EHRM, 30-06-2005, nr. 45036/98

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

Article 6 (formerly Article F) of the Treaty on European Union of 1992 (‘the TEU’) reads as follows:

The Treaty of Amsterdam 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 the Article 6(1) of the TEU cited directly above.

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

Article 52(3) of the Charter provides:

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

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

Article 5 (now Article 10) provides:

Article 189 (now Article 249), in so far as relevant, reads as follows:

The description of a Regulation as being ‘binding in its entirety’ and ‘directly applicable’ in all Member States means that it takes effect1. in the internal legal orders of Member States without the need for domestic implementation.

Article 234 (now Article 307) reads as follows:

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 EC rights are relevant, in pursuit of any remedy, final or interim, under national law.

The Convention must be interpreted in such a manner as to allow State parties to comply with international obligations so as not to thwart the current trend towards extending and strengthening international co-operation (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 once such organisations offer human rights’ protection equivalent to the Convention. This principle was first outlined in the ‘M. & Co.’ case (see M. & Co v. Germany, no. 13258/87, Commission decision of 9 February 1990, Decisions and Reports (DR) 64, p. 138) and was then endorsed in the case of 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).

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. and Co. doctrine’ described above). If, on the other, the State could as a matter of law exercise independent discretion, this Court was competent. Contrary to the applicant's submission, the cases of Matthews (Matthews v. the United Kingdom[GC], no. 24833/94, ECHR 1999-I), Cantoni (Cantoni v. France, judgment of 15 November 1996, Reports 1996-V) and Hornsby (Hornsby v. Greece, judgment of 19 March 1997, Reports 1997-II) had no application to the present case, concerned as they were with discretionary decisions available to, and taken by, States.

Moreover, the Government considered that Ireland acted out of obligation and that the EC and the UN provided such equivalent protection.

As to the international obligations on the Irish State, the Government argued that it had complied with mandatory obligations derived from UNSC Resolution 820 (1993) and EC Regulation No. 990/93. As a matter of EC law, a regulation left no room for the independent exercise of discretion by the State. The direct effectiveness of EC Regulation 990/93 meant that SI 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 EC Regulation 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, the ECJ authoritatively resolved the present domestic action.

Thereafter for the State to look behind the ECJ ruling, even with a view to its Convention compliance, would be contrary to its obligation of ‘loyal co-operation’ (Article 5, now Article 10, of the EC Treaty — paragraph 82 above) and would undermine the special judicial co-operation between the national court and the ECJ envisaged by Article 177 (now Article 234) of the EC Treaty (paragraphs 96–99 above). As to the applicant'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 (‘AG’), in the ruling of the ECJ and in the second sentence of Article 8 of EC Regulation 990/93 that EC Regulation 990/93 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 to, nevertheless, consider making an award.

Finally, they found unconvincing the applicant's suggestion that the Supreme Court exercised discretion in not taking account of the intervening relaxation of the sanctions regime. If the initial impoundment was lawful (under Article 8 of the EC Regulation 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's aircraft as it had been already lawfully impounded. The terms of EC Regulation 2472/94 were as mandatory and clear as those of EC Regulation 990/93. It was, indeed, for this reason that a second reference to the ECJ raising EC Regulation 2472/94 would have been possible but pointless.

As to the equivalence of the EC 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 present applicant had the opportunity, unlike in the Matthews case, to fully ventilate its claim that its fundamental rights had been breached and the decision of the ECJ was based on a consideration of its property rights. As to the UN, Articles 1(3) and 55 of the UN Charter were recalled 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.

The Government's primary argument was that Ireland's compliance with its international obligations constituted sufficient justification, of itself, for any interference with the applicant's property rights.

Alternatively, the impounding of the aircraft amounted to a lawful and proportionate control of use of the applicant's possessions in the public interest (AGOSI v. the United Kingdom judgment of 24 October 1986, Series A no. 108, § 51 and Air Canada v. the United Kingdom judgment of 5 May 1995, Series A no. 316-A, § 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 UN and EC bodies (the Sanctions Committee and the ECJ) and participating in an international effort to end a conflict.

The Government relied on their submissions in the context of Article 1 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's bona fides, although they maintained that the applicant's innocence would not have rendered the impoundment inconsistent with Article 1 of Protocol No. 1. Finally, they responded to the applicant'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 SI 144 of 1993 had provided.

