BOSPHORUS HAVA YOLLARI TURİZM VE TİCARET ANONİM ŞİRKETİ
v. IRELAND JUDGMENT
31
110. Moreover, the Government considered that Ireland had acted out of
obligation and that the European Community and the United Nations
provided human rights protection equivalent to that of the Convention.
As to the international obligations of the Irish State, the Government
argued that it had complied with mandatory obligations derived from UNSC
Resolution 820 (1993) and Regulation (EEC) no. 990/93. As a matter of
Community law, a regulation left no room for the independent exercise of
discretion by the State. The direct effectiveness of Regulation (EEC)
no. 990/93 meant that Statutory Instrument no. 144 of 1993 had no bearing
on the State's legal obligation to impound. The ECJ later conclusively
confirmed the applicability of Article 8 of Regulation (EEC) no. 990/93
and, thereby, the lawful basis for the impoundment. Even if the jurisdiction
of the ECJ in a reference case could be considered limited, it had
authoritatively resolved the present domestic action.
For the State to have done anything other than apply the ECJ ruling, even
with a view to its Convention compliance, would have been contrary to its
obligation of “loyal cooperation” (Article 5, now Article 10, of the EC
Treaty – see paragraph 82 above) and undermined the special judicial
cooperation between the national court and the ECJ envisaged by
Article 177 (now Article 234) of the EC Treaty (see paragraphs 96-99
above). As to the applicant company's suggestion that the Supreme Court
should have awarded compensation while applying the ECJ ruling, the
Government considered that it was implicit in the opinion of the Advocate
General in the ruling of the ECJ and in the second sentence of Article 8 of
Regulation (EEC) no. 990/93 that that regulation did not envisage the
payment of compensation. If the scheme envisaged was one of detention
without compensation, it would be contrary to the principle of uniform
application and supremacy of Community law for member States
nevertheless to consider making an award.
Finally, the Government found unconvincing the applicant company's
suggestion that the Supreme Court had exercised discretion in not taking
account of the intervening relaxation of the sanctions regime. If the initial
impoundment was lawful (under Article 8 of Regulation (EEC) no. 990/93
as confirmed by the ECJ), by definition, the partial relaxation of the
sanctions regime in October 1994 did not apply to the applicant company's
aircraft as it had already been lawfully impounded. The terms of Regulation
(EC) no. 2472/94 were as mandatory and clear as those of Regulation (EEC)
no. 990/93. It was, indeed, for this reason that a second reference to the ECJ
raising Regulation (EC) no. 2472/94 would have been possible but
pointless.
111. As to the equivalence of the European Community human rights
protection, the Government pointed to, inter alia, Article 6 of the Treaty on
European Union, the judicial remedies offered by the ECJ and the national
courts, the reliance on Convention provisions and jurisprudence by the ECJ
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