BOSPHORUS HAVA YOLLARI TURİZM VE TİCARET ANONİM ŞİRKETİ
v. IRELAND JUDGMENT
43
body appointed by the United Nations to interpret the UNSC resolution
implemented by the regulation in question.
147. The Court would also agree with the Government and the European
Commission that the Supreme Court had no real discretion to exercise,
either before or after its preliminary reference to the ECJ, for the reasons set
out below.
In the first place, there being no domestic judicial remedy against its
decisions, the Supreme Court had to make the preliminary reference it did
having regard to the terms of Article 177 (now Article 234) of the EC
Treaty and the judgment of the ECJ in CILFIT (see paragraph 98 above):
the answer to the interpretative question put to the ECJ was not obvious (the
conclusions of the Sanctions Committee and the Minister for Transport
conflicted with those of the High Court); the question was of central
importance to the case (see the High Court's description of the essential
question in the case and its consequential judgment from which the Minister
appealed to the Supreme Court – paragraphs 35-36 above); and there was no
previous ruling by the ECJ on the point. This finding is not affected by the
observation in the Court's decision in Moosbrugger (cited and relied on by
the applicant company – see paragraph 116 above) that an individual does
not per se have a right to a referral.
Secondly, the ECJ ruling was binding on the Supreme Court (see
paragraph 99 above).
Thirdly, the ruling of the ECJ effectively determined the domestic
proceedings in the present case. Given the Supreme Court's question and the
answer of the ECJ, the only conclusion open to the former was that
Regulation (EEC) no. 990/93 applied to the applicant company's aircraft. It
is moreover erroneous to suggest, as the applicant company did, that the
Supreme Court could have made certain orders additional to the ECJ ruling
(including a second “clarifying” reference to the ECJ) as regards
impoundment expenses, compensation and the intervening relaxation of the
sanctions regime. The applicant company's motion and affidavit of October
1996 filed with the Supreme Court did not develop these matters in any
detail or request that court to make such supplemental orders. In any event,
the applicant company was not required to discharge the impoundment
expenses.
The fact that Regulation (EEC) no. 990/93 did not admit of an award of
compensation was implicit in the findings of the Advocate General and the
ECJ (each considered the application of the regulation to be justified despite
the hardship it implied) and in the expenses provisions of the second
sentence of Article 8 of the regulation. Consequently, the notions of uniform
application and supremacy of Community law (see paragraphs 92 and 96
above) prevented the Supreme Court from making such an award. As noted
in paragraph 105 above, Regulation (EC) no. 2472/94 relaxing the sanctions
regime as implemented in the European Community from October 1994
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