Bosphorus European Court of Human Rights: Limited responsibility of European Union member states for actions within the scope of Community law. Judgment of 30 June 2005, Bosphorus Airways v. Ireland, Application No. 45036/98

European Constitutional Law Review

Volumn 2, Issue 3, 2006, Pages 443-455

  Peers, Steve ^a  

^a UNIVERSITY OF ESSEX   (United Kingdom)

Author keywords

Bosphorus; Cantoni; Cilfit; Community action; Community law; Compromise position; European convention on human rights; European Court of Justice; European Union; International organizations; Kandova; Legal basis; Matthews; Member states; Member states' action; Responsibility; Review; Scope; Transfer of sovereignty

Indexed keywords

EID: 34548182448     PISSN: 15740196     EISSN: 17445515     Source Type: Journal    
DOI: 10.1017/S1574019606004433     Document Type: Article

References (32)

1. Case 4/73 Nold [1974] ECR 491.
2. Case-law beginning with Case 222/84 Johnston [1986] ECR 1651.
3. Opinion 2/94 [1996] ECR I-1759.
4. The first such reference in a Court judgment was in Case C-13/94 P v. S [1995] ECR I-2159.
5. For an appraisal of this case-law (up until 2002), see S. Peers, 'The European Court of Justice and the European Court of Human Rights: Comparative Approaches', in E. Orucu (ed.), Judicial Comparativism in Human Rights Cases (UKNCCL, 2003) p. 107.
6. Case C-94/00 Roquette Freres [2002] ECR I-9011 (For the purposes of determining the scope of [a human rights principle] .... regard must be had to the case-law of the European Court of Human Rights subsequent to the [ECJ] judgment in Hoechst');
7. Joined Cases C-238/99 P, C-244/99 P, C-245/99 P, C-247/99 P. C-250/99 P to C-252/99 P and C-254/99 P LVM and others ('PVC II') [20021 ECR I-8375, para. 274 ('[t]he parties agree that, since Orkem, there have been further developments in the case-law of the European Court of Human Rights which the Community judicature must take into account when interpreting the fundamental rights');
8. Case C-276/01 Steffensen [2003] ECR I-3735, para. 72 ('account must be taken of ... the right to a fair hearing before a tribunal, as laid down in Article 6(1) of the ECHR and as interpreted by the European Court of Human Rights');
9. and Case C-105/03 Pupino [2005] ECR I-5285, para. 59 ('The Framework Decision must ... be interpreted in such a way that fundamental rights, including in particular the right to a fair trial as set out in Article 6 of the Convention and interpreted by the European Court of Human Rights, are respected').
10. Reports 1999-I.
11. See the (in)admissibility decisions in Senator Lines v. EU Member States (Reports 2004-IV) and Emesa Sugar v. Netherlands (13 Jan. 2005).
12. Case C-84/95 [1996] ECR I-3953, para 21.
13. On that jurisprudence, see A. Riza Coban, Protection of Property Rights within the European Convention on Human Rights (Ashgate, 2004).
14. Para. 148 of the judgment.
15. The Court referred here to Case 6/64 Costa v. ENEL [1964] ECR 585, which established the EC law principle of supremacy.
16. Judges Rozakis, Tulkens, Traja, Botoucharova, Zagrebelsky and Garlicki.
17. The applicants referred in particular to the following cases in para. 117 of the judgment: T.I. v. the United Kingdom (Dec.), No. 43844/98, ECHR 2000-III;
18. M. & Co.; Van de Huck v. the Netherlands, judgment of 19 April 1994, Series A No. 288;
19. Procola v. Luxembourg, judgment of 28 Sept. 1995, Series A No. 326;
20. Cantoni v. France; Hornsby v. Greece; Pafitis and Others v. Greece, judgment of 26 Feb. 1998, Reports 1998-I;
21. Matthews; S.A. Dangeville v. France, No. 36677/97, judgment of 16 April 2002;
22. and Société Colas Est and Others v. France, no. 37971/97, ECHR 2002-III).
23. See, for instance, Case C-7/98 Krombach [2000] ECR I-1935.
24. See notably Case C-71/02 Karner [2004] ECR I-3025 and apparently C-109/01 Akrich [2003] ECR I-9607.
25. See Art. 68 EC.
26. Art. 34 EU; see in particular Pupino (n. 5 above)
27. and generally S. Peers, EU Justice and Home Affairs Law, 2nd edn. (forthcoming, OUP 2006) ch. 2.
28. Only 14 member states have accepted the Court's jurisdiction. It should be noted that the Court has shown some willingness to reinterpret the scope of its jurisdiction in order to ensure effective judicial protection: Case C-160/03 Spain v. Eurojust [2005] ECR I-2077.
29. See further S. Peers, ibid.
30. Some of these points are discussed in detail by the concurring opinion of Judge Ress.
31. See the Opinion of 6 April 2006 in Cases C-145/04 Spain v. UK
32. and C-300/04 Eman and Sevinger, pending.