ITEMID: 001-75547
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: ADMISSIBILITY
DATE: 2006
DOCNAME: McBRIDE v. THE UNITED KINGDOM
IMPORTANCE: 1
CONCLUSION: Inadmissible
JUDGES: Josep Casadevall;Nicolas Bratza
TEXT: The applicant, Ms Jean McBride, is an Irish citizen who was born in 1952 and lives in Castlewellan. She was represented before the Court by Mr G. Hyland, a solicitor lawyer practising in Belfast.
The applicant’s son Peter McBride died on 4 September 1992. He was shot dead by two serving soldiers with the 1st Battalion Scots Guards (Guardsmen Mark Wright and James Fisher). On 10 February 1995 Mr Wright and Mr Fisher were convicted of his murder and sentenced to life imprisonment.
At trial both guardsmen had raised a number of defences including self-defence/defence of others and the reasonable use of force to effect an arrest.
In his judgment (which ran to 126 pages) the trial judge (Kelly LJ) rejected all of their defences and convicted the two guardsmen of murder. He said:
“The whole image of the case most strongly depicted nothing more than that of a cheeky young man after an impudent and improper confrontation with Sergeant Swift running away as hard as he possibly could, running to escape being caught by pursuing soldiers, because of this impropriety and nothing more. That picture did not suggest a young man wandering around the district with a bomb in a bag and then when stopped and checked out for a few minutes running off with it, intending to throw it if need be. Nor did it suggest a plan, even a last minute plan to lead a patrol into a trap or ambush from behind a car. All the evidence underlined the fact that the deceased was running away from his pursuers increasing the distance between them, intent on shaking them off and incidentally increasing the range of any throwing distance of a coffee jar bomb.
As a witness Fisher was far from impressive. He became evasive and then untruthful as soon as he grasped the adverse significance of a point in cross-examination. I have already referred to some of these. His general demeanour when giving evidence did nothing, I am afraid, to lodge with me the possibility that he really believed at any time that he or his comrades were under threat from the deceased or anyone else. In addition his case raised very many improbabilities, the sum of which pointed to the same conclusion.
On the issue as to whether Fisher’s case is a false one or not, I gain very much assistance from the acts and omissions at the scene itself that immediately followed the shooting by the participants. They are done and said or not done or said by those who participated in the events and when they are said or done they contain a spontaneity and lack of calculation that gives them credibility. And when they are not said or done I attach great significance to that. Accordingly I put the following omissions in this category, the absence of any attempt to recover a coffee jar bomb, the failure by Fisher to mention or warn of its suspected existence to others and the failure by him when asked by the police constable what happened to say something like ‘he’s got a bomb’. These point strongly to the absence of any belief by Fisher that the deceased was or might have been armed.
The events the accused Fisher had to deal with took place in daylight, on a bright morning in early September, with the suspect on foot retreating from him at all times and increasing the distance between them and over a distance of parts of three streets. It was not a panic situation which required split second decision or split second action, if any action at all. These circumstances must be contrasted with a soldier who is suddenly confronted on a dark night with a danger that advances to him or is directed at him, from the cover of a moving vehicle or a place of concealment. That may be a quite different situation.
As in the case of Fisher, the events of this early September morning did not, or could not, in my opinion have put Wright in any panic situation or in any situation which called for split second reaction. The chase after the deceased was merely to catch and detain. Wright had him under observation for a considerable period and over a comparatively long distance in these circumstances. During all the time Wright had him in his vision, he was running away from Wright and increasing the distance between them. For the greater part of this time, he posed no threat to Wright as Wright admitted. Realising he could not catch him, as he must have done, he could have broken off the chase for he believed Sergeant Swift had taken his name and address. The first shot which Wright believed came from the deceased, did not strike Wright, and after it had been fired, the deceased kept on running. Wright had then time to stop and reflect and take cover in a doorway and allow the deceased, for the time being at least, to get away.
On the totality of the evidence, including my assessment of his credibility, my consequent disbelief of crucial parts of his case of self-defence and the prevention of crime, the numerous improbabilities of the truth of that case that the evidence indicates, I am satisfied beyond reasonable doubt that there was no reasonable possibility that Guardsman Fisher held or may have held an honest belief or indeed any belief that the deceased carried or may have carried a coffee jar bomb or that he was about to be attacked or his life was in danger. Therefore I find the Crown case proved beyond reasonable doubt that his case of the use of necessary force in self-defence or in the prevention of crime was false and made up.
