CASE OF BOSPHORUS HAVA YOLLARI TURİZM VE TİCARET ANONİM ŞİRKETİ v. IRELAND 2 страница

53. It did not accept the applicant company's first argument that Regulation (EEC) no. 990/93 did not apply because of the control on a daily basis of the aircraft by an innocent non-FRY party. Having considered the wording of Regulation (EEC) no. 990/93, its context and aims (including the text and aims of the United Nations Security Council resolutions it implemented), it found nothing to support the distinction made by the applicant company. Indeed, the use of day-to-day operation and control as opposed to ownership as a criterion for applying the regulation would jeopardise the effectiveness of the sanctions.

54. The applicant company's second argument was that the application of Regulation (EEC) no. 990/93 would infringe its right to peaceful enjoyment of its possessions and its freedom to pursue a commercial activity because it would destroy and obliterate the business of a wholly innocent party when the FRY owners had already been punished by having their bank accounts blocked. The ECJ did not find this persuasive:

“It is settled case-law that the fundamental rights invoked by [the applicant company] are not absolute and their exercise may be subject to restrictions justified by objectives of general interest pursued by the Community (see [the above-cited Hauer case]; Case 5/88, Wachauf v. Bundesamt fuer Ernaehrung und Forstwirtschaft [1989] ECR 2609; and Case C-280/93, Germany v. Council [1994] ECR I-4973).

Any measure imposing sanctions has, by definition, consequences which affect the right to property and the freedom to pursue a trade or business, thereby causing harm to persons who are in no way responsible for the situation which led to the adoption of the sanctions.

Moreover, the importance of the aims pursued by the regulation at issue is such as to justify negative consequences, even of a substantial nature, for some operators.

The provisions of [Regulation (EEC) no. 990/93] contribute in particular to the implementation at Community level of the sanctions against the [FRY] adopted, and later strengthened, by several resolutions of the Security Council of the United Nations. ...

It is in the light of those circumstances that the aim pursued by the sanctions assumes a special importance, which is, in particular, in terms of [Regulation (EEC) no. 990/93] and more especially the eighth recital in the preamble thereto, to dissuade the [FRY] from 'further violating the integrity and security of the Republic of Bosnia-Herzegovina and to induce the Bosnian Serb party to cooperate in the restoration of peace in this Republic'.

As compared with an objective of general interest so fundamental for the international community, which consists in putting an end to the state of war in the region and to the massive violations of human rights and humanitarian international law in the Republic of Bosnia-Herzegovina, the impounding of the aircraft in question, which is owned by an undertaking based in or operating from the [FRY], cannot be regarded as inappropriate or disproportionate.”

55. The answer to the Supreme Court's question was therefore:

“Article 8 of Council Regulation (EEC) no. 990/93 of 26 April 1993 concerning trade between the European Economic Community and the [FRY] applies to an aircraft which is owned by an undertaking based in or operating from the [FRY], even though the owner has leased it for four years to another undertaking, neither based in nor operating from [the FRY] and in which no person or undertaking based in or operating from [the FRY] has a majority or controlling interest.”

56. On 6 August 1996 the Minister reinstated the impounding of the aircraft under Article 8 of Regulation (EEC) no. 990/93.

H. The first and second judicial review proceedings: judgments of the Supreme Court

57. By a notice of motion dated 29 October 1996, the applicant company applied to the Supreme Court for, inter alia, an order determining the action “in the light of the decision of the [ECJ]” and for an order providing for the costs of the Supreme Court and ECJ proceedings. The grounding affidavit of the applicant company of the same date stressed its bona fides, the benefit of having had the ECJ examine the regulation for the first time, the fact that ultimate responsibility for its predicament lay with the FRY authorities and that its operations had been destroyed by the impoundment. It referred to Regulation (EC) no. 2815/95, noting that it did not allow aircraft already impounded to fly whereas those not previously impounded could do so. Since its aircraft was the only one impounded under the sanctions regime, no other lessee could have initiated the action it had in order to clarify the meaning of the relevant regulation.

58. On 29 November 1996 the Supreme Court delivered its judgment allowing the appeal of the Minister for Transport from the order of the High Court of 21 June 1994. It noted that the sole issue in the case was whether the Minister had been bound by Article 8 of Regulation (EEC) no. 990/93 to impound the aircraft. Having noted the answer of the ECJ, the Supreme Court simply stated that it was bound by that decision and the Minister's appeal was allowed.

