Bosphorus Hava Yollari Turizm veTicaret Anonim Sirketi v Ireland, App. No. 45036/98, European Court of Human Rights, 30 June 2005

Tobias Lock

Relevance of the case

Bosphorus is relevant in that the European Court of Human Rights (ECtHR) introduced the so-called Bosphorus presumption: if a member state of an organization acted in compliance with an obligation arising from its membership and had no discretion, there is a rebuttable presumption that the member state has complied with its obligations under the European Convention on Human Rights (ECHR) provided that the organization itself ensures a protection of fundamental rights equivalent to what the Convention requires. If that is so, the presumption can only be rebutted if this protection was manifestly deficient.1

I. Facts of the case

Bosphorus Airways, a Turkish airline, brought an aircraft, which it had leased from the Yugoslav National Airlines, to Dublin for a service. Upon its arrival the Irish authorities impounded the aircraft on the basis of an EU Regulation, which was itself based on sanctions imposed on the Federal Republic of Yugoslavia by the UN Security Council.[1] [2] The Regulation provided that all ‘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’. Bosphorus challenged this in the Irish courts. The Irish Supreme Court requested a preliminary ruling from the Court of Justice of the European Union (CJEU), which held that the interference with Bosphorus’ property rights was justified since the overall objective of the sanctions was to end the war on the Balkans. Having exhausted all remedies in the Irish courts, Bosphorus brought a case against Ireland to the ECtHR claiming a violation of its right to property guaranteed by art. 1 Protocol 1 ECHR.

II. Legal question

In Bosphorus Ireland found itself in a legal dilemma: it could either disobey its obligations stemming from the Regulation in order to uphold its obligations under the ECHR or (potentially) violate the ECHR and comply with its obligations under EU law.

The key legal question was whether Ireland could be held responsible for the alleged violation of the ECHR given that the Irish authorities had acted under a strict duty arising from Ireland’s membership of the EU. The earlier Matthews decision[3] suggested that this would be the case considering that the Court had held that parties to the ECHR were allowed to transfer competences to international organizations, but that their responsibility continued after such a transfer.[4]

The key difference between Matthews and Bosphorus was that in Matthews the member state had acted under an obligation found in primary EU law, that is an obligation which had the same legal status as the EU Treaties, whereas the Regulation in Bosphorus constituted a piece of EU legislation, that is it had been adopted in accordance with the EU’s legislative procedures. Another difference was that in Bosphorus the CJEU had already considered the Regulation to be in compliance with fundamental rights[5] so that by finding a violation of the ECHR, the ECtHR would indirectly find the CJEU to have wrongly upheld the Regulation. In addition, the Regulation was itself based on a Resolution by the UN Security Council so that the ECtHR was also at risk of second-guessing another august body and calling into question the primacy of obligations arising under the UN Charter as provided for by art. 103 UN Charter.

III. Excerpts

Having found that the alleged violation occurred within the jurisdiction of the Irish State and that art. 1 Protocol 1 ECHR had been interfered with, the Grand Chamber went on to discuss whether the interference was justified.

  • 149. [...] there must exist a reasonable relationship of proportionality between the means employed and the aim sought to be realised: the Court must determine whether a fair balance has been struck between the demands of the general interest in this respect and the interest of the individual company concerned. In so determining, the Court recognises that the State enjoys a wide margin of appreciation with regard to the means to be employed and to the question of whether the consequences are justified in the general interest for the purpose of achieving the objective pursued [...].
  • 150. [...] the general interest pursued by the impugned measure was compliance with legal obligations flowing from the Irish State’s membership of the European Community. It is, moreover, a legitimate interest of considerable weight. [.]
  • 154. In [...] establishing the extent to which a State’s action can be justified by its compliance with obligations flowing from its membership of an international organisation to which it has transferred part of its sovereignty, the Court has recognised that absolving Contracting States completely from their Convention responsibility in the areas covered by such a transfer would be incompatible with the purpose and object of the Convention [...].
  • 155. In the Court’s view, State action taken in compliance with such legal obligations is justified as long as the relevant organisation is considered to protect fundamental rights, as regards both the substantive guarantees offered and the mechanisms controlling their observance, in a manner which can be considered at least equivalent to that for which the Convention provides [...]. By ‘equivalent’ the Court means ‘comparable’; any requirement that the organisation’s protection be ‘identical’ could run counter to the interest of international cooperation pursued (see paragraph 150 above). However, any such finding of equivalence could not be final and would be susceptible to review in the light of any relevant change in fundamental rights protection.
  • 156. If such equivalent protection is considered to be provided by the organisation, the presumption will be that a State has not departed from the requirements of the Convention when it does no more than implement legal obligations flowing from its membership of the organisation.

