Article 52 - Scope and interpretation
Key facts of the case:
1) The case originated in an application (no. 45036/98) against Ireland lodged with the European Commission of Human Rights (“the Commission”) under former Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a company incorporated in Turkey, Bosphorus Hava Yolları Turizm (“the applicant company”), on 25 March 1997.
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3) The applicant company alleged that the impounding of its leased aircraft by the respondent State had breached its rights under Article 1 of Protocol No. 1.
11) The applicant company is an airline charter company incorporated in Turkey in March 1992.
12) By an agreement dated 17 April 1992, the applicant company leased two Boeing 737-300 aircraft from Yugoslav Airlines (JAT), the national airline of the former Yugoslavia. These were, at all material times, the only two aircraft operated by the applicant company. The lease agreement was a “dry lease without crew” for a period of forty-eight months from the dates of delivery of the two aircraft (22 April and 6 May 1992). According to the terms of the lease, the crew were to be the applicant company's employees and the applicant company was to control the destination of the aircraft. While ownership of the aircraft remained with JAT, the applicant company could enter the aircraft on the Turkish Civil Aviation Register provided it noted JAT's ownership.
14) From 1991 onwards the United Nations adopted, and the European Community implemented, a series of sanctions against the Federal Republic of Yugoslavia (Serbia and Montenegro) – “the FRY” – designed to address the armed conflict and human rights violations taking place there.
15) In January 1993 the applicant company began discussions with TEAM Aer Lingus (“TEAM”) with a view to having maintenance work (“C-Check”) done on one of its leased aircraft. TEAM was a limited liability company whose principal business was aircraft maintenance. It was a subsidiary of two Irish airline companies wholly owned by the Irish State. Memoranda dated 8 and 18 January 1993 showed that TEAM considered, on the basis of information obtained, that the applicant company was not in breach of the sanctions regime, noting that it was doing business with many companies, including Boeing, Sabena and SNECMA (a French aero-engine company). By a letter of 2 March 1993, TEAM requested the opinion of the Department of Transport, Energy and Communications (“the Department of Transport”) and included copies of its memoranda of January 1993. On 3 March 1993 the Department of Transport forwarded the request to the Department of Foreign Affairs.
16) On 17 April 1993 the United Nations Security Council adopted Resolution 820 (1993), which provided that States should impound, inter alia, all aircraft in their territories “in which a majority or controlling interest is held by a person or undertaking in or operating from the [FRY]”. That resolution was implemented by Regulation (EEC) no. 990/93, which came into force on 28 April 1993 (see paragraph 65 below).
17) On 5 May 1993 the Department of Foreign Affairs decided to refer the matter to the United Nations Sanctions Committee.
18) By a letter of 6 May 1993, the Turkish Foreign Ministry indicated to the Turkish Ministry of Transport that it considered that the leased aircraft were not in breach of the sanctions regime and requested flight clearance pending the Sanctions Committee's decision. On 12 May 1993 Turkey sought the opinion of the Sanctions Committee.
19) On 17 May 1993 one of the applicant company's leased aircraft arrived in Dublin. A contract with TEAM was signed for the completion of C-Check.
23) At noon on 28 May 1993 the applicant company was informed by TEAM that C-Check had been completed and that, on payment of USD 250,000, the aircraft would be released. Later that day payment was received and the aircraft was released. While awaiting air traffic control clearance to take off, the aircraft was stopped. In his report, the duty manager of Dublin Airport noted that TEAM had informed him that it had been advised by the Department of Transport that it would be “in breach of sanctions” for the aircraft to leave. He also stated that the aircraft had been scheduled to depart during that shift and that the airport police had been advised. TEAM informed the applicant company accordingly. (...)
24. By letters dated 29 May 1993 to the applicant company, TEAM noted that it was waiting for the opinion of the Sanctions Committee and that it had been advised by the authorities that release of the aircraft before receipt of that opinion would be in violation of the United Nations sanctions regime.
Outcome of the case:
For these reasons, the Court unanimously
Paragraph referring to the EU Charter in the Court's judgment:
159) The Court has described above (see paragraphs 73-81) the fundamental rights guarantees of the European Community which apply to member States, Community institutions and natural and legal persons (“individuals”). While the founding treaties of the European Communities did not initially contain express provisions for the protection of fundamental rights, the ECJ subsequently recognised that such rights were enshrined in the general principles of Community law protected by it, and that the Convention had a “special significance” as a source of such rights. Respect for fundamental rights has become “a condition of the legality of Community acts” (see paragraphs 73-75 above, together with the opinion of the Advocate General in the present case, paragraphs 45-50 above) and in carrying out this assessment the ECJ refers extensively to Convention provisions and to this Court's jurisprudence. At the relevant time, these jurisprudential developments had been reflected in certain treaty amendments (notably those aspects of the Single European Act of 1986 and of the Treaty on European Union referred to in paragraphs 77-78 above). This evolution has continued. The Treaty of Amsterdam of 1997 is referred to in paragraph 79 above. Although not fully binding, the provisions of the Charter of Fundamental Rights of the European Union were substantially inspired by those of the Convention, and the Charter recognises the Convention as establishing the minimum human rights standards. Article I-9 of the later Treaty establishing a Constitution for Europe (not in force) provides for the Charter to become primary law of the European Union and for the Union to accede to the Convention (see paragraphs 80-81 above).