59. In May 1998 the Supreme Court allowed the appeal from the order of the High Court of 22 January 1996. Given the intervening rulings of the ECJ and of the Supreme Court (of July and November 1996, respectively), the appeal was moot since, from the date of the initial order of impoundment, the aircraft had been lawfully detained under Article 8 of Regulation (EEC) no. 990/93. There was no order as to costs.

I. The return of the aircraft to JAT

60. The applicant company's leases on both aircraft had expired by May 1996 (see paragraph 12 above). Further to the judgment of the Supreme Court of November 1996 (see paragraph 58 above) and given the relaxation of the sanctions regime (see paragraphs 67-71 below), JAT and the Minister for Transport reached an agreement in July 1997 concerning the latter's costs. JAT deposited 389,609.95 Irish pounds into a blocked account in the joint names of the Chief State Solicitor and its solicitors to cover all parking, maintenance, insurance and legal costs of the Minister for Transport associated with the impoundment. On 30 July 1997 the aircraft was returned to JAT.

II. THE SANCTIONS REGIME: THE RELEVANT PROVISIONS

A. Setting up the sanctions regime

61. In September 1991 the United Nations Security Council (UNSC) adopted a Resolution (Resolution 713 (1991)) under Chapter VII of its Charter by which it expressed concern about the conflict in the former Yugoslavia and implemented a weapons and military embargo. UNSC Resolution 724 (1991), adopted in December 1991, established a Sanctions Committee to administer the relevant resolutions of the United Nations Security Council.

62. The relevant parts of UNSC Resolution 757 (1992), adopted on 30 May 1992, provided as follows:

“5. Decides further that no State shall make available to the authorities in the [FRY] or to any commercial, industrial or public utility undertaking in the [FRY], any funds, or any other financial or economic resources and shall prevent their nationals and any persons within their territories from removing from their territories or otherwise making available to those authorities or to any such undertaking any such funds or resources and from remitting any other funds to persons or bodies within the [FRY], except payments exclusively for strictly medical or humanitarian purposes and foodstuffs;

...

7. Decides that all States shall:

(a) Deny permission to any aircraft to take off from, land in or overfly their territory if it is destined to land in or has taken off from the territory of the [FRY], unless the particular flight has been approved, for humanitarian or other purposes consistent with the relevant resolutions of the Council, by the [Sanctions Committee];

(b) Prohibit, by their nationals or from their territory, the provision of engineering or maintenance servicing of aircraft registered in the [FRY] or operated by or on behalf of entities in the [FRY] or components for such aircraft, the certification of airworthiness for such aircraft, and the payment of new claims against existing insurance contracts and the provision of new direct insurance for such aircraft;

...

9. Decides further that all States, and the authorities in the [FRY], shall take the necessary measures to ensure that no claim shall lie at the instance of the authorities in the [FRY], or of any person or body in the [FRY], or of any person claiming through or for the benefit of any such person or body, in connection with any contract or other transaction where its performance was affected by reason of the measures imposed by the present resolution and related resolutions;”

The resolution was implemented in the European Community by a Council regulation of June 1992 (Regulation (EEC) no. 1432/92), which was in turn implemented in Ireland by statutory instrument: the European Communities (Prohibition of Trade with the Republics of Serbia and Montenegro) Regulations 1992 (Statutory Instrument no. 157 of 1992) made it an offence under Irish law from 25 June 1992 to act in breach of Regulation (EEC) no. 1432/92.

63. UNSC Resolution 787 (1992), adopted in November 1992, further tightened the economic sanctions against the FRY. This resolution was implemented by Regulation (EEC) no. 3534/92, adopted in December 1992.

64.UNSC Resolution 820 (1993), adopted on 17 April 1993, provided, inter alia, as follows:

“24. Decides that all States shall impound all vessels, freight vehicles, rolling stock and aircraft in their territories in which a majority or controlling interest is held by a person or undertaking in or operating from the [FRY] and that these vessels, freight vehicles, rolling stock and aircraft may be forfeit to the seizing State upon a determination that they have been in violation of resolutions 713 (1991), 757 (1992), 787 (1992) or the present resolution;”

65. This resolution was implemented by Regulation (EEC) no. 990/93, which came into force on 28 April 1993, once published in the Official Journal (L 102/14 (1993)) of that date (as specified in Article 13 of the regulation) pursuant to Article 191(2) (now Article 254(2)) of the Treaty establishing the European Community (“the EC Treaty”).

