European Convention on Human Rights—reviewability of national actions to implement EU law—impounding aircraft—right to property
Bosphorus Hava Yollari Turizm ve Ticaret Anonim Sirket v. Ireland. App. No. 45036/98. At <http://www.echr.coe.int>.
European Court of Human Rights (Grand Chamber), June 30, 2005.
In Bosphorus Hava Yollari Turizm v. Ireland 1 (Bosphorus Airways ), the European Court of Human Rights (ECHR) held that Ireland did not violate the applicant’s right to property, as set out in Article 1 of Protocol No. 12 to the European Convention on Human Rights,3 in impounding one of the applicant’s leased aircraft.
The applicant, a Turkish airline charter company, leased two airplanes from Yugoslav Airlines in 1992 and subsequently registered them in Turkey. On April 17, 1993, the UN Security Council adopted Resolution 820, 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 Federal Republic of Yugoslavia (FRY).4 Later that same month, the European Community (EC) implemented the UN resolution through Regulation 990/935 (EC Regulation). One of the applicant’s leased aircraft arrived in Dublin in mid-May 1993 in order to have maintenance work done there by an Irish company. By a letter dated June 8, 1993, the Irish minister for transport informed Dublin airport managers that he had authorized the impounding of the aircraft pursuant to the EC Regulation.
The applicant sought judicial review of the minister’s decision to impound the aircraft before the Irish High Court. In its judgment of June 21, 1994, the High Court held that the EC Regulation did not apply to the applicant’s airplanes since the Turkish lessor was not held or controlled by a Yugoslav person or undertaking. On appeal, the Supreme Court of Ireland requested a preliminary ruling from the European Court of Justice (ECJ) on whether the aircraft were subject to the EC Regulation. On July 30, 1996, the ECJ ruled that they were, and rejected the applicant’s argument that the EC Regulation would infringe its right to peaceful enjoyment of its possessions. The Court recalled that fundamental rights are not absolute, and emphasized the importance of the aims pursued—namely, the implementation of the UN Security Council sanctions against the FRY, which were intended to dissuade the FRY from further violating the integrity and security of the Republic of Bosnia-Herzegovina. As compared to an objective of general interest so fundamental for the international community, the impounding of the aircraft could not be regarded as inappropriate or disproportionate. In view of the ECJ’s preliminary ruling, the Irish Supreme Court held in favor of the minister of transport and overturned the High Court’s order on November 29, 1996.
The applicant then filed a claim against Ireland before the Grand Chamber of the European Court of Human Rights.6 The defendant, as well as Italy, the United Kingdom, and the European Commission, argued that Ireland did not have any discretion with regard to its acting as the EC Regulation required; accordingly, the application was in substance directed against an act of the EC. Citing the practice of the former European Commission on Human Rights,7 they suggested that applications against EC member states for an EC act should be declared inadmissible as long as there is an equivalent system of human rights protection inside the EC.
The Court rejected these arguments. It noted that under Article 1 of the Convention, states are responsible to secure to everyone “within their jurisdiction” respect for the rights and freedoms set forth in section I. Observing that the impounding of the airplane occurred in Ireland, the Court found the complaint to be admissible ratione loci since a state’s jurisdictional competence under the Convention is primarily territorial. Moreover, since the detention of the aircraft followed a decision of the Irish minister for transport, the applicant company—as addressee of the impugned act—also fell within the jurisdiction of the Irish state, giving the Court jurisdiction both rationae personae and materiae under the Convention (paras. 136–37).
The Court then scrutinized whether the Irish measure violated the right to the peaceful enjoyment of one’s possessions, as set out in Article 1 of the Convention’s Protocol No. 1.8 It observed that the EC Regulation amounted to a control on the use of property within the meaning of the second paragraph of that article (para. 142). As to the legal basis of the impoundment, the Court recalled that the EC Regulation became directly applicable in Ireland, with full effect, from April 28, 1993. The Irish decisions to impound the aircraft and to appeal the High Court judgment, as well as the final judgment of the Irish Supreme Court along the lines of the ECJ’s preliminary ruling, were not the result of an exercise of discretion by the Irish authorities. Rather, they amounted to the Irish state’s compliance with its legal obligations as determined by the EC Regulation (para. 148). The Court then addressed the question whether the impoundment was justified.
