omissions of its organs regardless of whether the act or

omission in question was a consequence of domestic law or of the necessity to comply with

international legal obligations. Article 1 makes no distinction as to the type of rule or measure

concerned and does not exclude any part of a Contracting Party's “jurisdiction” from scrutiny under

the Convention (see United Communist Party of Turkey and Others v. Turkey, judgment of 30

January 1998, Reports 1998-I, pp. 17-18, § 29).

154. In reconciling both these positions and thereby establishing the extent to which a State's action

can be justified by its compliance with obligations flowing from its membership of an international

organisation to which it has transferred part of its sovereignty, the Court has recognised that

absolving Contracting States completely from their Convention responsibility in the areas covered

by such a transfer would be incompatible with the purpose and object of the Convention; the

guarantees of the Convention could be limited or excluded at will, thereby depriving it of its

peremptory character and undermining the practical and effective nature of its safeguards (see M. &

Co., p. 145, and Waite and Kennedy, § 67, both cited above). The State is considered to retain

Convention liability in respect of treaty commitments subsequent to the entry into force of the

Convention (see mutatis mutandis, Matthews, cited above, §§ 29 and 32-34, and Prince Hans-Adam

II of Liechtenstein v. Germany [GC], no. 42527/98, § 47, ECHR 2001-VIII).

155. In the Court's view, State action taken in compliance with such legal obligations is justified as

long as the relevant organisation is considered to protect fundamental rights, as regards both the

substantive guarantees offered and the mechanisms controlling their observance, in a manner which

can be considered at least equivalent to that for which the Convention provides (see M. & Co., cited

above, p. 145, an approach with which the parties and the European Commission agreed). By

“equivalent” the Court means “comparable”; any requirement that the organisation's protection be

“identical” could run counter to the interest of international cooperation pursued (see paragraph 150

above). However, any such finding of equivalence could not be final and would be susceptible to

review in the light of any relevant change in fundamental rights protection.

156. If such equivalent protection is considered to be provided by the organisation, the presumption

will be that a State has not departed from the requirements of the Convention when it does no more

than implement legal obligations flowing from its membership of the organisation.

However, any such presumption can be rebutted if, in the circumstances of a particular case, it is

considered that the protection of Convention rights was manifestly deficient. In such cases, the

interest of international cooperation would be outweighed by the Convention's role as a

“constitutional instrument of European public order” in the field of human rights (see Loizidou v.

Turkey (preliminary objections), judgment of 23 March 1995, Series A no. 310, pp. 27-28, § 75).

157. It remains the case that a State would be fully responsible under the Convention for all acts

falling outside its strict international legal obligations. The numerous Convention cases cited by the

applicant company in paragraph 117 above confirm this. Each case (in particular, Cantoni, p. 1626,

§ 26) concerned a review by this Court of the exercise of State discretion for which Community law

provided. Pellegrini is distinguishable: the State responsibility issue raised by the enforcement of a

judgment not of a Contracting Party to the Convention (see Drozd and Janousek v. France and

Spain, judgment of 26 June 1992, Series A no. 240, pp. 34-35, § 110) is not comparable to

compliance with a legal obligation emanating from an international organisation to which

Contracting Parties have transferred part of their sovereignty. Matthews can also be distinguished:

the acts for which the United Kingdom was found responsible were “international instruments

which were freely entered into” by it (see paragraph 33 of that judgment). Kondova (see paragraph

76 above), also relied on by the applicant company, is consistent with a State's Convention

responsibility for acts not required by international legal obligations.

158. Since the impugned measure constituted solely compliance by Ireland with its legal

obligations flowing from membership of the European Community (see paragraph 148 above), the

Court will now examine whether a presumption arises that Ireland complied with the requirements

of the Convention in fulfilling such obligations and whether any such presumption has been

rebutted in the circumstances of the present case.

(b) Whether there was a presumption of Convention compliance at the relevant time

159. The Court has described above (see paragraphs 73-81) the fundamental rights guarantees of

the European Community which apply to member States, Community institutions and natural and

legal persons (“individuals”).

