CASE OF BOSPHORUS HAVA YOLLARI TURİZM VE TİCARET ANONİM ŞİRKETİ v. IRELAND 3 страница

87. According to Article 175 (now Article 232) member States and the Community institutions can also call, among others, the Council, the Commission and the European Parliament to account before the ECJ for a failure to perform their Treaty obligations. Article 184 (now Article 241) allows a plea of illegality of a regulation (adopted jointly by the European Parliament and the Council, by the Council, by the Commission or by the European Central Bank) to be made during proceedings already pending before the ECJ on the basis of another Article: a successful challenge will result in the ECJ declaring its inapplicability inter partes, but not the annulment of the relevant provision.

88. Having legal personality of its own, the European Community can be sued for damages in tort, described as its non-contractual liability. Its institutions will be considered liable for wrongful (illegal or invalid) acts or omissions by the institution (fautes de service) or its servants (fautes personnelles) which have caused damage to the claimant (Articles 178 and 215, now Articles 235 and 288). Unlike actions under Articles 173, 175 and 184 (now Articles 230, 232 and 241), and subject to the various inherent limitations imposed by the elements of the action to be established, there are no personal or locus standi limitations on the right to bring such an action. It can therefore provide an independent cause of action[15] before the ECJ to review the legality of an act or failure to act to those (including individuals) who do not have locus standi under Articles 173 or 175 but who have suffered damage.

(b) Actions against member States

89. Under Article 169 (now Article 226) and Article 170 (now Article 227), both the Commission (in fulfilment of its role as “guardian of the Treaties”) and a member State are accorded, notably, the right to take proceedings against a member State considered to have failed to fulfil its Treaty obligations. If the ECJ finds that a member State has so failed, the State shall be required to take the necessary measures to comply with the judgment of the ECJ (Article 171, now Article 228).The Commission can also take proceedings against a member State in other specific areas of Community regulation (such as State aids – Article 93, now Article 88).

90. There is no provision in the EC Treaty for a direct action before the ECJ against individuals. Individuals may, however, be fined under certain provisions of Community law; such fines may, in turn, be challenged before the ECJ.

2. Indirect actions before the national courts

91. Where individuals seek to assert their Community rights before national courts or tribunals, they may do so in the context of any proceedings of national law, public or private, in which Community rights are relevant, in pursuit of any remedy, final or interim, under national law.

(a) Direct effects

92. The “direct effect” of a provision of Community law means that it confers upon individuals rights and obligations they can rely on before the national courts. A provision with direct effect must not only be applied by the domestic courts, but it will take precedence over conflicting domestic law pursuant to the principle of supremacy of Community law[16]. The conditions for acquiring direct effect are that the provision

“contains a clear and unconditional prohibition which is not a positive but a negative obligation. This obligation, moreover, is not qualified by any reservation on the part of the States which would make its implementation conditional upon a positive legislative measure enacted under national law. The very nature of this prohibition makes it ideally adapted to produce direct effects in the legal relationship between States and their subjects” [17].

93. Certain EC Treaty provisions are considered to have direct effect, whether they impose a negative or positive obligation and certain have been found to have, as well as “vertical” effect (between the State and the individual), a horizontal effect (between individuals). Given the text of Article 189 (now Article 249), the provisions of regulations are normally considered to have direct effect, both vertically and horizontally. Directives and decisions can, in certain circumstances, have vertical direct effect, though recommendations and opinions, having no binding force, cannot generally be relied on by individuals before national courts.

(b) The principles of indirect effect and State liability

94. The rights an individual may claim under Community law are no longer confined to those under directly effective Community provisions: they now include rights based on the principles of indirect effect and State liability developed by the ECJ. According to the principle of “indirect effect” (“interprétation conforme”),a member State's obligations under Article 5 (now Article 10) require its authorities (including the judiciary) to interpret as far as possible national legislation in the light of the wording and purpose of the relevant directive[18].