The Court noted that a state’s compliance with its obligations flowing from membership in an international organization is a “legitimate interest of considerable weight” (para. 150). Reconciling this interest with the remaining responsibility of all state parties under the Convention, it held that
state action taken in compliance with such legal obligations is justified as long as the relevant organisation is considered to protect fundamental rights, as regards both the substantive guarantees offered and the mechanisms controlling their observance, in a manner which can be considered at least equivalent to that for which the Convention provides. (Para. 155)
Accordingly, if an organization provides such equivalent protection, there is a presumption that a state has not departed from the Convention’s requirements when it does no more than implement obligations pursuant to membership in that organization. Any such presumption can be rebutted, however, if in the circumstances of a particular case, the protection of Convention rights was “manifestly deficient” (para. 156).
Applying this standard to the EC—the particular international organization whose standards are in question in Bosphorus Airways—the ECHR recalled that under the ECJ’s jurisprudence and Article 6(2) of the EU Treaty,9 respect for fundamental rights has become a condition of the legality of EC acts. Furthermore, the ECHR noted that the Charter of Fundamental Rights of the European Union of 2000,10 which was substantially inspired by the Convention, also recognises the Convention as establishing the minimum human rights standards (para. 159). And unlike the ECJ, to which individuals have limited direct access, the legal control system within the EC provides individuals with remedies against both member states and other individuals for breach of EC law—essentially through the national courts, which operate in legal systems into which the Convention has been incorporated, albeit to different degrees (paras. 161–64). The ECHR therefore concluded that fundamental rights protection in the European Community could be regarded as equivalent to Convention standards.
The remaining issue was whether the presumption of Convention compliance by Ireland could be rebutted in the present case. Taking into account the nature of the interference with property rights, the general interest pursued by the sanctions regime, and the ruling by the ECJ, the ECHR considered that there was “no dysfunction of the mechanisms of control of the observance of Convention rights” (para. 166). Therefore, the Court held unanimously11 that there had been no violation of Article 1 of Protocol 1 to the Convention.
* * * *
Bosphorus Airways is a leading case on the relationship between EC law and the European Convention on Human Rights. Pursuant to Article 189 (now Article 249) of its founding treaty, the European Community adopted, from its very beginning in 1958, regulations with direct effect on individuals, mainly in the economic field. In order to constrain such EC interferences, the ECJ held as early as 1969 that fundamental rights were enshrined in the general principles of EC law.12 In protecting these rights, the ECJ was inspired by the constitutional traditions of the member states and the European Convention on Human Rights, a Council of Europe Convention (1950) to which all EU member states have become a party—independently of their EU membership.13 Notwithstanding some early divergences,14 the ECJ has generally followed the case law of the ECHR (the specific court established under the Convention) when referring to Convention standards.15 Member states endorsed this case law by Article 6(2) of the 1992 Treaty Establishing the European Union. In 2000, the (currently nonbinding) Charter of Fundamental Rights of the European Union further emphasized the significance of the Convention for the EU’s legal order.