On all the evidence I was satisfied beyond reasonable doubt that there was no reasonable possibility that Wright held or may have held an honest belief or indeed any belief that the deceased fired a gun at him or that his life was or those of his comrades were in danger or had been put in danger by the deceased and that this was the situation when Wright fired his shots.
Each of the accused clearly fired their aimed shots at the deceased with intent to kill or cause him grievous bodily harm. Wright admitted he intended to kill, but Fisher was reluctant to go that far and admitted he intended to cause really serious bodily harm. If it could be said that Fisher and Wright in shooting at the deceased with that intent were each carrying out the command of their sergeant to “Grab him”, that is, to effect his arrest, then I would have no difficulty in concluding that to fire aimed shots at an unarmed man, carrying neither bomb nor gun, was beyond reasonable doubt, unreasonable force. I would hold the same position when there was no reasonable possibility that either Wright or Fisher honestly held the belief that he was armed.
There was no possible justification for either of the accused to shoot at the deceased.”
The guardsmen appealed against their conviction to the NI Court of Appeal. That appeal was dismissed by way of judgment delivered on 15 December 1995. The Court said:
“We consider that the evidence clearly established that when they fired the appellants were acting in concert and shared a common intention to stop the deceased by shooting him.”
Their application for leave to appeal to the House of Lords was refused on 8 March 1996.
In June 1998, the matter of the discharge of Guardsmen Wright and Fisher from the army was referred to an Army Board under Queen’s Regulations 9.404(d) which provided that where a soldier had been sentenced to imprisonment by a civil court he should be dismissed unless there were exceptional reasons to retain him. The Board considered that, while it accepted the decisions of the trial and appeal courts, the guardsmen had shown contrition for their action which they admitted was an error of judgment which they very much regretted and having regard, inter alia, to the Army’s responsibility for their training, their loyalty to the Army and previously unblemished records, found that there were exceptional circumstances justifying their retention in the army.
The guardsmen spent 6 years in custody and after their release from prison, continued to serve as soldiers. In addition, the time spent in custody by them did not, in fact, have any adverse impact on their military careers as it has been included in the computation of various benefits based on time served in the Army.
The applicant brought judicial review proceedings challenging the Army Board decision (Re Jean McBride’s Application for Judicial Review [1999] NI 299). On 3 September 1999, Mr Justice Kerr found that the reasons given by the Army Board for its decision conflicted with the findings of the trial judge, in particular as it was clear from the trial judge’s judgment that the killing was not the result of an “error of judgment” by the two soldiers. He indicated that the matter should be considered afresh.
On 21 November 2000, after receiving written representations from the applicant’s solicitors, Amnesty International, the Northern Ireland Human Rights Commission and the Committee for the Administration of Justice and an oral hearing attended by the guardsmen and their lawyers, a differently constituted Army Board decided on 21 November 2000 that the soldiers should not be discharged from the Army. It considered exceptional reasons existed in that:
(a) the guardsmen were relatively young and inexperienced when the incident took place, it was their first tour of duty in Northern Ireland and they had only been there for four months;
(b) the general security situation was tense in the area where the unit had recently suffered casualties including a fatality and they had been advised the situation was high risk;
(c) the army had been responsible for training the soldiers but could not prepare them for every eventuality;
(d) Guardsman Wright had expressed genuine concern for the victim’s family and Guardsman Fisher had expressed genuine regret;
(e) neither had a previous criminal record and their conduct in custody after conviction had been exemplary;
(f) the Board were convinced that there would be no repetition, both men having learned a bitter and lasting lesson
(g) both had been utterly loyal to the army during the procedure, clearly wished to serve their country and their commanding officer had spoken highly of them, in particular with reference to their service in operations in Kosovo and Macedonia, in which their personal conduct had been of the highest standard.
