50
BOSPHORUS HAVA YOLLARI TURİZM VE TİCARET ANONİM ŞİRKETİ
v. IRELAND JUDGMENT
JOINT CONCURRING OPINION OF JUDGES ROZAKIS,
TULKENS, TRAJA, BOTOUCHAROVA, ZAGREBELSKY
AND GARLICKI
(Translation)
While we are in agreement with the operative provisions of the
judgment, namely that there has been no violation of Article 1 of Protocol
No. 1 in the instant case, we do not agree with all the steps in the reasoning
followed by the majority, nor all aspects of its analysis. Accordingly, we
wish to clarify certain points we consider important.
1. In examining Article 1 of the Convention, the judgment rightly points
out, on the basis of the Court's case-law, that it follows from the wording of
that provision that the States Parties must answer for any infringement of
the rights and freedoms protected by the Convention committed against
persons placed under their “jurisdiction” (see paragraph 136). It concludes
that the applicant company's complaint is compatible not only ratione loci
(which was not contested) and ratione personae (which was not in issue)
but also ratione materiae with the provisions of the Convention (see
paragraph 137). Thus, the Court clearly acknowledges its jurisdiction to
review the compatibility with the Convention of a domestic measure
adopted on the basis of a Community regulation and, in so doing, departs
from the decision of the European Commission of Human Rights of
9 February 1990 in M. & Co. v. the Federal Republic of Germany
(no. 13258/87, Decisions and Reports 64, p. 138).
It has now been accepted and confirmed that the principle that Article 1
of the Convention makes “no distinction as to the type of rule or measure
concerned” and does “not exclude any part of the member States'
'jurisdiction' from scrutiny under the Convention” (see United Communist
Party of Turkey and Others v. Turkey, judgment of 30 January 1998,
Reports of Judgments and Decisions 1998-I, pp. 17-18, § 29) also applies to
Community law. It follows that the member States are responsible, under
Article 1 of the Convention, for all acts and omissions of their organs,
whether these arise from domestic law or from the need to fulfil
international legal obligations.
2. In examining the alleged violation of Article 1 of Protocol No. 1, and
having determined the applicable rule and the legal basis for the impugned
interference, the Court's task was to examine whether there was a
reasonable relationship of proportionality between the means employed and
the aim sought to be achieved and, consequently, to determine if a fair
balance had been struck between the demands of the general interest
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