However, any such presumption can be rebutted if, in the circumstances of a particular case, it is considered that the protection of Convention rights was manifestly deficient. In such cases, the interest of international cooperation would be outweighed by the Convention’s role as a ‘constitutional instrument of European public order’ in the field of human rights (see Loizidou v. Turkey (preliminary objections), judgment of 23 March 1995, Series A no. 310, pp. 27-28, § 75).

  • 157. It remains the case that a State would be fully responsible under the Convention for all acts falling outside its strict international legal obligations. [...] Matthews can also be distinguished: the acts for which the United Kingdom was found responsible were ‘international instruments which were freely entered into’ by it (see paragraph 33 of that judgment). [...].
  • 158. Since the impugned measure constituted solely compliance by Ireland with its legal obligations flowing from membership of the European Community (see paragraph 148 above), the Court will now examine whether a presumption arises that Ireland complied with the requirements of the Convention in fulfilling such obligations and whether any such presumption has been rebutted in the circumstances of the present case.
  • (b) Whether there was a presumption of Convention compliance at the relevant time
  • 159. The Court has described above (see paragraphs 73-81) the fundamental rights guarantees of the European Community which apply to member States, Community institutions and natural and legal persons (‘individuals’). While the founding treaties of the European Communities did not initially contain express provisions for the protection of fundamental rights, the ECJ subsequently recognised that such rights were enshrined in the general principles of Community law protected by it, and that the Convention had a ‘special significance’ as a source of such rights. Respect for fundamental rights has become ‘a condition of the legality of Community acts’ (see paragraphs 73-75 above, together with the opinion of the Advocate General in the present case, paragraphs 45-50 above) and in carrying out this assessment the ECJ refers extensively to Convention provisions and to this Court’s jurisprudence. At the relevant time, these jurisprudential developments had been reflected in certain treaty amendments (notably those aspects of the Single European Act of 1986 and of the Treaty on European Union referred to in paragraphs 77-78 above). This evolution has continued. The Treaty of Amsterdam of 1997 is referred to in paragraph 79 above.

Although not fully binding, the provisions of the Charter of Fundamental Rights of the European Union were substantially inspired by those of the Convention, and the Charter recognises the Convention as establishing the minimum human rights standards. Article I-9 of the later Treaty establishing a Constitution for Europe (not in force) provides for the Charter to become primary law of the European Union and for the Union to accede to the Convention (see paragraphs 80-81 above).

  • 160. However, the effectiveness of such substantive guarantees of fundamental rights depends on the mechanisms of control in place to ensure their observance.
  • 161. The Court has referred (see paragraphs 86-90 above) to the jurisdiction of the ECJ in, inter alia, annulment actions (Article 173, now Article 230, of the EC Treaty), in actions against Community institutions for failure to perform Treaty obligations (Article 175, now Article 232), to hear related pleas of illegality under Article 184 (now Article 241) and in cases against member States for failure to fulfil Treaty obligations (Articles 169, 170 and 171, now Articles 226, 227 and 228).
  • 162. It is true that access of individuals to the ECJ under these provisions is limited: they have no locus standi under Articles 169 and 170; their right to initiate actions under Articles 173 and 175 is restricted as is, consequently, their right under Article 184; and they have no right to bring an action against another individual.
  • 163. It nevertheless remains the case that actions initiated before the ECJ by the Community institutions or a member State constitute important control of compliance with Community norms to the indirect benefit of individuals. Individuals can also bring an action for damages before the ECJ in respect of the non-contractual liability of the institutions (see paragraph 88 above).
  • 164. Moreover, it is essentially through the national courts that the Community system provides a remedy to individuals against a member State or another individual for a breach of Community law (see paragraphs 85 and 91 above). Certain EC Treaty provisions envisaged a complementary role for the national courts in the Community control mechanisms from the outset, notably Article 189 (the notion of direct applicability, now Article 249) and Article 177 (the preliminary reference procedure, now Article 234). It was the development by the ECJ of important notions such as the supremacy of Community law, direct effect, indirect effect and State liability (see paragraphs 92-95 above) which greatly enlarged the role of the domestic courts in the enforcement of Community law and its fundamental rights guarantees.