Articles 1.1(e) and 8 to 10 of that regulation provided as follows:

Article 1

“1. As from 26 April 1993, the following shall be prohibited:

...

(e) the provision of non-financial services to any person or body for purposes of any business carried out in the Republics of Serbia and Montenegro.”

Article 8

“All vessels, freight vehicles, rolling stock and aircraft in which a majority or controlling interest is held by a person or undertaking in or operating from the [FRY] shall be impounded by the competent authorities of the Member States.

Expenses of impounding vessels, freight vehicles, rolling stock and aircraft may be charged to their owners.”

Article 9

“All vessels, freight vehicles, rolling stock, aircraft and cargoes suspected of having violated, or being in violation of Regulation (EEC) no. 1432/92 or this Regulation shall be detained by the competent authorities of the Member States pending investigations.”

Article 10

“Each Member State shall determine the sanctions to be imposed where the provisions of this [Regulation] are infringed.

Where it has been ascertained that vessels, freight vehicles, rolling stock, aircraft and cargoes have violated this Regulation, they may be forfeited to the Member State whose competent authorities have impounded or detained them.”

66. On 4 June 1993 the Irish Minister for Tourism and Tradeadopted the European Communities (Prohibition of Trade with the Federal Republic of Yugoslavia (Serbia and Montenegro)) Regulations 1993 (Statutory Instrument no. 144 of 1993), the relevant part of which provided as follows:

“3. A person shall not contravene a provision of [Regulation (EEC) no. 990/93].

4. A person who, on or after the 4th day of June, 1993, contravenes Regulation 3 of these Regulations shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding £1,000 or to imprisonment for a term not exceeding 12 months or to both.

5. The Minister for Transport, Energy and Communications shall be the competent authority for the purpose of Articles 8 and 9 of [Regulation (EEC) no. 990/93] except in so far as the said Article 8 relates to vessels and the said Article 9 relates to cargoes.

6. (1) The powers conferred on the Minister for Transport, Energy and Communications by Articles 8 and 9 of [Regulation (EEC) no. 990/93] as the competent authority for the purposes of those Articles may be exercised by –

(a) members of the Garda Síochána,

(b) officers of customs and excise,

(d) Officers of the Minister for Transport ... duly authorised in writing by the Minister for Transport, Energy and Communications in that behalf.

...

(3) A person shall not obstruct or interfere with a person specified in sub-paragraph (a), (b) or (c) of paragraph (1) of this Regulation, or a person authorised as aforesaid, in the exercise by him of any power aforesaid.

(4) A person who, on or after the 4th day of June, 1993, contravenes sub-paragraph (3) of this Regulation shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding £500 or to imprisonment for a term not exceeding 3 months or to both.

7. Where an offence under Regulation 4 or 6 of these Regulations is committed by a body corporate and is proved to have been so committed with the consent, connivance or approval of or to have been attributable to any neglect on the part of any person, being a director, manager, secretary or other officer of the body corporate or a person who was purporting to act in any such capacity, that person as well as the body corporate, shall be guilty of an offence and shall be liable to be proceeded against and punished as if he were guilty of the first-mentioned offence.”

B. Lifting the sanctions regime

67. UNSC Resolution 943 (1994), adopted on 23 September 1994, provided, inter alia, as follows:

“(i) the restrictions imposed by paragraph 7 of Resolution 757 (1992), paragraph 24 of Resolution 820 (1993) with regard to aircraft which are not impounded at the date of adoption of this Resolution, ...

shall be suspended for an initial period of 100 days from the day following the receipt ... of a report from the Secretary-General ...”

This resolution was implemented by Regulation (EC) no. 2472/94 of 10 October 1994, Article 5 of which suspended the operation of Article 8 of Regulation (EEC) no. 990/93 “with regard to aircraft ... which had not been impounded at 23 September 1994”.

68. The suspension of UNSC Resolution 820 (1993) was extended further by periods of 100 days on numerous occasions in 1995, and these resolutions were each implemented by Community regulations.

69. UNSC Resolution 820 (1993) was suspended indefinitely in 1995 by Resolution 1022 (1995). It was implemented in the Community by Regulation (EC) no. 2815/95 of 4 December 1995 which provided, inter alia, as follows:

“1. [Regulation (EEC) no. 990/93] is hereby suspended with regard to the [FRY].