While the founding treaties of the European Communities did not initially contain express

provisions for the protection of fundamental rights, the ECJ subsequently recognised that such

rights were enshrined in the general principles of Community law protected by it, and that the

Convention had a “special significance” as a source of such rights. Respect for fundamental rights

has become “a condition of the legality of Community acts” (see paragraphs 73-75 above, together

with the opinion of the Advocate General in the present case, paragraphs 45-50 above) and in

carrying out this assessment the ECJ refers extensively to Convention provisions and to this Court's

jurisprudence. At the relevant time, these jurisprudential developments had been reflected in certain

treaty amendments (notably those aspects of the Single European Act of 1986 and of the Treaty on

European Union referred to in paragraphs 77-78 above).

This evolution has continued. The Treaty of Amsterdam of 1997 is referred to in paragraph 79

above. Although not fully binding, the provisions of the Charter of Fundamental Rights of the

European Union were substantially inspired by those of the Convention, and the Charter recognises

the Convention as establishing the minimum human rights standards. Article I-9 of the later Treaty

establishing a Constitution for Europe (not in force) provides for the Charter to become primary law

of the European Union and for the Union to accede to the Convention (see paragraphs 80-81

above).

160. However, the effectiveness of such substantive guarantees of fundamental rights depends on

the mechanisms of control in place to ensure their observance.

161. The Court has referred (see paragraphs 86-90 above) to the jurisdiction of the ECJ in, inter

alia, annulment actions (Article 173, now Article 230, of the EC Treaty), in actions against

Community institutions for failure to perform Treaty obligations (Article 175, now Article 232), to

hear related pleas of illegality under Article 184 (now Article 241) and in cases against member

States for failure to fulfil Treaty obligations (Articles 169, 170 and 171, now Articles 226, 227 and

228).

162. It is true that access of individuals to the ECJ under these provisions is limited: they have no

locus standi under Articles 169 and 170; their right to initiate actions under Articles 173 and 175 is

restricted as is, consequently, their right under Article 184; and they have no right to bring an action

against another individual.

163. It nevertheless remains the case that actions initiated before the ECJ by the Community

institutions or a member State constitute important control of compliance with Community norms to

the indirect benefit of individuals. Individuals can also bring an action for damages before the ECJ

in respect of the non-contractual liability of the institutions (see paragraph 88 above).

164. Moreover, it is essentially through the national courts that the Community system provides a

remedy to individuals against a member State or another individual for a breach of Community law

(see paragraphs 85 and 91 above). Certain EC Treaty provisions envisaged a complementary role

for the national courts in the Community control mechanisms from the outset, notably Article 189

(the notion of direct applicability, now Article 249) and Article 177 (the preliminary reference

procedure, now Article 234). It was the development by the ECJ of important notions such as the

supremacy of Community law, direct effect, indirect effect and State liability (see paragraphs 92-95

above) which greatly enlarged the role of the domestic courts in the enforcement of Community law

and its fundamental rights guarantees.

The ECJ maintains its control on the application by national courts of Community law, including its

fundamental rights guarantees, through the procedure for which Article 177 of the EC Treaty

provides in the manner described in paragraphs 96 to 99 above. While the ECJ's role is limited to

replying to the interpretative or validity question referred by the domestic court, the reply will often

be determinative of the domestic proceedings (as, indeed, it was in the present case – see paragraph

147 above) and detailed guidelines on the timing and content of a preliminary reference have been

laid down by the EC Treaty provision and developed by the ECJ in its case-law. The parties to the

domestic proceedings have the right to put their case to the ECJ during the Article 177 process. It is

further noted that national courts operate in legal systems into which the Convention has been

incorporated, albeit to differing degrees.

165. In such circumstances, the Court finds that the protection of fundamental rights by

Community law can be considered to be, and to have been at the relevant time, “equivalent” (within

the meaning of paragraph 155 above) to that of the Convention system. Consequently, the

presumption arises that Ireland did not depart from the requirements of the Convention when it

implemented legal obligations flowing from its membership of the European Community (see

paragraph 156 above).