This decision was also challenged by the applicant. In the second proceedings (Re Jean McBride’s Application for Judicial Review No. 2), Mr Justice Kerr found on 17 April 2002 that the Board had been entitled to reach the findings above and that while considerations of the seriousness of their offence and past army practice of discharging offenders militated strongly against retention they did not remove the decision to allow the two soldiers to resume their careers from the range of available options. As regarded the applicant’s submissions on Article 2 of the Convention, while doubting that the applicant could claim to be a victim in this regard, he found nothing in Strasbourg jurisprudence to require additional punishment beyond that imposed by due process of law and considered that the two men had been held duly accountable as required by Article 2 of the Convention. The Army decision could not be construed as condonation as the Board made it abundantly clear that it accepted without qualification the trial judge’s findings. Nor did he find that the applicant could claim to have been discriminated against under Article 14 of the Convention.
The applicant appealed. On 13 June 2003, the Northern Ireland Court of Appeal gave its decision. The Lord Chief Justice found that reasons (a) to (c) and (g) could arguably be regarded as exceptional reasons, Lord Justice Nicholson considered that only (g) could be regarded as an exceptional reason making it desirable to retain the men in the army, while Lord Justice McCollum considered all the factors relied on would be likely to have existed in the cases of soldiers previously discharged for offences and neither individually or cumulatively amounted to exceptional reasons. In his judgment he stated:
“[25] ... the use of excessive force resulting in death, is by no means a unique event arising from the activities of security forces. Where death is caused by the use of excessive force by servants of the State, it should be a cause of great public concern. Such events diminish confidence in the maintenance of law and order and endanger the peace of the community if not treated with proper regard by the organs of the State.
[26] The vast majority of soldiers who have served in Northern Ireland have acted with discipline and restraint often under considerable and deliberate provocation and under constant threat from persons difficult to identify and distinguish from law-abiding citizens. It is no compliment to them if those who have not acted with the same degree of self-control are not treated as lawbreakers, however understanding and sympathetic one might be to the dangers and difficulties of service in Northern Ireland as being capable in itself of amounting to ‘exceptional reasons’.”
[27] If we consider the circumstances of the offence to discover whether it may be said that there were any exceptional circumstances which might provide a reason for retention of the soldiers, it appears that as against other cases of excessive force resulting in death, there is no exceptional feature which would reflect to the credit of the two soldiers involved in this case.
[28] The shooting took place in daylight, there was no confrontation and no confusion at the scene, there was no menacing crowd or mob. The lives of the solders were not under any risk and the trial judge rejected the proposition that they believed that there was any immediate risk to them. Nothing had occurred to justify the use of a lethal weapon.”
He went on to say:
“[41] However, quite apart from the issue of what may constitute exceptional reasons, I find it difficult to comprehend the view of the Army Board that it is desirable to retain Fisher and Wright in army service.
[42] Since a sentence of imprisonment almost invariably results in discharge it is not easy to discern any feature in this case which explains the obvious sympathy and concern which all superior officers concerned have displayed for the situation of Fisher and Wright.
[43] The murder of an innocent fellow-citizen should rank as a crime of the greatest magnitude, and one would expect that soldiers who have misused the lethal weaponry with which they are equipped in order to take away a life without justification should be regarded as quite unfitted for further army service.
[44] There may be considerations of morale and discipline which make discharge of the soldiers undesirable but if so one would have expected them to have been aired at the hearing of the Army Board or openly expressed in the ruling.”
However, he noted that the soldiers had a substantial argument that the army’s tardiness in determining the question of their discharge had materially altered their situation and created exceptional reasons for their retention. As the interests represented by the applicant would not be materially affected by the remedy, it should be sufficient to satisfy her and the public concerned that a declaration be made vindicating the objection to the army’s decision. He concluded that decisions on what was best for the army and its soldiers were best left to the Army and that it would be an unwise usurpation of power to intervene by mandamus to impose a course of action on Army authorities.
All three judges agreed with the High Court judge’s conclusions under Articles 2 and 14 of the Convention.
The Court of Appeal ordered the following declaration:
“Taken together, the reasons expressed by the Army Board for the retention in Army service of Guardsmen Fisher and Wright in its determination of 21 November 2001 do not amount to exceptional reasons.”
The Army did not take any action consequent on the Court of Appeal’s ruling. In correspondence to the applicant’s solicitors the relevant Minister stated that
“... the Army Board has no plans to revisit the question of the employment of the guardsmen.”
On 29 June 2005, the High Court rejected the applicant’s application for judicial review of the Army’s failure to act in light of the ruling of the Court of Appeal and to dismiss the soldiers. Mr Justice Weir noted that the Court of Appeal had expressly declined to grant coercive relief and held that the Army were under no legal compulsion to take any further action. There was no indication that the Army had failed to take the entirety of the judgments into account or had failed to understand them and the decision to retain the soldiers in the army remained effective. He refused relief, considering that the application was an impermissible attempt to circumvent the order of the Court of Appeal.