2. As long as [Regulation (EEC) no. 990/93] remains suspended, all assets previously impounded pursuant to that Regulation may be released by Member States in accordance with the law, provided that any such assets that are subject to any claims, liens, judgments, or encumbrances, or which are the assets of any person, partnership, corporation or other entity found or deemed to be insolvent under the law or the accounting principles prevailing in the relevant Member State, shall remain impounded until released in accordance with the applicable law.”

70. UNSC Resolution 820 (1993) was later definitively suspended. That suspension was implemented by Regulation (EC) no. 462/96 of 27 February 1996, the relevant part of which provided as follows:

“As long as the Regulations [inter alia, Regulation (EEC) no. 990/93] remain suspended, all funds and assets previously frozen or impounded pursuant to those Regulations may be released by Member States in accordance with law, provided that any such funds or assets that are subject to any claims, liens, judgments or encumbrances, ... shall remain frozen or impounded until released in accordance with the applicable law.”

71. On 9 December 1996 Regulation (EC) no. 2382/96 repealed, inter alia, Regulation (EEC) no. 990/93. On 2 March 2000 the European Communities (Revocation of Trade Sanctions concerning the Federal Republic of Yugoslavia (Serbia and Montenegro) and Certain Areas of the Republics of Croatia and Bosnia-Herzegovina) Regulations 2000 (Statutory Instrument no. 60 of 2000) repealed Statutory Instrument no. 144 of 1993.

III. RELEVANT COMMUNITY LAW AND PRACTICE

72. This judgment is concerned with the provisions of Community law of the “first pillar” of the European Union.

A. Fundamental rights: case-law of the ECJ[1]

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[2]. By the early 1970s the ECJ had confirmed that, in protecting such rights, it was inspired by the constitutional traditions of the member States[3] and by the guidelines supplied by international human rights treaties on which the member States had collaborated or to which they were signatories[4]. The Convention's provisions were first explicitly referred to in 1975[5], and by 1979 its special significance amongst international treaties on the protection of human rights had been recognised by the ECJ[6]. Thereafter the ECJ began to refer extensively to Convention provisions (sometimes where the Community legislation under its consideration had referred to the Convention)[7] and latterly to this Court's jurisprudence[8], 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[9]:

“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[10], in which it opined, in particular, that respect for human rights was “a condition of the lawfulness of Community acts”.

76. In Kondova[11], relied on by the applicant company, the ECJ ruled on the refusal by the United Kingdom of an establishment request of a Bulgarian national on the basis of a provision in an association agreement between the European Community and Bulgaria:

“... Moreover, such measures [of the British immigration authorities] must be adopted without prejudice to the obligation to respect that national's fundamental rights, such as the right to respect for his family life and the right to respect for his property, which follow, for the Member State concerned, from the European Convention for the Protection of Human Rights and Fundamental Freedoms of 4 November 1950 or from other international instruments to which that State may have acceded.”

B. Relevant treaty provisions[12]

1. Concerning fundamental rights

77. The case-law developments noted above were reflected in certain treaty amendments. In the preamble to the Single European Act of 1986, the Contracting Parties expressed their determination

“to work together to promote democracy on the basis of the fundamental rights recognised in the constitutions and laws of the Member States, in the Convention for the Protection of Human Rights and Fundamental Freedoms ...”.

78. Article 6 (formerly Article F) of the Treaty on European Union of 1992 reads as follows:

“1. The Union is founded on the principles of liberty, democracy, respect for human rights and fundamental freedoms, and the rule of law, principles which are common to the Member States.

2. The Union shall respect fundamental rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms signed in Rome on 4 November 1950 and as they result from the constitutional traditions common to the Member States, as general principles of Community law.

3. The Union shall respect the national identities of its Member States.

4. The Union shall provide itself with the means necessary to attain its objectives and carry through its policies.”

79. The Treaty of Amsterdam of 1997 required the ECJ, in so far as it had jurisdiction, to apply human rights standards to acts of Community institutions and gave the European Union the power to act against a member State that had seriously and persistently violated the principles of Article 6(1) of the Treaty on European Union, cited above.