The applicant considered that the terms of EC Regulation 990/93 and the preliminary reference process 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 upon 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 was not challenging the provisions of EC Regulation 990/93 or the sanctions regime per se, the ‘equivalent protection’ principle of the M. & Co. case was not relevant. On the contrary, the Irish State had been intimately involved in the adoption and application of EC Regulation 990/93 and had, at all material times, a real and reviewable discretion as to the means by which the result required by the EC Regulation could be achieved.

In particular, the applicant considered that the State had impounded the aircraft as a preventative step without a clear UN or EC obligation to do so. It was not obliged to appeal from the High Court judgment of June 1994. The Supreme Court was not required to refer a question to the ECJ (Case 283/81 CILFIT v. Minister for Health[1982] ECR 3415 and this Court's decision in Moosbrugger v. Austria (dec.), no. 44861/98, 25 January 2000). Thereafter, in referring the question it did to the ECJ and since the ECJ could only respond under Article 177 (now Article 234) 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 Convention compatible manner 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 the EC Regulation 2472/94 and the relaxation of the sanctions regime (paragraphs 67–71 above). The applicant noted that certain relevant matters were raised in an affidavit filed on its behalf in the Supreme Court following the ECJ ruling (paragraph 58 above) but that the Supreme Court ignored those points.

The applicant considered its position consistent with the Convention jurisprudence. 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 the above-cited M. & Co.). The Convention organs had on numerous occasions examined the compatibility with the Convention of the discretion exercised by a State in applying EC 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; the above-cited Cantoni v. France and Hornsby v. Greece judgments; Pafitis and Others v. Greece, judgment of 26 February 1998, Reports 1998-I;Matthews v. the United Kingdom, [GC] no. 24833/94, ECHR 1999; S.A. Dangeville v. France, no. 36677/97, judgment of 16 April 2002; and Société Colas Est and Others v. France, no. 37971/97, ECHR 2002-III). The case-law of the ECJ itself supported the applicant's position (Case C-235/99 R v. Secretary of State for the Home Department, ex parte Kondova ([2001] ECR I-6427, § 90), the latter case being the first case in which, according to the applicant, 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 also relied on the Pellegrini v. Italy judgment (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 was to follow the Government's reliance on the above-cited decision of M. & Co. and judgments of Waite and Kennedy v. Germany and Beer and Regan v. Germany, then any Member State of the EC could, according to the applicant, escape its Convention responsibility once its courts referred a question and implemented an ECJ ruling. The percentage of domestic law sourced in the EC is significant and growing and the matters now covered by EC law are increasingly broad and sensitive: to accept that any State act implementing an EC obligation does not fall within the State's Convention responsibility would create an unacceptable lacuna of human rights protection in Europe.

In any event, the applicant argued that the EC did not offer ‘equivalent protection’. The limited role of the ECJ under Article 177 (now Article 234) was 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 amounted to a breach of its property rights. Proceedings against a Member State for action or inaction allegedly in violation of Community law could only be initiated before the ECJ by the European Commission or another Member State and otherwise the individual had to take proceedings in the national courts. A party to such domestic proceedings had no right to an Article 177 (now Article 234) reference, that being a matter for the domestic court. As indicated in the above-cited Kondova case, if an EC provision was considered to infringe the Convention, the national courts and this Court, rather than the ECJ, would be the final arbiters.

For these reasons, the applicant maintained that the above-described exercise of discretion by the Irish authorities as regards the impoundment of its aircraft should be reviewed for its Convention compatibility by this Court.

The applicant 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 same and since the implementing SI No. 144 of 1993, indicating the authority competent to impound, was not adopted until after the impoundment.

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 considered that certain factors distinguished its case from AGOSI and Air Canada. It also considered unjustifiable the situation which pertained after the adoption of EC Regulation 2472/94 (its aircraft remained impounded while those of JAT circulated). Compensation was an important element in the overall justification for the applicant and its absence in a de facto deprivation situation generally amounted to a disproportionate interference especially since the aim of the sanctions regime could have been achieved while paying it compensation. Finally, the applicant made a number of allegations about 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's position, a foreign company innocent of any wrongdoing. In this latter respect, the applicant reaffirmed its bona fides, responded in detail to the Government's allegations of bad faith and pointed out that all courts before which the case was examined confirmed its innocence.