The Queen’s Regulations for the Army state (at para. 9.404d):
“A soldier is to be discharged if he has been sentenced:
by a civil court or by court-martial to imprisonment (including a suspended sentence, but not a suspended committal) or to detention or to any other form of custodial sentence;
By a court-martial to a period of detention which on confirmation is for 12 months or more.
If in the opinion of the commanding officer there are exceptional reasons that make retention of the soldier desirable then the case is to be submitted with valid and explicit reasons to the Director of Manning (Army) Ministry of Defence for a decision. The case is to be forwarded through the immediate superior headquarters with copies going to the next higher headquarters when this has been so directed. Where a case to an immediate headquarters is not supported it should be sent to the next higher headquarters for further comment before being sent to the Director of Manning (Army). Ministry of Defence (M2(A)) should be informed in advance by the commanding officer of any such cases that are controversial or high profile so that, if necessary, direction can be given for the case to be staffed through the full chain of command.”
In the period from 1989-1990 to 1999-2000, 2002 officers and men were discharged under QR9.404 while only a total of 28 were retained (i.e. under 1.4% or one case in 72). Information furnished to the High Court by those acting for the Army Board made it clear that no soldier who had been sentenced to an immediate custodial sentence of more than 9 months imprisonment was retained in the army and no soldier who had been convicted of an offence related to drugs had been retained.


ITEMID: 001-69564
LANGUAGEISOCODE: ENG
RESPONDENT: IRL
BRANCH: GRANDCHAMBER
DATE: 2005
DOCNAME: CASE OF BOSPHORUS HAVA YOLLARI TURIZM VE TICARET ANONIM SIRKETI v. IRELAND
IMPORTANCE: 1
CONCLUSION: Preliminary objections rejected (out of time, non-exhaustion of domestic remedies);No violation of P1-1
JUDGES: Christos Rozakis;Nicolas Bratza;Paul Mahoney
TEXT: 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.
13. The applicant company paid a lump sum of 1,000,000 United States dollars (USD) per aircraft on delivery. The monthly rental was 150,000 USD per aircraft. On 11 and 29 May 1992 the two aircraft were registered in Turkey as provided for in the lease. On 14 May 1992 the applicant company obtained its airline licence.
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.
20. On 18 May 1993 the Irish Permanent Mission to the United Nations indicated by facsimile to the Department of Transport that informal advice from the Secretary to the Sanctions Committee was to the effect that there was no problem with TEAM carrying out the work, but that an “informal opinion” from the “legal people in the Secretariat” had been requested. On 19 May 1993 the Department of Transport explained this to TEAM by telephone.
21. On 21 May 1993 the Irish Permanent Mission confirmed to the Department of Foreign Affairs that the “informal legal advice” obtained from the “United Nations legal office” was to the effect that TEAM should seek the “guidance and approval” of the Sanctions Committee before signing any contract with the applicant company. It was recommended that TEAM submit an application to the Committee with relevant transaction details; if the applicant company was to pay for the maintenance, it was unlikely that the Committee would have a problem with the transaction. On 24 May 1993 the Department of Transport received a copy of that facsimile and sent a copy to TEAM, who were also informed by telephone. By a letter dated 26 May 1993, the Irish Permanent Mission provided the Sanctions Committee with the required details and requested the latter's “guidance and approval”.
22. On 21 May 1993 the Sanctions Committee disagreed with the Turkish government's view that the aircraft could continue to operate, referring to Resolution 820 (1993) of the United Nations Security Council. The Turkish Permanent Mission to the United Nations was informed of that opinion by a letter dated 28 May 1993.
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. The Department of Transport later confirmed by a letter (of 16 June 1993) its instructions of 28 May 1993:
“... [TEAM] were advised by this Department that, in the circumstances, TEAM should not release the [aircraft] ... Furthermore, it was pointed out that if TEAM were to release the aircraft TEAM itself might be in serious breach of the UN resolutions (as implemented by Council Regulation (EEC) no. 990/93) ... and the matter was under investigation. At the same time directions were given to Air Traffic Control, whose clearance is necessary for departure of aircraft, not to clear this aircraft for take-off.”