In contrast to its member states, the EC is not a party to the Convention, and it is therefore not subject to the scrutiny of the European Court of Human Rights. In fact, the ECJ held in 1994 that the EC does not even have the competence to accede to the Convention.16 Accordingly, applications against the EC are inadmissible rationae personae before the ECHR.17 That leaves open the question, however, of whether applications might nevertheless be brought against an EU member state executing EC law. Earlier jurisprudence under the Convention—in a line of cases beginning in 1990 with the European Commission on Human Rights in M & Co. v. Germany, had generally answered this question in the negative.18 In that case, Germany had done no more than execute a binding ECJ judgment on its territory; the commission, being satisfied that a level of human rights protection equivalent to the Convention existed in the EC, dismissed the complaint as inadmissible rationae materiae. The legal analysis was different, however, for EU member states that exercised discretion that they retained under EC law. In such a situation, the ECHR admitted applications against the member state even though the discretion was exercised in the process of implementing an EC directive.19 The Court also reached the merits of an application against the United Kingdom for the nonregistration of inhabitants of Gibraltar as voters for the European Parliament; in that case the Court emphasized that the government had freely entered into the relevant constitutional, international instruments of the EC (namely, a council decision signed by the council’s president and the member state’s foreign ministers), and that these instruments constituted the legal basis for the United Kingdom’s executive action.20
The present case gave the Court the opportunity to elaborate a more systematic approach. It eliminated the procedural solution of the former European Commission on Human Rights to declare certain applications against an EU member state inadmissible if it merely executes secondary EC law. Instead, the ECHR found that application to be admissible for two reasons: first, Article 1 of the Convention—that states are responsible to secure respect for human rights to people within their jurisdiction—applies primarily on a territorial basis, and second, the Irish Ministry of Transport, and therefore the Irish state, was the author of the impugned act. The first argument is unpersuasive. Although member states do, of course, exercise jurisdiction over their territory, EC law applies there as well.21 The reference to the territorial nature of jurisdiction therefore fails to answer the question whether the EC or the member state is responsible under the Convention for the implementation of an EC act. The second argument—relating to the involvement of member states’ legal authorities in the act—seems to be more relevant. On the one hand, this formal reading of the term “jurisdiction” in Article 1 of the Convention is in line with the traditional rules on state responsibility, according to which the conduct of any state organ shall be considered an act of that state under international law, whether the organ exercises legislative, executive, or any other function.22 Thus, the Irish minister’s lack of discretion in applying the EC Regulation is irrelevant to the question whether Ireland should be held responsible for his act under the Convention. On the other hand, the Court could also have adopted a functional reading of that provision, emphasizing that the impugned act was no more than the execution of EC law, adopted by the European Community as having a distinct international legal personality.23 Such has been the approach in the World Trade Organization, where panels have attributed implementing acts of EU member states to the EC itself.24 This approach has the advantage of allowing the author of the legislation in question to defend it, rather than hearing the member state that simply happens to execute the legislation and that then becomes subject to a complaint. Yet another approach is to attribute the act to both the member state and the EC, as currently contemplated in the International Law Commission’s project on responsibility of international organizations.25 However, since the EC is not answerable before the ECHR (in contrast to the WTO’s dispute settlement system),26 the ECHR was not inclined to follow these tendencies of functional attribution.
Instead, the Court entered into the merits of the case and developed a new theory of justifying interferences in human rights—one based on the need to comply with obligations arising out of an international act. The decisive question is whether the international act (in this case, by the EC) itself must satisfy the relevant Convention standards or whether it is sufficient that the act is one by an international organization that generally respects human rights. This question inescapably involves a delicate policy issue between the ECHR and the EC. If the ECHR were to fully review an EC act, it would, in effect, be putting itself in a hierarchically superior position over the ECJ—a court that is, by design, intended to have exclusive competence over matters of EC law.27 But if it accepted that human rights standards were protected by EC law in exemplary fashion so as to make an additional layer of judicial control unnecessary, the ECHR would then be reviewing only particular human rights cases from the highest courts in the member states—and not cases from the ECJ. In much the same manner as had been done by the German Constitutional Court,28 the ECHR steered a middle ground. By reviewing the substantive guarantees offered and the mechanisms controlling their observance in the EC, the ECHR emphasized the systemic equivalence of human rights protection in the EC. This approach signals to potential applicants that complaints against member states implementing EC law can be expected to have little chance of success, thereby (among other things) protecting the Court against a flood of hopeless applications. Nevertheless, a “backdoor” is kept open insofar as the specific circumstances of a case might reveal unexpected shortcomings in the EC’s system of human rights protections. It remains to be seen how the test of a “manifest deficiency” will be applied in practice.29 But certainly as a matter of theory (and, judging by Bosphorus Airways, of commitment), the Court is prepared in such situations to assume its duties under the Convention and to act as the final arbiter of compliance with it.
