CASE OF BOSPHORUS HAVA YOLLARI TURİZM VE TİCARET ANONİM ŞİRKETİ v. IRELAND 6 страница

4. It would probably have been possible to elaborate on the various points made in paragraph 166 of the judgment. The very brief reference to the nature of the interference, to the general interest pursued by the impoundment and by the sanctions regime, and to the ECJ's ruling (in the light of the opinion of the Advocate General) should not be seen as an open door through which any future cases where State authorities apply Community law can pass without any further scrutiny. The Court has referred to the fact that there was no dysfunction of the mechanism of control and of the observance of Convention rights. A dysfunction of the observance of Convention rights would arise precisely in those cases where the protection was manifestly deficient in the sense I have tried to explain. It would probably have been useful to explain this in more detail to avoid the impression that member States of the European Community live under a different and more lenient system as regards the protection of human rights and fundamental freedoms of the Convention. In fact, the intensity of control and supervision by the ECHR will not be too different between these States and others (such as Russia or Ukraine) which are not members of the European Community.

5. A general remark is necessary on paragraph 150 of the judgment as regards the interpretation of the Convention “in the light of any relevant rules and principles of international law”, which principles include that of pacta sunt servanda. This cannot be interpreted as giving treaties concluded between the Contracting Parties precedence over the Convention. On the contrary, as the Court recognised in Matthews v. the United Kingdom ([GC], no. 24833/94, ECHR 1999-I), international treaties between the Contracting Parties have to be consistent with the provisions of the Convention. The same is true of treaties establishing international organisations. The importance of international cooperation and the need to secure the proper functioning of international organisations cannot justify Contracting Parties creating and entering into international organisations which are not in conformity with the Convention. Furthermore, international treaties like the Convention may depart from rules and principles of international law normally applicable to relations between the Contracting Parties. Therefore, in Al-Adsani v. the United Kingdom ([GC], no. 35763/97, ECHR 2001-XI, which the Court cited in this connection in its judgment in the present case), the Court's approach to the relationship between different sources of public international law was not the right one. The correct question should have been whether, and to what extent, the Convention guarantees individual access to tribunals in the sense of Article 6 § 1 and whether the Parties could and should have been seen as nevertheless reserving the rule on State immunity. Since the Contracting Parties could have waived their right to rely on State immunity by agreeing to Article 6 § 1 of the Convention, the starting-point should have been the interpretation of Article 6 § 1 alone. Unfortunately this question was never raised. In the present case, the correct approach should have been to examine whether, and to what extent, the Contracting Parties could and should be presumed to have reserved a special position in relation to the Convention for international treaties establishing an international organisation. The Court seems to proceed on the assumption that the Contracting States agreed inherently that the value of international cooperation through international organisations is such that it may prevail to a certain extent over the Convention. I could agree to this conclusion, in principle, if all Contracting Parties to the Convention were also parties to the international organisation in question. However, as Switzerland and Norway show, even from the very beginning of European integration, this has never been the case.

[1]. Reference to the ECJ includes, as appropriate, the Court of First Instance.

[2]. See Stauder v. City of Ulm, Case 29/69 [1969] ECR 419.

[3]. See Internationale Handelsgesellschaft, Case 11/70 [1970] ECR 1125.

[4]. See Nold v. Commission of the European Communities, Case 4/73 [1974] 491.

[5]. See Rutili v. Minister of the Interior, Case 36/75 [1975] ECR 1219; see also paragraph 10 of Opinion no. 256/2003 of the European Commission for Democracy through Law (Venice Commission) on the implications of a legally binding EU Charter of Fundamental Rights on human rights protection in Europe.

[6]. See Hauer v. Land Rheinland-Pfalz, Case 44/79 [1979] ECR 3727.

[7]. See, for example, Hauer, cited above, § 17 (Article 1 of Protocol No. 1); Regina v. Kent Kirk, Case 63/83 [1984] ECR 2689, § 22 (Article 7); Johnston v. Chief Constable of the Royal Ulster Constabulary, Case 222/84 [1986] ECR 1651, § 18 (Articles 6 and 13); Hoechst AG v. Commission of the European Communities, Joined Cases 46/87 and 227/88 [1989] ECR 2859, § 18 (Article 8); Commission of the European Communities v. the Federal Republic of Germany, Case 249/86 [1989] ECR 1263, § 10 (Article 8); ERT v. DEP, Case C-260/89 [1991] ECR I-2925, § 45 (Article 10); Union royale belge des sociétés de football and Others v. Bosman and Others, Case C-415/93 [1995] ECR I-4921, § 79 (Article 11); Philip Morris International, Inc. and Others v. Commission of the European Communities, Joined Cases T-377/00, T-379/00, T-380/00, T-260/01 and T-272/01 [2003] ECR II-1, § 121 (Articles 6 and 13); and Bodil Lindqvist, Case C-101/01 [2003] ECR I-12971, § 90 (Article 10).