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.
25. By a memorandum dated 29 May 1993, the Turkish embassy in Dublin requested the release of the detained aircraft to Turkey, given the latter's commitment to the sanctions regime
26. By a letter dated 2 June 1993, the Irish Permanent Mission informed the Sanctions Committee that the maintenance work had in fact already been carried out, that the government regretted the failure to abide by the procedure it had initiated and that the matter had been taken up with TEAM. The aircraft was being detained pending the Committee's decision.
27. On 3 June 1993 the Irish government learned of the Sanctions Committee's reply to the Turkish government and that the chairman of the Committee had indicated that it would be likely to favour impounding. The Committee would not meet until 8 June 1993.
28. On 4 June 1993 the European Communities (Prohibition of Trade with the Federal Republic of Yugoslavia (Serbia and Montenegro)) Regulations 1993 (Statutory Instrument no. 144 of 1993) were adopted. By a letter dated 8 June 1993, the Minister for Transport (Energy and Communications) informed the Dublin Airport managers that he had authorised the impounding, until further notice, of the aircraft pursuant to that statutory instrument.
29. Shortly afterwards the applicant company's second aircraft was grounded in Istanbul, although the parties disagreed as to precisely why.
30. By a letter of 14 June 1993, the Sanctions Committee informed the Irish Permanent Mission of the findings of its meeting of 8 June 1993:
“... the provision of any services to an aircraft owned by an undertaking in the [FRY], except those specifically authorised in advance by the Committee ..., would not be in conformity with the requirements of the relevant Security Council resolutions. The members of the Committee also recalled the provisions of paragraph 24 of [Resolution 820 (1993) of the United Nations Security Council] regarding such aircraft, under which the aircraft in question should have already been impounded by the Irish authorities. The Committee, therefore, would be extremely grateful for being apprised of any action on behalf of Your Excellency's Government to that effect.”
By a letter dated 18 June 1993, the Irish Permanent Mission informed the Sanctions Committee that the aircraft had been detained on 28 May 1993 and formally impounded on 8 June 1993.
31. In a letter of 16 June 1993 to the Department of Transport, the applicant company challenged the impoundment, arguing that the purpose of Regulation (EEC) no. 990/93 was not to deal simply with legal ownership, but rather with operational control. On 24 June 1993 the Department replied:
“The Minister is advised that the intention and effect of the UN resolution as implemented through [Regulation (EEC) no. 990/93] is to impose sanctions by impounding the types of commercial asset mentioned in Article 8, including aircraft, in any case where a person or undertaking in or operating from the [FRY] has any ownership interest of the kind mentioned. As this view of the scope and effect of the original resolution has been confirmed by the [Sanctions Committee], the Minister does not feel entitled to apply [Regulation (EEC) no. 990/93] in a manner which would depart from that approach. ... the aircraft must remain impounded. ... the Minister appreciates the difficulty that [the applicant company] finds itself in and would be anxious to find any solution that was available to him under [Regulation (EEC) no. 990/93] which would permit the release of the aircraft.”
32. By a letter dated 5 July 1993, the Turkish embassy in Dublin repeated its request for the release of the aircraft, stating that the Turkish government would ensure impoundment in accordance with the sanctions. The Irish government indicated to the Sanctions Committee, by a letter of 6 July 1993, that it would be favourably disposed to grant that request. On 4 August 1993 the Sanctions Committee ruled that the aircraft had to remain in Ireland, since the relevant resolutions required the Irish State to withhold all services from the aircraft, including services that would enable it to fly.
33. In November 1993 the applicant company applied for leave to seek judicial review of the Minister's decision to impound the aircraft. Amended grounds were later lodged taking issue with TEAM's role in the impoundment. On 15 April 1994 the High Court struck out TEAM as a respondent in the proceedings, the applicant company's dispute with TEAM being a private-law matter.
34. On 15 June 1994 the applicant company's managing director explained in evidence that rental payments due to JAT had been set off against the deposits initially paid to JAT and that future rental payments were to be paid into a blocked bank account supervised by the Turkish Central Bank.