Finally, it is uncertain whether the Court’s theory of “rebuttable presumption” of human rights conformity by implementation of an international obligation may be transferred to other international organizations. In the present case, Ireland had not only pleaded “not guilty” because of compliance with EC law, but also pointed to the binding decision of the UN Security Council. Would the Irish reference (para. 111) to the UN Charter (Articles 1(3) and 55), the Universal Declaration of Human Rights, and the International Covenants have passed the test of there being an equivalent system of human rights protection in the United Nations, even though there are no specific judicial remedies available to challenge UN Security Council decisions? The Court avoided taking a position on this issue, arguing (para. 145) that UN Security Council sanctions against the FRY did not form part of domestic Irish law and could therefore not have constituted a legal basis for the impugned Irish measure. In the future, however, the Court might have to consider the matter if it were to review the legality of a self-executing EC measure implementing a binding UN Security Council decision.
There are several foreseeable situations in which these types of issues might arise. For example, individuals targeted by a UN Security Council decision regarding terrorism could challenge the respective antiterrorist action by European states. Such individuals cannot, of course, attack measures of intergovernmental cooperation, according to which EU member states commit themselves only to afford each other the widest possible assistance in preventing and combating terrorist acts.30 However, individuals whose property has been frozen by a directly applicable EC regulation might first bring an annulment action before the EC courts31 and then attempt to put the question before the ECHR by filing an application against the EU member states collectively. The most recent attempt to mobilize the ECHR against self-executing EC acts relates to a European Commission decision to fine the applicant for a breach of antitrust law. The ECHR declared the application inadmissible32 because the Court of First Instance had already quashed the commission’s decision,33 with the consequence that the applicant was no longer a victim of the alleged human rights violation. Hence, it is still an open question whether, under the Convention, EU member states are collectively responsible for self-executing EC acts.34
Against the above background, it is possible that the ECHR might treat the member states as collectively answerable for having frozen the property of certain listed persons by way of an EC regulation against terrorism. If the Court was to declare such an application admissible, it would then have to assess whether the interferences with certain human rights, such as the right to property or due process, can be justified under the Convention as a “rebuttable presumption” that compliance with UN obligations implies that the EC regulation is in conformity with the Convention. In that scenario, the ECHR would face not only questions on the relationship between the Convention and EC law, but even more delicate questions on the interaction of the Convention with general international law and also the UN Charter (including Article 103 of the UN Charter, which states that in the event of a conflict with another international agreement, the Charter shall prevail).
Frank Hoffmeister
European Commission Legal Service
Endnotes
1 App. No. 45036/98 (Eur. Ct. H.R. June 30, 2005) [hereinafter Judgment]. The judgments and other materials of the European Court of Human Rights are available online at the Court’s Web site, <http://www.echr.coe.int>.
2 Protocol [No. 1] to the Convention for the Protection of Human Rights and Fundamental Freedoms, Mar. 20, 1952, ETS 9, 213 UNTS 262.
3 Convention for the Protection of Human Rights and Fundamental Freedoms, Nov. 4, 1950, ETS No. 5, 213 UNTS 222.
4 S.C. Res. 820, para. 24 (Apr. 17, 1993).
5 Council Regulation 990/93 of 26 April 1993 Concerning Trade Between the European Economic Community and the Federal Republic of Yugoslavia (Serbia and Montenegro), 1993 O.J. (L 102) 14.
6 Italy, the United Kingdom, the Institut de formation en droits de l’homme du Barreau de Paris (a French nongovernmental organization), and the European Commission made written submissions. The commission also obtained leave to participate in the oral hearing as the representative of the EC.