(c) Whether the presumption in question has been rebutted in the present case

166. The Court has had regard to the nature of the interference, to the general interest pursued by

the impoundment and by the sanctions regime and to the ruling of the ECJ (in the light of the

opinion of the Advocate General), a ruling with which the Supreme Court was obliged to and did

comply. It considers it clear that there was no dysfunction of the mechanisms of control of the

observance of Convention rights.

In the Court's view, therefore, it cannot be said that the protection of the applicant company's

Convention rights was manifestly deficient, with the consequence that the relevant presumption of

Convention compliance by the respondent State has not been rebutted.

4. Conclusion under Article 1 of Protocol No. 1

167. It follows that the impoundment of the aircraft did not give rise to a violation of Article 1 of

Protocol No. 1.

FOR THESE REASONS, THE COURT UNANIMOUSLY

1. Dismisses the preliminary objections;

2. Holds that there has been no violation of Article 1 of Protocol No. 1.

Done in English and in French, and delivered at a public hearing in the Human Rights Building,

Strasbourg, on 30 June 2005.

Christos Rozakis

President

Paul Mahoney

Registrar

In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the

following separate opinions are annexed to this judgment:

(a) joint concurring opinion of Mr Rozakis, Mrs Tulkens, Mr Traja, Mrs Botoucharova, Mr

Zagrebelsky and Mr Garlicki;

(b) concurring opinion of Mr Ress.

C.L.R.

P.J.M.

JOINT CONCURRING OPINION OF JUDGES ROZAKIS, TULKENS, TRAJA,

BOTOUCHAROVA, ZAGREBELSKY AND GARLICKI

(Translation)

While we are in agreement with the operative provisions of the judgment, namely that there has

been no violation of Article 1 of Protocol No. 1 in the instant case, we do not agree with all the

steps in the reasoning followed by the majority, nor all aspects of its analysis. Accordingly, we wish

to clarify certain points we consider important.

1. In examining Article 1 of the Convention, the judgment rightly points out, on the basis of the

Court's case-law, that it follows from the wording of that provision that the States Parties must

answer for any infringement of the rights and freedoms protected by the Convention committed

against persons placed under their “jurisdiction” (see paragraph 136). It concludes that the applicant

company's complaint is compatible not only ratione loci (which was not contested) and ratione

personae (which was not in issue) but also ratione materiae with the provisions of the Convention

(see paragraph 137). Thus, the Court clearly acknowledges its jurisdiction to review the

compatibility with the Convention of a domestic measure adopted on the basis of a Community

regulation and, in so doing, departs from the decision of the European Commission of Human

Rights of 9 February 1990 in M. & Co. v. the Federal Republic of Germany (no. 13258/87,

Decisions and Reports 64, p. 138).

It has now been accepted and confirmed that the principle that Article 1 of the Convention makes

“no distinction as to the type of rule or measure concerned” and does “not exclude any part of the

member States' 'jurisdiction' from scrutiny under the Convention” (see United Communist Party of

Turkey and Others v. Turkey, judgment of 30 January 1998, Reports of Judgments and Decisions

1998-I, pp. 17-18, § 29) also applies to Community law. It follows that the member States are

responsible, under Article 1 of the Convention, for all acts and omissions of their organs, whether

these arise from domestic law or from the need to fulfil international legal obligations.

2. In examining the alleged violation of Article 1 of Protocol No. 1, and having determined the

applicable rule and the legal basis for the impugned interference, the Court's task was to examine

whether there was a reasonable relationship of proportionality between the means employed and the

aim sought to be achieved and, consequently, to determine if a fair balance had been struck between

the demands of the general interest

and the interest of the applicant company. By its nature, such a review of proportionality can only

be carried out in concreto.

In the instant case, the judgment adopts a general approach based on the concept of presumption:

“If such [comparable] equivalent protection [of fundamental rights] is considered to be provided by

the organisation, the presumption will be that a State has not departed from the requirements of the

Convention when it does no more than implement legal obligations flowing from its membership of

the organisation. However, any such presumption can be rebutted if, in the circumstances of a

particular case, it is considered that the protection of Convention rights was manifestly deficient”

(see paragraph 156).