35. On 21 June 1994 Mr Justice Murphy delivered the judgment of the High Court. The issue before him could, he believed, be simply defined as the question of whether the Minister for Transport was bound by Article 8 of Regulation (EEC) no. 990/93 to impound the applicant company's aircraft. He considered the Department of Transport's letter of 24 June 1993 to the applicant company to be the most helpful explanation of the Minister's reasoning. He found that:
“... it is common case that the transaction between JAT and [the applicant company] was entirely bona fide. There is no question of JAT having any interest direct or indirect in [the applicant company] or in the management, supervision or direction of the business of that company. ...
It is, however, common case that [resolutions of the United Nations Security Council] do not form part of Irish domestic law and, accordingly, would not of themselves justify the Minister in impounding the aircraft. The real significance of the [resolutions of the United Nations Security Council], in so far as they relate to the present proceedings, is that [Resolution 820 (1993) of the United Nations Security Council] ... provided the genesis for Article 8 of [Regulation (EEC) no. 990/93]. ...”
36. In interpreting Regulation (EEC) no. 990/93, Mr Justice Murphy had regard to its purpose. He found the aircraft not to be one to which Article 8 applied, as it was not an aircraft in which a majority or controlling interest was held by a person or undertaking in or operating from the former FRY, and that the decision of the Minister to impound was therefore ultra vires. However, the aircraft was, at that stage, the subject of an injunction obtained (in March 1994) by a creditor of JAT (SNECMA) preventing it from leaving the country. That injunction was later discharged on 11 April 1995.
37. Having indicated to the applicant company that the Minister for Transport was investigating a further impoundment based on Article 1.1(e) of Regulation (EEC) no. 990/93, the Department of Transport informed the applicant company by a letter of 5 August 1994 of the following:
“The Minister has now considered the continuing position of the aircraft in the light of the recent ruling of the High Court and the provisions of the Council regulations referred to.
Arising out of the Minister's consideration, I am now directed to inform you that the Minister has ... directed that the aircraft ... be detained pursuant to Article 9 of [Regulation (EEC) no. 990/93] as an aircraft which is suspected of having violated the provisions of that regulation and particularly Article 1.1(e) and [Regulation (EEC) no.] 1432/92. The aircraft will remain detained pending completion of the Minister's investigation of the suspected violation as required under Article 9 and Article 10 of Regulation [(EEC) no.] 990/93.”
Although not noted in that letter, the Minister's concern related to the applicant company's setting off of JAT's financial obligations (certain insurance, maintenance and other liabilities) under the lease against the rental monies already paid by it into the blocked bank account.
38. On 23 September 1994 the United Nations Security Council adopted Resolution 943 (1994). Although it temporarily suspended the sanctions as peace negotiations had begun, it did not apply to aircraft already impounded. It was implemented by Regulation (EC) no. 2472/94 on 10 October 1994.
39. In March 1995 the applicant company was given leave to apply for judicial review of the Minister's decision to re-impound the aircraft. By a judgment of 22 January 1996, the High Court quashed the Minister's decision to redetain the aircraft. It noted that almost all of the monies which had been paid into the blocked account by the applicant company had by then been used up (with the consent of the holding bank in Turkey) in order to discharge JAT's liabilities under the lease. The crucial question before the High Court was the Minister's delay in raising Article 9 of Regulation (EEC) no. 990/93 given that the applicant company was an “innocent” party suffering heavy daily losses. The High Court found that the Minister had failed in his duty to investigate and decide such matters within a reasonable period of time, to conduct the investigations in accordance with fair procedures and to have proper regard for the rights of the applicant company.
40. On 7 February 1996 the Irish government appealed to the Supreme Court and applied for a stay on the High Court's order. On 9 February 1996 the Supreme Court refused the Minister's application for a stay. The overriding consideration in deciding to grant the stay or not was to find a balance which did not deny justice to either party. Noting the significant delay of the Minister in raising Article 1.1(e) and the potentially minor damage to the State (monies owed for the maintenance and parking in Dublin Airport) compared to the applicant company's huge losses, the justice of the case was overwhelmingly in the latter's favour.
41. The aircraft was therefore free to leave. By letters dated 12 and 14 March 1996, the applicant company, JAT and TEAM were informed that the Minister considered that he no longer had any legal responsibility for the aircraft.
42. On 8 August 1994 the Minister for Transport lodged an appeal in the Supreme Court against the High Court judgment of 21 June 1994. He took issue with the High Court's interpretation of Regulation (EEC) no. 990/93 and requested a preliminary reference to the ECJ (Article 177, now Article 234, of the Treaty establishing the European Community – “the EC Treaty”).
