ECH-2005-2-002

a) Council of Europe / b) European Court of Human Rights / c) Grand Chamber / d) 30-06-2005 / e) 45036/98 / f) Bosphorus Hava Yollari Turizm Ve Ticaret Sirketi ("Bosphorus Airways") v. Ireland / g) Reports of Judgments and Decisions of the Court / h) CODICES (English, French).

Keywords of the Systematic Thesaurus:

5.3.39.3.

Fundamental Rights - Civil and political rights - Right to property - Other limitations.

Keywords of the alphabetical index:

Property, enjoyment / Seizure / Embargo / European Communities, institution, act / State, duty to guarantee the protection of fundamental rights and freedoms.

Headnotes:

The protection of fundamental rights by EC law may been considered "equivalent" to that of the European Convention on Human Rights. A presumption arises that a State does not depart from the requirements of the Convention when it implements legal obligations flowing from its membership of the European Union but such a presumption may be rebutted if, in a particular case, the protection of Convention rights was manifestly deficient.

Summary:

In May 1993 an aircraft leased by "Bosphorus Airways", an airline charter company registered in Turkey, from Yugoslav Airlines ("JAT") was seized by the Irish authorities. It had been in Ireland for maintenance by TEAM Aer Lingus, a company owned by the Irish State, and was seized under EC Council Regulation 990/93 which, in turn, had implemented the UN sanctions regime against the Federal Republic of Yugoslavia (Serbia and Montenegro). The applicant's challenge to the retention of the aircraft was initially successful in the High Court, which held in 1994 that Regulation 990/93 was not applicable to the aircraft. However, on appeal, the Supreme Court referred a question under  Treaty to the European Court of Justice (ECJ) on whether the aircraft was covered by Regulation 990/93. The ECJ found that it was and, in its judgment of 1996, the Supreme Court applied the decision of the ECJ and allowed the State's appeal. By that time, the applicant's lease on the aircraft had already expired. Since the sanctions regime against FRY (Serbia and Montenegro) had also been relaxed by that date, the Irish authorities returned the aircraft directly to JAT. The applicant consequently lost approximately three years of its four-year lease of the aircraft, which was the only one ever seized under the relevant EC and UN regulations.

In the application lodged with the Court, the applicant company complained that the manner in which Ireland had implemented the sanctions regime to impound its aircraft had constituted an unjustified interference with its right to peaceful enjoyment of its possessions. It relied on Article 1 Protocol 1 ECHR.

The Court noted that it was not disputed that the impoundment of the aircraft had been implemented by the Irish authorities on its territory following a decision by the Irish Minister for Transport. In such circumstances, the matter fell within the "jurisdiction" of the Irish State within the meaning of Article 1 ECHR. As to the legal basis for the impoundment, the Court observed that EC Regulation 990/93 had been generally applicable and binding in its entirety, thus applying to all Member States, none of which could lawfully depart from any of its provisions. In addition, its direct applicability was not, and could not be, disputed. The Regulation had become part of Irish domestic law with effect from 28 April 1993, when it had been published in the Official Journal, prior to the date of the impoundment and without the need for implementing legislation. The impoundment powers had been entirely foreseeable and the Irish authorities had rightly considered themselves obliged to impound any departing aircraft to which they considered  Regulation 990/93 applied. Their decision that it did so apply had later been confirmed by the ECJ. The Court furthermore agreed with the Irish Government and the European Commission (intervening in the case) that the Supreme Court had no real discretion to exercise in the case, either before or after its preliminary reference to the ECJ. In conclusion, the impugned interference had not been the result of an exercise of discretion by the Irish authorities, either under EC or Irish law, but rather had amounted to compliance by the Irish State with its legal obligations flowing from EC law and, in particular,  Regulation 990/93.

As to the justification of the impoundment, the Court found that the protection of fundamental rights by EC law could have been considered to be, and to have been at the relevant time, "equivalent" to that of the Convention system. Consequently, a presumption arose that Ireland had not departed from the requirements of the Convention when it had implemented legal obligations flowing from its membership of the EC. Such a presumption could be rebutted if, in a particular case, it was 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. The Court took note of the nature of the interference, of the general interest pursued by the impoundment and by the sanctions regime and of the ruling of the ECJ, a ruling with which the Supreme Court had been obliged to comply. It could not be said that the protection of Bosphorus Airways' Convention rights had been manifestly deficient. It followed that the presumption of Convention compliance had not been rebutted and that the impoundment of the aircraft did not give rise to a violation of Article 1 Protocol 1 ECHR.

Cross-references:

­ CFDT v. European Communities, no. 8030/77, Commission decision of 10.07.1978, Decisions and Reports 13, p. 231;

­ AGOSI v. the United Kingdom, Judgment of 24.10.1986, Series A, no. 108;

­ Dufay v. European Communities, no. 13539/88, Commission decision of 19.01.1989;

­ M. & Co v. Germany, no. 13258/87, Commission decision of 09.02.1990, Decisions and Reports 64, p. 138;

­ Gasus Dosier-und Fördertechnik GmbH v. the Netherlands, Judgment of 23.02.1995, Series A, no. 306-B;

­ Drozd and Janousek v. France and Spain, Judgment of 26.06.1992, Series A, no. 240;

­ Loizidou v. Turkey (preliminary objections), Judgment of 23.03.1995, Series A, no. 310;

­ Cantoni v. France, Judgment of 15.11.1996, Reports of Judgments and Decisions 1996-V;

­ United Communist Party of Turkey and Others v. Turkey, Judgment of 30.01.1998, Reports of Judgments and Decisions 1998-I; Bulletin 1998/1 [ECH-1998-1-001];

­ Waite and Kennedy v. Germany [GC], no. 26083/94, Reports of Judgments and Decisions 1999-I; Bulletin 1999/1 [ECH-1999-1-005];

­ Matthews v. the United Kingdom [GC], no. 24833/94, Reports of Judgments and Decisions 1999-I; Bulletin 1999/1 [ECH-1999-1-004];

­ Moosbrugger v. Austria (dec.), no. 44861/98, 25.01.2000;

­ Streletz, Kessler and Krenz v. Germany [GC], nos. 34044/96, 35532/97 and 44801/98, Reports of Judgments and Decisions 2001-II; Bulletin 2001/1 [ECH-2001-1-002];

­ Prince Hans-Adam II of Liechtenstein v. Germany [GC], no. 42527/98, Reports of Judgments and Decisions 2001-VIII; Bulletin 2001/2 [ECH-2001-2-006];

­ Pellegrini v. Italy, no. 30882/96, Reports of Judgments and Decisions 2001-VIII;

­ Al-Adsani v. the United Kingdom [GC], no. 35763/97, Reports of Judgments and Decisions 2001-XI; Bulletin 2002/1 [ECH-2002-1-002];

­ Stretch v. the United Kingdom, no. 44277/98, 24.06.2003;

­ S.A. Dangeville v. France, no. 36677/97, Reports of Judgments and Decisions 2002-III; Bulletin 2002/1 [ECH-2002-1-005];

­ Gentilhomme, Schaff-Benhadji and Zerouki v. France, Judgment of 14.05.2002;

­ Bankovic and Others v. Belgium and 16 other Contracting States (dec.), no. 52207/99, Reports of Judgments and Decisions 2001-XII;

­ Assanidze v. Georgia, no. 71503/01, Reports of Judgments and Decisions 2004-II; Bulletin 2004/1 [ECH-2004-1-002];

­ Ilascu and Others v. Moldova and Russia [GC], no. 48787/99, Reports of Judgments and Decisions 2004-VII.

Languages:

English, French.