3. Even supposing that such “equivalent protection” exists – a finding which, moreover, as the

judgment correctly observes, could not be final and would be susceptible to review in the light of

any relevant change in fundamental rights protection (see paragraph 155) – we are not entirely

convinced by the approach that was adopted in order to establish that such protection existed in the

instant case.

The majority engages in a general abstract review of the Community system (see paragraphs 159-64

of the judgment) – a review to which all the Contracting Parties to the European Convention on

Human Rights could in a way lay claim – and concludes that the protection of fundamental rights

by Community law can be considered to be “equivalent” to that of the Convention system, thereby

enabling the concept of presumption to be brought into play (see paragraph 165).

Needless to say, we do not wish to question that finding. We are fully convinced of the growing role

of fundamental rights and their far-reaching integration into the Community system, and of the

major changes in the case-law taking place in this field. However, it remains the case that the Union

has not yet acceded to the European Convention on Human Rights and that full protection does not

yet exist at European level.

Moreover, as the judgment rightly emphasises, “the effectiveness of such substantive guarantees of

fundamental rights depends on the mechanisms of control in place to ensure observance of such

rights” (see paragraph 160). From this procedural perspective, the judgment minimises or ignores

certain factors which establish a genuine difference and make it unreasonable to conclude that

“equivalent protection” exists in every case.

On the one hand, we have a reference for a preliminary ruling to the European Court of Justice,

made not by the applicant company but by the Supreme Court of Ireland. Such a reference does not

constitute an appeal but a request for interpretation (Article 234 of the EC Treaty). Although the

interpretation of Community law given by the European Court of Justice is binding on the court

which made the referral, the latter retains full discretion in deciding how to apply that ruling in

concreto when resolving the dispute before it. Equally, in its general review of “equivalent

protection”, the judgment should probably have explored further those situations which, admittedly,

do not concern the instant case but in which the European Court of Justice allows national courts a

certain discretion in implementing its judgment and which could become the subject matter of an

application to the European Court of Human Rights. However, it is clear from paragraph 157 of the

judgment and the reference to Cantoni v. France (judgment of 15 November 1996, Reports 1996-

V) that the use of discretion in implementing a preliminary ruling by the European Court of Justice

is not covered by the presumption of “equivalent protection”.

On the other hand, as the judgment itself acknowledges, individuals' access to the Community court

is “limited” (see paragraph 162). Yet, as the Court reiterated in Mamatkulov and Askarov v. Turkey

([GC], nos. 46827/99 and 46951/99, ECHR 2005-I), the right of individual application “is one of

the keystones in the machinery for the enforcement of the rights and freedoms set forth in the

Convention” (see paragraph 122 of that judgment). Admittedly, judicial protection under

Community law is based on a plurality of appeals, among which the reference to the Court of

Justice for a preliminary ruling has an important role. However, it remains the case that, despite its

value, a reference for a preliminary ruling entails an internal, a priori review. It is not of the same

nature and does not replace the external, a posteriori supervision of the European Court of Human

Rights, carried out following an individual application.

The right of individual application is one of the basic obligations assumed by the States on ratifying

the Convention. It is therefore difficult to accept that they should have been able to reduce the

effectiveness of this right for persons within their jurisdiction on the ground that they have

transferred certain powers to the European Communities. For the Court to leave to the Community's

judicial system the task of ensuring “equivalent protection”, without retaining a means of verifying

on a case-by-case basis that that protection is indeed “equivalent”, would be tantamount to

consenting tacitly to substitution, in the field of Community law, of Convention standards by a

Community standard which might be inspired by Convention standards but whose equivalence with

the latter would no longer be subject to authorised scrutiny.

4. Admittedly, the judgment states that such in concreto review would remain possible, since the

presumption could be rebutted if, in the circumstances of a particular case, the Court considered that

“the protection of Convention rights was manifestly deficient” (see paragraph 156).