The ECJ maintains its control on the application by national courts of Community law, including its fundamental rights guarantees, through the procedure for which Article 177 of the EC Treaty provides in the manner described in paragraphs 96 to 99 above. While the ECJ’s role is limited to replying to the interpretative or validity question referred by the domestic court, the reply will often be determinative of the domestic proceedings (as, indeed, it was in the present case—see paragraph 147 above) and detailed guidelines on the timing and content of a preliminary reference have been laid down by the EC Treaty provision and developed by the ECJ in its case- law. The parties to the domestic proceedings have the right to put their case to the ECJ during the Article 177 process. It is further noted that national courts operate in legal systems into which the Convention has been incorporated, albeit to differing degrees.

  • 165. In such circumstances, the Court finds that the protection of fundamental rights by Community law can be considered to be, and to have been at the relevant time, ‘equivalent’ (within the meaning of paragraph 155 above) to that of the Convention system. Consequently, the presumption arises that Ireland did not depart from the requirements of the Convention when it implemented legal obligations flowing from its membership of the European Community (see paragraph 156 above).
  • (c) Whether the presumption in question has been rebutted in the present case
  • 166. The Court has had regard to the nature of the interference, to the general interest pursued by the impoundment and by the sanctions regime and to the ruling of the ECJ (in the light of the opinion of the Advocate General), a ruling with which the Supreme Court was obliged to and did comply. It considers it clear that there was no dysfunction of the mechanisms of control of the observance of Convention rights.

In the Court’s view, therefore, it cannot be said that the protection of the applicant company’s Convention rights was manifestly deficient, with the consequence that the relevant presumption of Convention compliance by the respondent State has not been rebutted.

IV. Commentary

While Bosphorus reaffirms the Grand Chamber’s Matthews decision in so far as the general responsibility of the member states for actions and omissions based on their EU obligations is concerned, it introduces an important exception to this: if a member state of an organization acted in compliance with an obligation arising from its membership and had no discretion, there is a rebuttable presumption that the member state has complied with its obligations under the Convention provided that the organization itself ensures a protection of fundamental rights equivalent to what the Convention requires. Once established the presumption can only be rebutted if this protection was manifestly deficient.

The ECtHR thus introduced a two-stage test: at the first stage it examines whether an organization provides equivalent protection, which will lead to the presumption to apply but only in cases where the member state had no discretion in implementing its obligations. At the second stage, the ECtHR examines whether the presumption has been rebutted based on a manifest deficit in the protection of human rights in the actual case before it. As a rebuttal of the presumption is unlikely to occur in practice, the key implication is that it results in immunity from review for EU measures provided that there was no discretion for the member state.[6]

A. Rationale behind Bosphorus

What then are the reasons for the Bosphorus presumption? After all, it privileges the EU’s legal order compared with the legal orders of the parties to the ECHR. Some of these orders equally guarantee a very high standard of human rights protection but are still subject to a full scrutiny by the Court. The ECtHR relied on a substantive argument to justify the presumption: the protection of human rights in the EU’s legal order is equivalent to what the Convention requires. It was thus formulated as an acknowledgment of the high quality of the protection of human rights in the EU legal order, which is in particular guaranteed by the ECJ. Hence the ECtHR considered itself in a position where it would be acceptable if it exercised its jurisdiction only in those exceptional cases in which the protection happened to be manifestly deficient.

The question then is why the Bosphorus presumption is limited to cases where the member states had no discretion. In such cases the member states had no opportunity to ‘add’ to a potential violation of the Convention as they were under a strict obligation to implement EU law as if they were the executive branch of the EU so that the member states are in a similar position to agents of the Union. Where the member states had discretion, there is no guarantee that the alleged violation of the Convention is found in provisions pertaining to EU law. The violation may well have been introduced by the member states in the exercise of their discretion so that the presumption of compatibility cannot apply.