43. By an order dated 12 February 1995, the Supreme Court referred the following question to the ECJ and adjourned the proceedings before it:
“Is Article 8 of [Regulation (EEC) no. 990/93] to be construed as applying to an aircraft which is owned by an undertaking the majority or controlling interest in which is held by [the FRY] where such aircraft has been leased by the owner for a term of four years from 22 April 1992 to an undertaking the majority or controlling interest in which is not held by a person or undertaking in or operating from the said [FRY]?”
44. The parties made submissions to the ECJ. The applicant company noted that it was ironic that, following Resolution 943 (1994) of the United Nations Security Council, JAT aircraft could fly whereas its own remained grounded.
45. On 30 April 1996 Advocate General Jacobs delivered his opinion. Given the majority interest of JAT in the aircraft, Article 8 of Regulation (EEC) no. 990/93 applied to it. The Advocate General disagreed with the Irish High Court, considering that neither the aims nor the texts of the relevant resolutions of the United Nations Security Council provided any reason to depart from what he considered to be the clear wording of Article 8 of Regulation (EEC) no. 990/93.
46. As to the question of the respect shown in that regulation for fundamental rights and proportionality, the Advocate General pointed out:
“It is well established that respect for fundamental rights forms part of the general principles of Community law, and that in ensuring respect for such rights, the [ECJ] takes account of the constitutional traditions of the Member States and of international agreements, notably [the Convention], which has a special significance in that respect.
Article F(2) of the Treaty on European Union ... gives Treaty expression to the [ECJ's] case-law. ... In relation to the EC Treaty, it confirms and consolidates the [ECJ's] case-law underlining the paramount importance of respect for fundamental rights.
Respect for fundamental rights is thus a condition of the lawfulness of Community acts – in this case, the Regulation. Fundamental rights must also, of course, be respected by Member States when they implement Community measures. All Member States are in any event parties to the [Convention], even though it does not have the status of domestic law in all of them. Although the Community itself is not a party to the Convention, and cannot become a party without amendment both of the Convention and of the Treaty, and although the Convention may not be formally binding upon the Community, nevertheless for practical purposes the Convention can be regarded as part of Community law and can be invoked as such both in the [ECJ] and in national courts where Community law is in issue. That is so particularly where, as in this case, it is the implementation of Community law by Member States which is in issue. Community law cannot release Member States from their obligations under the Convention.”
47. The Advocate General noted that the applicant company had relied on the right to peaceful enjoyment of property, protected by the Convention, and the right to pursue a commercial activity, recognised as a fundamental right by the ECJ. Having considered Sporrong and Lönnroth v. Sweden (judgment of 23 September 1982, Series A no. 52), he defined the essential question as being whether the interference with the applicant company's possession of the aircraft was a proportionate measure in the light of the aims of general interest Regulation (EEC) no. 990/93 sought to achieve. He had regard to the application of this test in AGOSI v. the United Kingdom (judgment of 24 October 1986, Series A no. 108) and Air Canada v. the United Kingdom (judgment of 5 May 1995, Series A no. 316-A) and to a “similar approach” adopted by the ECJ in cases concerning the right to property or the right to pursue a commercial activity (including Hauer v. Land Rheinland-Pfalz, Case 44/79 [1979] European Court Reports (ECR) 3727, §§ 17-30).
48. While there had been a severe interference with the applicant company's interest in the lease, it was difficult to identify a stronger type of public interest than that of stopping a devastating civil war. While some property loss was inevitable for any sanctions to be effective, if it were demonstrated that the interference in question was wholly unreasonable in the light of the aims sought to be achieved, then the ECJ would intervene. However, the Advocate General felt that neither the initial decision to impound nor the continued retention of the aircraft could be regarded as unreasonable.
49. Whether or not the financial impact of the sanctions were as outlined by the applicant company, a general measure of the kind in question could not be set aside simply because of the financial consequences the measure might have in a particular case. Given the strength of the public interest involved, the proportionality principle would not be infringed by any such losses.
50. The Advocate General concluded that the contested decision did not
“... strike an unfair balance between the demands of the general interest and the requirements of the protection of the individual's fundamental rights. That conclusion seems consistent with the case-law of [this Court] in general. Nor has [the applicant company] suggested that there is any case-law under [the Convention] supporting its own conclusion.