In spite of its relatively undefined nature, the criterion “manifestly deficient” appears to establish a

relatively low threshold, which is in marked contrast to the supervision generally carried out under

the European Convention on Human Rights. Since the Convention establishes a minimum level of

protection (Article 53), any equivalence between it and the Community's protection can only ever

be in terms of the means, not of the result. Moreover, it seems all the more difficult to accept that

Community law could be authorised, in the name of “equivalent protection”, to apply standards that

are less stringent than those of the European Convention on Human Rights when we consider that

the latter were formally drawn on in the Charter of Fundamental Rights of the European Union,

itself an integral part of the Union's Treaty establishing a Constitution for Europe. Although these

texts have not (yet) come into force, Article II-112(3) of the Treaty contains a rule whose moral

weight would already appear to be binding on any future legislative or judicial developments in

European Union law: “In so far as this Charter contains rights which correspond to rights

guaranteed by the Convention for the Protection of Human Rights and Fundamental Freedoms, the

meaning and scope of those rights shall be the same as those laid down by the said Convention.”

Thus, in order to avoid any danger of double standards, it is necessary to remain vigilant. If it were

to materialise, such a danger would in turn create different obligations for the Contracting Parties to

the European Convention on Human Rights, divided into those which had acceded to international

conventions and those which had not. In another context, that of reservations, the Court has raised

the possibility of inequality between Contracting States and reiterated that this would “run counter

to the aim, as expressed in the Preamble to the Convention, to achieve greater unity in the

maintenance and further realisation of human rights” (Loizidou v. Turkey (preliminary objections),

judgment of 23 March 1995, Series A no. 310, p. 28, § 77).

CONCURRING OPINION OF JUDGE RESS

1. This judgment demonstrates how important it will be for the European Union to accede to the

European Convention of Human Rights in order to make the control mechanism of the Convention

complete, even if this judgment has left the so-called M. & Co. approach far behind (no. 13258/87,

Commission decision of 9 February 1990, Decisions and Reports 64). It has accepted the Court's

jurisdiction ratione loci, personae and materiae under Article 1 of the Convention, clearly departing

from an approach which would declare the European Communities immune, even indirectly, from

any supervision by this Court. On the examination of the merits of the complaint, the question is

whether there exists a reasonable relationship of proportionality between the interference with the

applicant company's property, on the one hand, and the general interest, on the other. On the basis

of its case-law, the Court developed, in particular in Waite and Kennedy v. Germany ([GC], no.

26083/94, ECHR 1999-I), a special ratio decidendi regarding the extent of its scrutiny in cases

concerning international and supranational organisations. I can agree with the result in this case that

there was no violation of Article 1 of Protocol No. 1 and that the interference with the use of the

applicant company's property – in the general interest of safeguarding the sanctions regime of the

United Nations and the European Community – did not go beyond the limits any trading company

must be prepared to accept in the light of that general interest. One could argue that to come to this

conclusion the whole concept of presumed Convention compliance by international organisations,

and in particular by the European Community, was unnecessary and even dangerous for the future

protection of human rights in the Contracting States when they transfer parts of their sovereign

power to an international organisation.

2. The judgment should not be seen as a step towards the creation of a double standard. The

concept of a presumption of Convention compliance should not be interpreted as excluding a case-

by-case review by this Court of whether there really has been a breach of the Convention. I

subscribe to the finding of the Court that there exists within the European Community an effective

protection of fundamental rights and freedoms including those guaranteed by the Convention even

if the access of individuals to the ECJ is rather limited, as the Court has recognised, if not criticised,

in paragraph 162 of the judgment. The Court has not addressed the question of whether this limited

access is really in accordance with Article 6 § 1 of the Convention and whether the provisions, in

particular, of former Article 173 of the EC Treaty should not be interpreted more extensively in the

light of Article 6 § 1 of the Convention, a point that was in issue before both the Court of First

Instance and the ECJ in Jégo-Quéré & Cie S.A. v. Commission of the European Communities (Case

T-177/01 [2002]


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Atreyu

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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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