7 M & Co. v. Germany, App. No. 13258/87, 64 Eur. Comm. H.R. Dec. & Rep. 138 (1990).
8 Article 1 of Protocol [No. 1] to the European Convention on Human Rights provides:<EXT>Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.
The preceding provision shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.
9 Consolidated Version of the Treaty on European Union, Dec. 24, 2002, 2002 O.J. (C 325) 5. Article 6(2) provides: “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.”
10 Dec. 7, 2000, 2000 O.J. (C 364) 1.
11 Judges Rozakis, Tulkens, Traja, Botoucharova, Zagrebelsky, and Garlicki issued a joint concurring opinion, and Judge Ress annexed his own concurring opinion.
12 Case 29/69, Stauder v. City of Ulm, 1969 ECR 419.
13 Case C-260/89, Elliniki Radiophonia Tiléorassi AE [ERT] v. Dimotiki Etairia Pliroforissis [DEP], 1991 ECR I-2925, para. 41 (includes further case citations).
14 Regarding the protection of commercial locations under Article 8 of the European Convention on Human Rights, compare, for example, the Hoechst (Cases 46/87 & 227/88, 1989 ECR 2859) and Roquette Fréres (Case C-94/00, 2002 ECR I-9011) cases before the ECJ, and the Niemetz case (251-B Eur. Ct. H.R. (ser. A) (1992)) before the ECHR. Another well-known divergence emerged on the right not to incriminate oneself under Article 6 of the Convention; compare the ECJ’s Orkem case (Case 374/87, 1989 ECR 3283) and the ECHR’s Funke case (256-A Eur. Ct. H.R. (Ser. A) (1993)). The ECJ was also less strict than the ECHR vis-à-vis television monopolies under Article 10 of the Convention; see the ECJ’s ERT v. DEP case and the ECHR’s Informationsverein Lentia case (276 Eur. Ct. H.R. (Ser. A) (1993)).
15 See, e.g., Baustahlgewebe GmbH v. Commission, Case C-185/95, 1998 ECR I-8417, paras. 20, 27 (concerning Convention Article 6); Joined Cases C-74/95 & C-129/95, 1996 ECR I-6609, para. 25 (concerning Convention Article 7); Lisa Jacqueline Grant v. South-West Trains Ltd., Case C-249/96, 1998 ECR I-621, paras. 33–34 (concerning Convention Articles 8, 12, & 14); Connolly v. Commission, Case C-274/99, 2001 ECR I-1611, para. 39 (concerning Convention Article 10).
16 Opinion 2/94, Accession by the Community to the European Convention for the Protection of Human Rights and Fundamental Freedoms, 1996 ECR I-1759; see Juliane Kokott & Frank Hoffmeister, Case Report: Opinion 2/94, 90 AJIL 664 (1996).
17 Confédération française démocratique du travail v. European Communities, App. No. 8030/77, 13 Eur. Comm. H.R. Dec. & Rep. 231 (1978); Dufay v. European Communities, App. No. 13539/88 (Eur. Comm’n H.R. Jan. 19, 1989) (unpublished admissibility decision); Matthews v. United Kingdom, 1999-I Eur. Ct. H.R., para. 32.
18 M & Co. v. Germany, App. No. 13258/87, 64 Eur. Comm. H.R. Dec. & Rep. 138 (1990).
19 Cantoni v. France, 1996-V Eur. Ct. H.R.; Hornsby v. Greece, 1997-II Eur. Ct. H.R.
20 Matthews v. United Kingdom, paras. 33–34.
21 Treaty Establishing the European Community, Mar. 25, 1957, 298 UNTS 11, as amended by Treaty of Amsterdam, Oct. 2, 1997, 1997 O.J. (C 340) 1, as amended by Treaty of Nice, Feb. 26, 2001, 2001 O.J. (C 80) 1, consolidated version reprinted in 2002 O.J. (C 325) 33 [hereinafter EC Treaty], Art. 299.
