BOSPHORUS HAVA YOLLARI TURİZM VE TİCARET ANONİM ŞİRKETİ
v. IRELAND JUDGMENT
29
taken proceedings in tort, contract or under the Constitution instead of, or
during, its action in judicial review. It had not, moreover, been
demonstrated that such proceedings offered any real prospects of success
thereafter. The final decision, for the purposes of Article 35 § 1 of the
Convention and the six-month time-limit, was that of the Supreme Court of
November 1996 which applied the ECJ's ruling. Finally, the Chamber found
that the parties' submissions about the applicant company's bona fides made
under Article 35 § 3 of the Convention and under Article 1 of Protocol No.
1 were the same and, further, that the bona fides issue was so closely bound
up with the merits of the complaint under the latter Article that it was
appropriate to join it to the merits.
103. The Grand Chamber is not precluded from deciding admissibility
questions at the merits stage: the Court can dismiss applications it considers
inadmissible “at any stage of the proceedings”, so that even at the merits
stage (and subject to Rule 55 of the Rules of Court) it may reconsider an
admissibility decision where it concludes that the application should have
been declared inadmissible for one of the reasons listed in Article 35 of the
Convention (see Pisano v. Italy (striking out) [GC], no. 36732/97, § 34,
24 October 2002, and Odièvre v. France [GC], no. 42326/98, §§ 21-23,
ECHR 2003-III).
104. However, the Grand Chamber observes that the present preliminary
objections are precisely the same as those raised before the Chamber, and
dismissed by the latter in its admissibility decision, and it sees no reason to
depart from the Chamber's conclusions in those respects. In particular, the
Government have made no new legal submissions to the Grand Chamber as
regards their exhaustion of domestic remedies and time-limit objections.
While they have made additional factual submissions as regards the
applicant company's bona fides upon which their abuse of process claim is
based, this does not affect in any respect the Chamber's view that the bona
fides issue would fall to be examined, if at all, as part of the merits of the
complaint under Article 1 of Protocol No. 1.
105. Without prejudice to the question of whether it is open to a third
party admitted to a case following its admissibility to make a preliminary
objection, the Grand Chamber does not consider that the above-noted
comment of the European Commission warrants a conclusion that the
applicant company failed to exhaust domestic remedies. Regulation (EC)
no. 2472/94 expressly excluded from its provisions aircraft already
impounded under Regulation (EEC) no. 990/93 and the applicant company
had already challenged, in the very domestic proceedings to which the
European Commission referred, the lawfulness of the original impoundment
under Regulation (EEC) no. 990/93.
106. The Court therefore dismisses all preliminary objections before it.
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