12
BOSPHORUS HAVA YOLLARI TURİZM VE TİCARET ANONİM ŞİRKETİ
v. IRELAND JUDGMENT
activity because it would destroy and obliterate the business of a wholly
innocent party when the FRY owners had already been punished by having
their bank accounts blocked. The ECJ did not find this persuasive:
“It is settled case-law that the fundamental rights invoked by [the applicant
company] are not absolute and their exercise may be subject to restrictions justified by
objectives of general interest pursued by the Community (see [the above-cited Hauer
case]; Case 5/88, Wachauf v. Bundesamt fuer Ernaehrung und Forstwirtschaft [1989]
ECR 2609; and Case C-280/93, Germany v. Council [1994] ECR I-4973).
Any measure imposing sanctions has, by definition, consequences which affect the
right to property and the freedom to pursue a trade or business, thereby causing harm
to persons who are in no way responsible for the situation which led to the adoption of
the sanctions.
Moreover, the importance of the aims pursued by the regulation at issue is such as to
justify negative consequences, even of a substantial nature, for some operators.
The provisions of [Regulation (EEC) no. 990/93] contribute in particular to the
implementation at Community level of the sanctions against the [FRY] adopted, and
later strengthened, by several resolutions of the Security Council of the United
Nations. ...
It is in the light of those circumstances that the aim pursued by the sanctions
assumes a special importance, which is, in particular, in terms of [Regulation (EEC)
no. 990/93] and more especially the eighth recital in the preamble thereto, to dissuade
the [FRY] from 'further violating the integrity and security of the Republic of BosniaHerzegovina and to induce the Bosnian Serb party to cooperate in the restoration of
peace in this Republic'.
As compared with an objective of general interest so fundamental for the
international community, which consists in putting an end to the state of war in the
region and to the massive violations of human rights and humanitarian international
law in the Republic of Bosnia-Herzegovina, the impounding of the aircraft in question,
which is owned by an undertaking based in or operating from the [FRY], cannot be
regarded as inappropriate or disproportionate.”
55. The answer to the Supreme Court's question was therefore:
“Article 8 of Council Regulation (EEC) no. 990/93 of 26 April 1993 concerning
trade between the European Economic Community and the [FRY] applies to an
aircraft which is owned by an undertaking based in or operating from the [FRY], even
though the owner has leased it for four years to another undertaking, neither based in
nor operating from [the FRY] and in which no person or undertaking based in or
operating from [the FRY] has a majority or controlling interest.”
56. On 6 August 1996 the Minister reinstated the impounding of the
aircraft under Article 8 of Regulation (EEC) no. 990/93.