Bosphorus Hava Yollari Turizm ve Ticaretas v Minister for Transport, Energy and Communications and others: ECJ 30 Jul 1996

ECJ (Judgment) Article 8 of Regulation No 990/93 concerning trade between the European Economic Community and the Federal Republic of Yugoslavia, which provides that ‘all vessels, freight vehicles, rolling stock and aircraft in which a majority or controlling interest is held by a person or undertaking in or operating from the Federal Republic of Yugoslavia (Serbia and Montenegro) shall be impounded by the competent authorities of the Member States’, applies to an aircraft which is owned by an undertaking based in or operating from the Federal Republic of Yugoslavia, even though the owner has leased it for four years to another undertaking, neither based in nor operating from that republic and in which no person or undertaking based in that republic has a majority or controlling interest.
It follows both from the wording of that provision and from the context and aims of the regulation, which implements in the Community certain aspects of the sanctions taken against the Federal Republic of Yugoslavia by the Security Council of the United Nations, and also from the text and the aim of the resolutions adopted by the Security Council on the basis of Chapter VII of the Charter of the United Nations, that it applies to an any aircraft which is the property of a person or undertaking based in or operating from the Federal Republic of Yugoslavia, and that it is not necessary for that person or undertaking also to have actual control of the aircraft.
Fundamental rights such as the right to peaceful enjoyment of property and the freedom to pursue a commercial activity are not absolute and their exercise may be subject to restrictions justified by objectives of general interest pursued by the Community.
Those restrictions may be substantial where the aims pursued are themselves of substantial importance.
That is precisely the case as regards Regulation No 990/93, the aim of which is to contribute at Community level to the implementation of the sanctions against the Federal Republic of Yugoslavia adopted by the Security Council of the United Nations, since that regulation pursues an objective of general interest which is fundamental for the international community, namely to put 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 under that regulation of an aircraft which is owned by an undertaking based in the Federal Republic of Yugoslavia, but has been leased for four years to another undertaking neither based in nor operating from that republic and in which no person or undertaking based in or operating from that republic has a majority or controlling interest, cannot therefore be regarded as inappropriate or disproportionate.
The Irish authorities were entitled to detain an aircraft owned by an undertaking based in Yugoslavia, but leased to a wholly innocent Turkish operator for three years, pursuant to the Regulation which imposed economic sanctions on Yugoslavia to compel it to desist from intervening in the conflict in Bosnia-Herzegovina. The court rejected any proposition that interference with the Turkish company’s property must be no more than was necessary to accomplish the objective of the measure taken in the public interest, but said that: ‘If it were demonstrated that such interference was wholly unreasonable in the light of the aims which the competent authorities sought to achieve, then it would be necessary for the this Court to intervene.’ Furthermore, when determining whether a fair balance had been struck, ‘the state enjoys a wide margin of appreciation with regard to the means chosen to be employed and [my emphasis] to the question of whether the consequences are justified in the general interest for the purpose of achieving the objective pursued’

C-84/95, [1996] EUECJ C-84/95, [1996] ECR-I 3953 C
Bailii
Regulation No 990/93 concerning trade between the European Economic Community and the Federal Republic of Yugoslavia 8
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Updated: 11 November 2021; Ref: scu.161546