Paragraphs referring to the EU Charter in the joint concurring opinion of Judges Rozakis, Tulkens, Traja, Botoucharova, Zagrebelsky and Garlicki:
4) Admittedly, the judgment states that such in concreto review would remain possible, since the presumption could be rebutted if, in the circumstances of a particular case, the Court considered that “the protection of Convention rights was manifestly deficient” (see paragraph 156).
In spite of its relatively undefined nature, the criterion “manifestly deficient” appears to establish a relatively low threshold, which is in marked contrast to the supervision generally carried out under the European Convention on Human Rights. Since the Convention establishes a minimum level of protection (Article 53), any equivalence between it and the Community's protection can only ever be in terms of the means, not of the result. Moreover, it seems all the more difficult to accept that Community law could be authorised, in the name of “equivalent protection”, to apply standards that are less stringent than those of the European Convention on Human Rights when we consider that the latter were formally drawn on in the Charter of Fundamental Rights of the European Union, itself an integral part of the Union's Treaty establishing a Constitution for Europe. Although these texts have not (yet) come into force, Article II-112(3) of the Treaty contains a rule whose moral weight would already appear to be binding on any future legislative or judicial developments in European Union law: “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.”
Thus, in order to avoid any danger of double standards, it is necessary to remain vigilant. If it were to materialise, such a danger would in turn create different obligations for the Contracting Parties to the European Convention on Human Rights, divided into those which had acceded to international conventions and those which had not. In another context, that of reservations, the Court has raised the possibility of inequality between Contracting States and reiterated that this would “run counter to the aim, as expressed in the Preamble to the Convention, to achieve greater unity in the maintenance and further realisation of human rights” (Loizidou v. Turkey (preliminary objections), judgment of 23 March 1995, Series A no. 310, p. 28, § 77).
Paragraph referring to the EU Charter in the concurring opinion of Judge Ress:
2) The judgment should not be seen as a step towards the creation of a double standard. The concept of a presumption of Convention compliance should not be interpreted as excluding a case-by-case review by this Court of whether there really has been a breach of the Convention. I subscribe to the finding of the Court that there exists within the European Community an effective protection of fundamental rights and freedoms including those guaranteed by the Convention even if the access of individuals to the ECJ is rather limited, as the Court has recognised, if not criticised, in paragraph 162 of the judgment. The Court has not addressed the question of whether this limited access is really in accordance with Article 6 § 1 of the Convention and whether the provisions, in particular, of former Article 173 of the EC Treaty should not be interpreted more extensively in the light of Article 6 § 1 of the Convention, a point that was in issue before both the Court of First Instance and the ECJ in Jégo-Quéré & Cie S.A. v. Commission of the European Communities (Case T-177/01 [2002] ECR II-2365 (Court of First Instance) and Case C-263/02 P [2004] ECR I-3425 (ECJ)). See also the ECJ's judgment in Unión de Pequeños Agricultores v. Council of the European Union (Case C-50/00 P [2002] ECR I-6677). One should not infer from paragraph 162 of the judgment in the present case that the Court accepts that Article 6 § 1 does not call for a more extensive interpretation. Since the guarantees of the Convention only establish obligations “of result”, without specifying the means to be used, it seems possible to conclude that the protection of fundamental rights, including those of the Convention, by Community law can be considered to have been “equivalent” (see paragraph 165 of the judgment), even if the protection of the Convention by the ECJ is not a direct one but rather an indirect one through different sources of law, namely the general principles of Community law. The criticism has sometimes been made that these general principles of Community law do not, as interpreted by the case-law of the ECJ, fulfil the required standard of protection, as they are limited by considerations of the general public interest of the European Community. This reasoning makes it rather difficult for the ECJ to find violations of these general principles of Community law. The Court's analysis of the “equivalence” of the protection is a rather formal one, and relates only to the procedures of protection and not to the jurisprudence of the ECJ in relation to the various substantive Convention guarantees: a major part of the jurisprudence of the ECJ on the level and intensity of the protection of property rights and the application of Article 1 of Protocol No. 1 is missing. But it is to be expected in future cases that the presumption of Convention compliance should and will be enriched by considerations about the level and intensity of protection of a specific fundamental right guaranteed by the Convention. In my view, one cannot say once and for all that, in relation to all Convention rights, there is already such a presumption of Convention compliance because of the mere formal system of protection by the ECJ. It may be expected that the provisions of the Charter of Fundamental Rights of the European Union, if it comes into force, may enhance and clarify this level of control for the future.