The position seems to be no different if one refers to the fundamental rights as they result from 'the constitutional traditions common to the Member States' referred to in the case-law of [the ECJ] and in Article F(2) of the Treaty on European Union. In the [above-cited Hauer case, the ECJ] pointed out ..., referring specifically to the German Grundgesetz, the Irish Constitution and the Italian Constitution, that the constitutional rules and practices of the Member States permit the legislature to control the use of private property in accordance with the general interest. Again it has not been suggested that there is any case-law supporting the view that the contested decision infringed fundamental rights. The decision of the Irish High Court was based, as we have seen, on different grounds.”
51. By a letter of 19 July 1996, TEAM informed JAT that the aircraft was free to leave provided that debts owed to TEAM were discharged.
52. On 30 July 1996 the ECJ ruled that Regulation (EEC) no. 990/93 applied to the type of aircraft referred to in the Supreme Court's question to it. The ECJ noted that the domestic proceedings showed that the aircraft lease had been entered into “in complete good faith” and was not intended to circumvent the sanctions against the FRY.
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.
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.
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.
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:
“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.”
“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.”
“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.”
“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 Trade adopted 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,
(c) Airport Police, Fire Services Officers of Aer Rianta, ...
(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.”
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.
72. This judgment is concerned with the provisions of Community law of the “first pillar” of the European Union.
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. By the early 1970s the ECJ had confirmed that, in protecting such rights, it was inspired by the constitutional traditions of the member States and by the guidelines supplied by international human rights treaties on which the member States had collaborated or to which they were signatories. The Convention's provisions were first explicitly referred to in 1975, and by 1979 its special significance amongst international treaties on the protection of human rights had been recognised by the ECJ. Thereafter the ECJ began to refer extensively to Convention provisions (sometimes where the Community legislation under its consideration had referred to the Convention) and latterly to this Court's jurisprudence, 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:
“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, in which it opined, in particular, that respect for human rights was “a condition of the lawfulness of Community acts”.
76. In Kondova, 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.”
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.
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 takes effect 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.”
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.”
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)).
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 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.
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.
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.
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. 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” .
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.
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.
95. The principle of State liability was first developed in Francovich. 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.
96. In order to assist national courts in correctly implementing Community law and maintaining its uniform application, 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:
“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 seisple, 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 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. The domestic court will decide on the appropriate remedy.
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.
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. 1o ...
10o 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.”


ITEMID: 001-66941
LANGUAGEISOCODE: ENG
RESPONDENT: DEU
BRANCH: ADMISSIBILITY
DATE: 2004
DOCNAME: REMY v. GERMANY
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Ireneu Cabral Barreto
TEXT: The six applicants, Günter Remy, Marianne Witte, Dieter Zentz, Ingrid Kahlert-Warmbold, Gustav Hebold and Michael Esche (on behalf of the deceased Ernst Esche), are all German nationals. They are represented before the Court by the law firm Zuck and Quaas in Stuttgart.
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicants are the owners of special social bonds (Sozialpfandbriefe) that the German Government issued in the 1950s. The interest rate of these social bonds is lower than the market interest rate, but the profits derived from the bonds were exempted from tax.
In 1992 the Government amended its tax laws and revoked the provision whereby the social bonds were tax-free.
On 17 February 1993 the applicants lodged a joint complaint with the Federal Constitutional Court. In this complaint, they argued that the revocation of their social bonds' tax-free character and, as a consequence, the falling prices of their bonds would entail considerable financial losses for them. This violated their rights to property, their right to protection of their legitimate expectations and their right to equality under Articles 14, 2 in conjunction with Articles 20 and 3 of the German Basic Law.
Having received a great number of complaints on the same subject matter, the Federal Constitutional Court communicated two of these constitutional complaints to the Government as pilot cases.
Towards the end of 1994 the applicants asked the Federal Constitutional Court to send them the Government's submissions in the pilot cases. Their letter went without a response, despite several reminders.
On 5 February 2002, in a leading decision, the Federal Constitutional Court rejected the constitutional complaints in the pilot cases, finding that the revocation of the tax subvention served a legitimate aim and complied with the principle of proportionality.
On 8 August 2002 the Federal Constitutional Court, referring to its decision of 5 February 2002, refused to entertain the applicants' constitutional complaint.