95. The principle of State liability was first developed in Francovich[19]. The ECJ found that, where a State had failed to implement a directive (whether or not directly effective), it would be obliged to compensate individuals for resulting damage if three conditions were met: the directive conferred a right on individuals; the content of the right was clear from the provisions of the directive itself; and there was a causal link between the State's failure to fulfil its obligation and the damage suffered by the person affected. In 1996 the ECJ extended the notion of State liability to all domestic acts and omissions (legislative, executive and judicial) in breach of Community law provided the conditions for liability were fulfilled[20].

96. In order to assist national courts in correctly implementing Community law and maintaining its uniform application[21], Article 177 (now Article 234) provides national courts with the opportunity to consult the ECJ. In particular, Article 177 reads as follows:

“The Court of Justice shall have jurisdiction to give preliminary rulings concerning:

(a) the interpretation of this Treaty;

(b) the validity and interpretation of acts of the institutions of the Community ...;

...

Where such a question is raised before any court or tribunal of a Member State, that court or tribunal may, if it considers that a decision on the question is necessary to enable it to give judgment, request the Court of Justice to give a ruling thereon.

Where any such question is raised in a case pending before a court or tribunal of a Member State against whose decisions there is no judicial remedy under national law, that court or tribunal shall bring the matter before the Court of Justice.”

97. The ECJ described the nature of this preliminary reference procedure as follows[22]:

“30. ... the procedure provided for by Article 234 EC is an instrument of cooperation between the Court of Justice and national courts by means of which the former provides the latter with interpretation of such Community law as is necessary for them to give judgment in cases upon which they are called to adjudicate ...

31. In the context of that cooperation, it is for the national court seised of the dispute, which alone has direct knowledge of the facts giving rise to the dispute and must assume responsibility for the subsequent judicial decision, to determine in the light of the particular circumstances of the case both the need for a preliminary ruling in order to enable it to deliver judgment and the relevance of the questions which it submits to the Court. Consequently, where the questions submitted concern the interpretation of Community law, the Court of Justice is, in principle, bound to give a ruling ... ”

98. Article 177 distinguishes between domestic courts which have a discretion to refer and those courts of last instance for which referral is mandatory. However, according to the CILFIT[23] judgment, both categories of court must first determine whether an ECJ ruling on the Community law matter is “necessary to enable it to give judgment”, even if the literal meaning of Article 177 would suggest otherwise:

“It follows from the relationship between the second and the third paragraphs of Article 177 that the courts ... referred to in the third paragraph have the same discretion as any other national court ... to ascertain whether a decision on a question of Community law is necessary to enable them to give judgment.”

In CILFIT the ECJ indicated that a court of final instance would not be obliged to make a reference to the ECJ if: the question of Community law was not relevant (namely, if the answer to the question of Community law, regardless of what it may be, could in no way affect the outcome of the case); the provision had already been interpreted by the ECJ, even though the questions in issue were not strictly identical; and the correct application of Community law was so obvious as to leave no scope for reasonable doubt, not only to the national court but also to the courts of the other member States and to the ECJ. This matter was to be assessed in the light of the specific characteristics of Community law, the particular difficulties to which its interpretation gave rise and the risk of divergences in judicial decisions within the Community.

99. Once the reference is made, the ECJ will rule on the question put to it and that ruling is binding on the national court. The ECJ has no power to decide the issue before the national court and cannot therefore apply the provision of Community law to the facts of the particular case in question[24]. The domestic court will decide on the appropriate remedy.

IV. OTHER RELEVANT LEGAL PROVISIONS

A. The Vienna Convention on the Law of Treaties of 1969

100. Article 31 § 1, entitled “General rule of interpretation”, provides that a treaty shall be interpreted “in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in light of its object and purpose”. Article 31 § 3 further provides that, as well as the context, any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation together with any relevant rules of international law applicable in the relations between the parties shall be taken into account.

B. The Irish Constitution

101. The relevant part of Article 29 of the Irish Constitution reads as follows:

“1. Ireland affirms its devotion to the ideal of peace and friendly co-operation amongst nations founded on international justice and morality.

...

3. Ireland accepts the generally recognised principles of international law as its rule of conduct in its relations with other States.

4. 1^o ...

10^o 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 Courtcan 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 applicationshould 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 considersit 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'sinternational 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 ecclesiasticalcourtsof the Rome Vicariatebefore 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.

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