BOSPHORUS HAVA YOLLARI TURİZM VE TİCARET ANONİM ŞİRKETİ
v. IRELAND JUDGMENT
7
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.
E. The first judicial review proceedings: the High Court
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]. ...”