54
BOSPHORUS HAVA YOLLARI TURİZM VE TİCARET ANONİM ŞİRKETİ
v. IRELAND JUDGMENT
CONCURRING OPINION OF JUDGE RESS
1. This judgment demonstrates how important it will be for the European
Union to accede to the European Convention of Human Rights in order to
make the control mechanism of the Convention complete, even if this
judgment has left the so-called M. & Co. approach far behind
(no. 13258/87, Commission decision of 9 February 1990, Decisions and
Reports 64). It has accepted the Court's jurisdiction ratione loci, personae
and materiae under Article 1 of the Convention, clearly departing from an
approach which would declare the European Communities immune, even
indirectly, from any supervision by this Court. On the examination of the
merits of the complaint, the question is whether there exists a reasonable
relationship of proportionality between the interference with the applicant
company's property, on the one hand, and the general interest, on the other.
On the basis of its case-law, the Court developed, in particular in Waite and
Kennedy v. Germany ([GC], no. 26083/94, ECHR 1999-I), a special ratio
decidendi regarding the extent of its scrutiny in cases concerning
international and supranational organisations. I can agree with the result in
this case that there was no violation of Article 1 of Protocol No. 1 and that
the interference with the use of the applicant company's property – in the
general interest of safeguarding the sanctions regime of the United Nations
and the European Community – did not go beyond the limits any trading
company must be prepared to accept in the light of that general interest. One
could argue that to come to this conclusion the whole concept of presumed
Convention compliance by international organisations, and in particular by
the European Community, was unnecessary and even dangerous for the
future protection of human rights in the Contracting States when they
transfer parts of their sovereign power to an international organisation.
2. The judgment should not be seen as a step towards the creation of a
double standard. The concept of a presumption of Convention compliance
should not be interpreted as excluding a case-by-case review by this Court
of whether there really has been a breach of the Convention. I subscribe to
the finding of the Court that there exists within the European Community an
effective protection of fundamental rights and freedoms including those
guaranteed by the Convention even if the access of individuals to the ECJ is
rather limited, as the Court has recognised, if not criticised, in
paragraph 162 of the judgment. The Court has not addressed the question of
whether this limited access is really in accordance with Article 6 § 1 of the
Convention and whether the provisions, in particular, of former Article 173
of the EC Treaty should not be interpreted more extensively in the light of
Article 6 § 1 of the Convention, a point that was in issue before both the
Court of First Instance and the ECJ in Jégo-Quéré & Cie S.A. v.
Commission of the European Communities (Case T-177/01 [2002]
Select target paragraph3
Connect to a paragraph
Connect to an entity
Disable highlights
Add to table of contents