[8]. See, for example, Criminal proceedings against X, Joined Cases C-74/95 and C-129/95 [1996] ECR I-6609, § 25 (Article 7); Vereinigte Familiapress Zeitungsverlags- und vertriebs GmbH v. Heinrich Bauer Verlag, Case C-368/95 [1997] ECR I-3689, §§ 25-26 (Article 10); Lisa Jacqueline Grant v. South-West Trains Ltd, Case C-249/96 [1998] ECR I-621, §§ 33-34 (Articles 8, 12 and 14); Baustahlgewebe GmbH v. Commission of the European Communities, Case C-185/95 P [1998] ECR I-8417, §§ 20 and 29 (Article 6); Dieter Krombach v. André Bamberski, Case C-7/98 [2000] ECR I-1935, §§ 39-40 (Article 6); Mannesmannröhren-Werke AG v. Commission of the European Communities, Case T-112/98 [2001] ECR II-729, §§ 59 and 77 (Article 6); Connolly v. Commission of the European Communities, Case C-274/99 [2001] ECR I-1611, § 39 (Article 10); Mary Carpenter v. Secretary of State for the Home Department, Case C-60/00 [2002] ECR I-6279, §§ 41-42 (Article 8); Joachim Steffensen, Case C-276/01 [2003] ECR I-3735,§§ 72 and 75-77 (Article 6); Rechnungshof and Others, Joined Cases C-465/00, C-138/01 and C-139/01 [2003] ECR I-4989, §§ 73-77 and 83 (Article 8); Archer Daniels Midland Company and Archer Daniels Midland Ingredients Ltd v. Commission of the European Communities, Case T-224/00 [2003] ECR II-2597, §§ 39, 85 and 91 (Article 7); Secretary of State for the Home Department v. Hacene Akrich, Case C-109/01 [2003] ECR I-9607, §§ 58-60 (Article 8); K.B. v. National Health Service Pensions Agency and Secretary of State for Health, Case C-117/01 [2004] ECR I-541, §§ 33-35 (Article 12); Herbert Karner Industrie-Auktionen GmbH v. Troostwijk GmbH, Case C-71/02 [2004] ECR I-3025, §§ 50-51 (Article 10); Orfanopoulos and Oliveri v. Land Baden-Württemberg, Joined Cases C-482/01 and C-493/01 [2004] ECR I-5257, §§ 98-99 (Article 8); and JFE Engineering Corp., Nippon Steel Corp., JFE Steel Corp. and Sumitomo Metal Industries Ltd v. Commission of the European Communities, Joined Cases T-67/00, T-68/00, T-71/00 and T-78/00 [2004] ECR II-2501, § 178 (Article 6).

[9]. ERT v. DEP, cited above.

[10]. Accession by the Community to the European Convention for the Protection of Human Rights and Fundamental Freedoms, Opinion 2/94 [1996] ECR I-1759.

[11]. The Queen v. Secretary of State for the Home Department, ex parte Eleanora Ivanova Kondova, Case C-235/99 [2001] ECR I-6427.

[12]. Given the period covered by the facts of the case, the formernumbering of Articles of the EC Treaty is used (followed, where appropriate, by the present numbering).

[13]. Regulations come into force on the date specified therein or, where no such date is specified, twenty days after publication in the Official Journal (Article 191(2), now 254(2)).

[14]. Unión de Pequeños Agricultores v. Council of the European Union, Case C-50/00 P ECR [2002] I-6677.

[15]. See Aktien-Zuckerfabrik Schöppenstedt v. Council of the European Communities, Case 5/71 [1971] ECR 975.

[16]. See Internationale Handelsgesellschaft mbH v. Einfuhr- und Vorratsstelle für Getreide und Futtermittel, Case 11/70 [1970] ECR 1125.

[17]. Laid down in Van Gend en Loos v. Nederlandse Administratie des Belastingen, Case 26/62 [1963] ECR 1.

[18]. See Von Colson and Kamann v. Land Nordrhein-Westfalen, Case 14/83 [1984] ECR 1891, and Marleasing S.A. v. La Comercial Internacional de Alimentación S.A., Case C-106/89 [1990] ECR I-4135.

[19]. Francovich and Others v. Italian Republic, Joined Cases C-6/90 and C-9/90 [1991] ECR I-5357.

[20]. See Brasserie du Pêcheur S.A. v. Bundesrepublik Deutschland and The Queen v. Secretary of State for Transport, ex parte Factortame Ltd and Others, Joined Cases C‑46/93 and C-48/93 [1996] ECR I-1029; see also Gerhard Köbler v. Republik Österreich, Case C-224/01 [2003] ECR I-10239.

[21]. Commission of the European Communities v. Portuguese Republic, Case C-55/02 [2004] ECR I-9387, § 45.

[22]. See Eugen Schmidberger, Internationale Transporte und Planzüge v. Republik Österreich, Case C-112/00 [2003] ECR I-5659.

[23]. S.r.l. CILFIT and Lanificio di Gavardo S.p.a. v. Ministry of Health, Case 283/81 [1982] ECR 3415.

[24]. See Jacob Adlerblum v. Caisse nationale d’assurance vieillesse des travailleurs salariés, Case 93-75 [1975] ECR 2147.

[25]. See Costa v. Ente Nazionale Energia Elettrica (ENEL), Case 6/64 [1964] ECR 585.

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