Bosphorus Hava Yollari Turizm ve Ticaret as v Minster for Transport, Energy and Communications (Case C-84/95)

• Jurisdiction: Ireland
• Judge: O'Flaherty J.,Hamilton C.J.
• Judgment Date: 01 January 1997
• Neutral Citation: 1997 WJSC-SC 215,2000 WJSC-SC 318
• Court: Supreme Court
• Docket Number: [1995 No. 98 J.R.; 1996 No. 32 S.C.],32/96
• Date: 01 January 1997

1997 WJSC-SC 215

THE SUPREME COURT

HAMILTON C.J.

O'FLAHERTY J.

BLAYNEY J.

DENHAM J.

238/94

BOSPHORUS HAVA YOLLARI v. MIN TRANSPORT ENERGY & COMMUNICATIONS

BETWEEN:

BOSPHORUS HAVA YOLLARI TURIZM VE TICARET ANONIMSIKETI

Applicant/Respondent

and

MINISTER FOR TRANSPORT, ENERGY AND COMMUNICATIONS,IRELAND AND THE ATTORNEY GENERAL

Defendants/Appellants

Citations:

EEC REG 990/93 ART 8

TREATY OF ROME ART 177

Synopsis:

AVIATION

Appeal - aircraft operating from outside E.U. - decision to impound aircraft deemed ultra vires - whether Article 8 Council Regulation (EEC) No. 990/93 applicable - interpretation of regulation - Article 177 reference to ECJ. Held: Appeal allowed - bound by decision of ECJ - (Supreme Court: Hamilton C.J., O'Flaherty J., Blayney J., Denham J. - 29/11/1996)

|Bosphorus Hava Yallari v. The Minister for Transport, Energy & Communications & Ors|

1 Judgment delivered on the 29th day of November 1996 by Hamilton C.J. [NEM DISS]

2 This was an appeal brought by the Defendants in these proceedings against the judgment delivered by Mr. Justice Murphy on the 21st day of June 1994 and the order of that date made inpursuance thereof.

3 By the said order, the High Court declared that the aircraft Registration No. TC/CYO, the subject matter of these proceedings is not an aircraft to which Article 8 of Council Regulation (EEC) 990/93 applies not being an aircraft in which a majority or controlling interest held by a person or undertaking in or operating from the Federal Republic of Yugoslavia (Serbia and Montenegro) and that the decision of the first named Appellant dated the 8th day of June 1990 to impound the said aircraft was ultra vires the said Appellant.

4 As stated in the judgment of the High Court the issue in this casewas

5 whether the Minister for Transport, Energy and Communications or Ireland was bound by virtue of Article 8 of Council Regulation (EEC) No. 990/93 to impound on the 8th June 1993 an aircraft Boeing 737/300 Aircraft Registration No.TC/CYO then located at Dublin Airport.

6 The Appellants appealed against the said order of the High Court to this Court and as the matter concerned the interpretation of Article 8 of Regulation No. 990/93/EEC this Court stayed the proceedings on the appeal and referred the following question to the European Court of Justice for a preliminary ruling in accordance with the provisions of Article 177 of the Treaty.

"Is Article 8 of Regulation No. 990/93/EEC to be construed as applying to an aircraft which is owned by an undertaking the majority or controlling interest in which is held by an undertaking in the Federal Republic of Yugoslavia (Serbia and Montenegro) where such aircraft has been leased by the owner for a term of four years from the 22nd day of April 1992 to an undertaking the majority or controlling interest in which is not held by a person or undertaking in or operating from the said Federal Republic of Yugoslavia (Serbia andMontenegro)."

7 By its judgment delivered on the 30th day of July 1996, the said Court of Justice answered the said question in the following terms:

"Article 8 of Council Regulation (EEC) No. 990/93 of 26 April 1993 concerning trade between the European Economic Community and the Federal Republic of Yugoslavia (Serbia and Montenegro) applies to an aircraft which is owned by an undertaking based in or operating from the Federal Republic of Yugoslavia (Serbia and Montenegro), 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 or operating from that republic has a majority or controlling interest."

8 This Court is bound by that decision and on the basis of that decision, the appeal brought by the Appellants herein must be allowed and the order of the High Court set aside.

9 jud64

2000 WJSC-SC 318

THE SUPREME COURT

Hamilton C.J.

O'Flaherty J.

Blayney J.

32/96

BOSPHORUS v. MINISTER FOR TRANSPORT

BOSPHOROUS HAVA YOLLARI TURIZM VE TICARET ANONIM SIRKETI

Applicant/Respondent

.v.

THE MINISTER FOR TRANSPORT, ENERGY AND COMMUNICATIONS, IRELAND AND THE ATTORNEY GENERAL

Respondents/Appellants

Citations:

TREATY OF ROME ART 177

EEC REG 990/93 ART 9

EEC REG 990/93 ART 1(d)

REDMOND V IRELAND 1992 2 IR 362

EMERALD MEATS V MIN FOR AGRICULTURE 1993 2 IR 443

Synopsis:

[1997] 2 IR 18

1 Judgment (ex-tempore) delivered on the 9th day of February, 1996 by O'Flaherty J.

2 The background to this litigation is to be found first of all in a judgment of Mr. Justice Murphy delivered on the 21st June, 1994, which led to an appeal to this Court, which in turn led to a reference under Article 177 of the Treaty of Rome to the Court of Justice at Luxembourg. The second phase operation is set forth in the judgment delivered by Mr. Justice Barr on the 22nd January, 1996, in which he found in favour of the applicants in judicial review proceedings and quashed the decision of the Minister which had ordered the detention of the aircraft in question. This aircraft has been detained for upwards of three years at Dublin Airport. The judge held that the Minister had been guilty of undue delay in reaching a decision as to whether or not the...