80. The Charter of Fundamental Rights of the European Union, proclaimed in Nice on 7 December 2000 (not fully binding),states in its preamble that it

“reaffirms, with due regard for the powers and tasks of the Community and the Union and the principle of subsidiarity, the rights as they result, in particular, from the constitutional traditions and international obligations common to the Member States, the Treaty on European Union, the Community Treaties, the European Convention for the Protection of Human Rights and Fundamental Freedoms, the Social Charters adopted by the Community and by the Council of Europe and the case-law of the Court of Justice of the European Communities and of the European Court of Human Rights”.

Article 52 § 3 of the Charter provides:

“In so far as this Charter contains rights which correspond to rights guaranteed by the Convention for the Protection of Human Rights and Fundamental Freedoms, the meaning and scope of those rights shall be the same as those laid down by the said Convention. This provision shall not prevent Union law providing more extensive protection.”

81. The Treaty establishing a Constitution for Europe, signed on 29 October 2004 (not in force),provides in its Article I-9 entitled “Fundamental Rights”:

“1. The Union shall recognise the rights, freedoms and principles set out in the Charter of Fundamental Rights which constitutes Part II.

2. The Union shall accede to the European Convention for the Protection of Human Rights and Fundamental Freedoms. Such accession shall not affect the Union's competences as defined in the Constitution.

3. Fundamental rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms and as they result from the constitutional traditions common to the Member States, shall constitute general principles of the Union's law.”

The Charter of Fundamental Rights cited above has been incorporated as Part II of this constitutional treaty.

2. Other relevant provisions of the EC Treaty

82. Article 5 (now Article 10) provides:

“Member States shall take all appropriate measures, whether general or particular, to ensure fulfilment of the obligations arising out of this Treaty or resulting from action taken by the institutions of the Community. They shall facilitate the achievement of the Community's tasks.

They shall abstain from any measure which could jeopardise the attainment of the objectives of this Treaty.”

83. The relevant part of Article 189 (now Article 249) reads as follows:

“A regulation shall have general application. It shall be binding in its entirety and directly applicable in all Member States. ...”

The description of a regulation as being “binding in its entirety” and “directly applicable” in all member States means that it takeseffect[13] in the internal legal orders of member States without the need for domestic implementation.

84. Article 234 (now Article 307) reads as follows:

“The rights and obligations arising from agreements concluded before 1 January 1958 or, for acceding States, before the date of their accession, between one or more Member States on the one hand, and one or more third countries on the other, shall not be affected by the provisions of this Treaty.

To the extent that such agreements are not compatible with this Treaty, the Member State or States concerned shall take all appropriate steps to eliminate the incompatibilities established. Member States shall, where necessary, assist each other to this end and shall, where appropriate, adopt a common attitude.

In applying the agreements referred to in the first paragraph, Member States shall take into account the fact that the advantages accorded under this Treaty by each Member State form an integral part of the establishment of the Community and are thereby inseparably linked with the creation of common institutions, the conferring of powers upon them and the granting of the same advantages by all the other Member States.”

C. The European Community control mechanisms

85. As regards the control exercised by the ECJ and national courts, the ECJ has stated as follows:

“39. Individuals are ... entitled to effective judicial protection of the rights they derive from the Community legal order, and the right to such protection is one of the general principles of law stemming from the constitutional traditions common to the Member States. That right has also been enshrined in Articles 6 and 13 of the European Convention for the Protection of Human Rights and Fundamental Freedoms ...

40. By Article 173 and Article 184 (now Article 241 EC), on the one hand, and by Article 177, on the other, the Treaty has established a complete system of legal remedies and procedures designed to ensure judicial review of the legality of acts of the institutions, and has entrusted such review to the Community Courts ... Under that system, where natural or legal persons cannot, by reason of the conditions for admissibility laid down in the fourth paragraph of Article 173 of the Treaty, directly challenge Community measures of general application, they are able, depending on the case, either indirectly to plead the invalidity of such acts before the Community Courts under Article 184 of the Treaty or to do so before the national courts and ask them, since they have no jurisdiction themselves to declare those measures invalid ..., to make a reference to the Court of Justice for a preliminary ruling on validity.

41. Thus it is for the Member States to establish a system of legal remedies and procedures which ensure respect for the right to effective judicial protection.

42. In that context, in accordance with the principle of sincere cooperation laid down in Article 5 of the Treaty, national courts are required, so far as possible, to interpret and apply national procedural rules governing the exercise of rights of action in a way that enables natural and legal persons to challenge before the courts the legality of any decision or other national measure relative to the application to them of a Community act of general application, by pleading the invalidity of such an act.”[14]

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)).

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