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 EC Regulation and was, as such, incompatible. 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 UN and EC, this Government also relied on the case of M. & Co. arguing that both the UN and the EC 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 UN and EC obligations for Convention compatibility would undermine the legal systems of international organisations and, consequently, the international response to serious international crises.

On the merits of Article 1 of Protocol No. 1, they underlined the importance of the public interest objective pursued by the impoundment.

They considered that, since the complaint was against the EC, 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 EC. The UK relied upon the above-cited case of M. & Co., noting that human rights safeguards within the Community legal order had been further strengthened since the M. & Co. decision was adopted.

On the merits of the complaint under Article 1 of Protocol No. 1, this 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 was an innocent party, this would not render the interference with its property rights disproportionate (see the above-cite AGOSI and Air Canada judgments).

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 EC provisions against the Convention. The application was compatible ratione personae, since the object of the case was not to challenge UN or the EC provisions but rather Ireland's implementation of them. It was compatible ratione materiae because Article 1 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 (cited above). Since neither the UN nor the EC 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.

As to the merits of the complaint under Article 1 of Protocol No. 1, the Institut considered the initial deprivation of the aircraft to be entirely justified but left open the justifiability of the continued retention of the aircraft after October 1994.

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 use (its second paragraph). It is recalled 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 (the AGOSI case, at § 48).

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 lost the benefit of approximately three years of a four-year lease, that loss formed a constituent element of the above-described control on the use of property. It is therefore the second paragraph of Article 1 which is applicable in the present case (the AGOSI case, at §§ 50–51 and Gasus Dosier-und Fördertechnik GmbH v. the Netherlands, judgment of 23 February 1995, Series A no. 306-B, § 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) not therefore requiring separate examination (Gasus Dosier-und Fördertechnik GmbH, §§ 66–74).

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 EC Regulation 990/93.

For the purposes of its examination of this question, the Court recalls 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 judicial organs are better placed to interpret and apply EC 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, 44801/98, § 49, ECHR 2001-II).

While the applicant alluded briefly to the Irish State's role in the EC Council (at paragraph 115 above), the Court notes that the applicant's essential standpoint was that it was not challenging the provisions of the Regulation itself but rather their implementation.

Once adopted, EC Regulation 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 whom 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 S.I. 144 of 1993 did not, as suggested by the applicant, 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 EC Regulation. While the applicant queried which body was competent for the purposes of the Regulation (paragraph 120 above), the Court considers it entirely foreseeable that a Minister for Transport would implement the impoundment powers contained in Article 8 of EC Regulation 990/93.

It is true that the ‘genesis’ of EC Regulation 990/93 was a UNSC Resolution adopted under Chapter VII of the UN 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 AG 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, at paragraph 35 above) and could not therefore have constituted a legal basis for the impoundment by the Minister for Transport of the aircraft.

Accordingly, the Irish authorities rightly considered themselves obliged to impound any departing aircraft to which they considered Article 8 of EC Regulation 990/93 applied. Their decision that it did so apply was later confirmed, inter alia, by the ECJ (paragraphs 54–55 above).

Thereafter, the Court finds persuasive the European Commission's submission that the State's duty of loyal co-operation (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 EC Regulation 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 UN to interpret the UNSC Resolution implemented by the EC Regulation.

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 the CILFIT case (see paragraph 98 above): the answer to the interpretative question put to the ECJ was not clear (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 v. Austria decision (cited and relied upon by the applicant above) that an individual does not per se have a right to a referral.

Secondly, the ECJ ruling was binding on the Supreme Court (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 EC Regulation 990/93 applied to the applicant's aircraft. It is moreover erroneous to suggest, as the applicant 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'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 was not required to discharge the impoundment expenses.

That EC Regulation 990/93 did not admit of an award of compensation was implicit in the findings of the AG and the ECJ (each considered the application of the Regulation to be justified despite the hardship that that 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 EC law (paragraphs 92 and 96 above) prevented the Supreme Court from making such an award. As noted at paragraph 105 above, EC Regulation 2472/94 relaxing the EC sanctions regime 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).

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 EC or Irish law, but rather amounted to compliance by the Irish State with its legal obligations flowing from EC law and, in particular, Article 8 of EC Regulation 990/93.

It follows that the impoundment of the aircraft did not give rise to a violation of Article 1 of Protocol No. 1 to the Convention.