22 See Article 4 of the Articles on Responsibility of States for Internationally Wrongful Acts, in Report of the International Law Commission on the Work of Its Fifty-third Session, UN GAOR, 56th Sess., Supp. No. 10, at 43, UN Doc. A/56/10 (2001), available at <www.un.org/law/ilc>.
23 For this approach compare P. J. Kuijper & E. Paasivirta, Further exploring international responsibility: The European Community and the ILC’s Project on Responsibility of International Organizations, 1 Int’l Org. L. Rev. 111, 113–16 (2004).
24 Panel Report, European Communities—Customs Classification of Certain Computer Equipment, para. 8.16, WTO Docs. WT/DS62/R, WT/DS67/R, & WT/DS68/R (Feb. 5, 1998); Panel Report, European Communities—Protection of Trademarks and Geographic Indication for Agricultural Products and Foodstuffs, para. 7.725, WTO Doc. WT/DS174/R (Mar. 15, 2005) (“The Panel . . . has accepted the European Communities’ explanation of what amount to its sui generis domestic constitutional arrangements that Community laws are generally not executed through authorities at Community level but rather through recourse to the authorities of its member States which, in such a situation, ‘act de facto as organs of the Community, for which the Community would be responsible under WTO law and international law in general’.”).
25 See Articles 15 and 16 of the International Law Commission’s draft articles on responsibility of international organizations, UN Doc. A/CN.4/L.666/rev.1 (2005), adopted by the Drafting Committee on May 27, 2005.
26 According to Article XI:1 of the Marrakesh Agreement Establishing the World Trade Organization, World Trade Organization, The Legal Texts: The Results of the Uruguay Round of Multilateral Trade Negotiations 3 (1999), the European Communities is a member of the WTO.
27 Article 292 of the EC Treaty, supra note 21, provides: “Member States undertake not to submit a dispute concerning the interpretation or application of this Treaty to any method of settlement other than those provided for therein.”
28 See the German Constitutional Court’s June 7, 2000, judgment in the “bananas” case, 102 BVerfGE 147 (2000), along with the case note by the author at 38 Common Mkt. L. Rev. 791 (2001). For a comparison between the present case and the German case, see Frank Schorkopf, The European Court of Human Rights’ Judgment in the Case of Bosphorus Hava Yollari Turizm v. Ireland, 6 German L.J. 1255, 1264 (2005).
29 Apparently, the Court was split on the details of this test. The seven judges who wrote concurring opinions presented a series of far-reaching examples of “manifestly deficient” protection of Convention rights, thereby setting a relatively low threshold. For a discussion see Florence Benoit-Rohmer, A propos de l’arrêt Bosphorus Air Lines du 30 juin 2005: L’adhésion contrainte de l’Union à la Convention, 16 Revue trimestrielle des droits de l’homme 827, 850–51 (2005).
30 Segi v. 15 States of the European Union, 2002-V Eur. Ct. H.R. In that case the Court declared an application against 15 European Union member states inadmissible because Article 4 of Common Position No. 2001/931/CFSP of 27 December 2001 on the Application of Specific Measures to Combat Terrorism, 2001 O.J. (L 344) 93, did no more than ask for increased cooperation of member states’ police and judicial authorities against designated terrorist organizations—without adding new powers that could be exercised against the applicants.
31 Case T-315/01, Kadi v. Council (Eur. Ct. First Instance September 21, 2005). The judgment is currently pending on appeal before the European Court of Justice.
32 Senator Lines GmbH v. 15 Member States of the European Union, 2004-IV Eur. Ct. H.R.
33 Case T-191-98, Senator Lines GmbH v. Commission, 2003 ECR II-3275.
34 Jean-Paul Jacqué, Droit communautaire et Convention européenne des droits de l’homme, L’Arrêt Bosphorus, une jurisprudence “Solange II” de la Cour européenne des droits de l’homme? 41 Revue trimestrielle de droit euro!-!p<acute;e;;-10u>en 756, 757–58 (2005).
* The views expressed herein are solely those of the author.