It could be argued, however, that the true reasons for the presumption lie elsewhere. The first possible reason is that the ECtHR acted out of comity and deference towards the ECJ.[7] It acknowledged that the ECJ has a monopoly to declare EU legislation invalid. The ECtHR thus attempted to avoid a conflict with the ECJ and sent a signal of respect, in return for the ECJ’s past receptiveness towards the ECtHR’s human rights case law. Evidence for this view can be found in the subsequent case of Michaud where the ECtHR made it very clear that it had acted ‘in the interest of international cooperation’ and in order to avoid a dilemma for the member state.[8] Moreover, the fact that fundamental rights protection in EU law had been developed by the ECJ and the judicial protection given to individuals under the Treaties were central to the ECtHR’s finding that the EU legal order could be considered to provide equivalent protection.[9] A second reason for the Bosphorus presumption is that the member states, and not the EU, would be held responsible for violations of the ECHR. The presumption is thus an acceptance of the fact that the EU, who in such cases is the potential violator of human rights, is not yet bound by the ECHR.[10]

In practical terms Bosphorus raises three questions. The first is under which circumstances a member state is deemed to have had no discretion so that the presumption applies. The second concerns the conditions for the existence of a manifest deficit. The third question is whether the Bosphorus presumption would only apply where the CJEU has had a chance to pronounce itself on the merits of the case.

Regarding the first question on discretion, the Bosphorus decision describes the situation in which a member state is deemed to have discretion ‘where it does no more than implement legal obligations flowing from its membership of the organisation’.[11]

Discretion relates to the question whether the national legislator and national authorities are given a choice of how to comply with their obligations under EU law. In Bosphorus the ECtHR did not make it clear which exact factors it considers relevant when assessing whether the member state had discretion. There are two general possibilities: one would be to adopt a formalistic approach taking into account only the nature of the instrument implemented by the member state; the other possibility would be to make a substantive assessment of the degree of discretion. The latter approach would be in the spirit of the rationale of this aspect of the presumption as the member states should only be able to escape their responsibility where they did not have a chance of committing an additional violation of the Convention.

The ECtHR’s case-law on this question is not entirely clear. For instance, in Michaud the Court emphasized the fact that the legal instrument at issue was a Directive which seemed to suggest that the member state had discretion when complying with its EU law obligations/2 Rather enigmatically the ECtHR then held that the question whether the member state ‘had a margin of manoeuvre capable of obstructing the application of the presumption of equivalent protection is not without relevance.’ Regrettably, the ECtHR then did not elucidate on what this exactly meant, but it considered the presumption not to be applicable here. Thus the very nature of the measure being a Directive seems to have been an important factor (this is reminiscent of the Court’s reasoning in the earlier case of Cantoni v France).13

In this context the treatment of Regulations is interesting. These are directly applicable and do not need to be implemented (art. 289 TFEU). However, as the ECtHR’s case-1 aw shows, it would be premature to conclude that the Bosphorus presumption applies whenever a Regulation is at issue. In Cooperative des agricul- teurs de Mayenne a Regulation gave the member states a choice over which formula to use for calculating a levy for excess production of milkd4 This choice might have suggested that the member states had some discretion in calculating the levy. However, the Court did not take this into account but focused on the method of calculating the amount of the levy, which was defined in the Regulation leading the Court to conclude that the member states had no discretion.[12] The decision can be interpreted in two ways. On the one hand, it suggests that the nature of the measure at hand played a role in the ECtHR’s conclusion that the member state had no discretion. On the other hand, when one considers the precise reasons given for this conclusion, it is clear that the ECtHR focused on the substantive content of the Regulation, which left the member states no choice in how to calculate the levy. The Court’s tendency to use a substantive test was confirmed by the M.S.S. casei[13] [14] [15] where the ECJ held that the Dublin Regulation^ gave some discretion to the member states by allowing them to derogate from the general rule in asylum cases according to which the member state where an asylum seeker first entered the EU is responsible for processing his or her request for asylum. The ECtHR did not take into consideration what legal form the Dublin Regulation had but again looked at the substance. This was equally the case in Povse v Austria where the ECtHR concluded that art. 42 of the Brussels Regulation^ left no discretion to a member state court as to the recognition and enforceability of a judgment by a court from another member state ordering the return of a child/[16] This shows that here, too, the ECtHR looked at the substance of the rule and not at the nature of the legal instrument. The case law subsequent to Bosphorus thus suggests that the ECtHR takes into account the substance of the EU law obligations rather than their form when determining whether a member state had discretion.

The second open question was whether the ECtHR would be willing to apply the Bosphorus presumption even in cases where the ECJ had not made a decision. Given that the main justification for the presumption was the high standard of fundamental rights protection in the Union and given that the finding that there was no manifest deficit in Bosphorus was largely based on the ECJ’s decision in that same case, there would have been good reasons to assume that the ECtHR requires an ECJ decision. The ECtHR’s case-1 aw is not clear in this respect even though the latest decision in Michaud strongly suggests that the ECJ must have ruled on the question at some stage. Michaud contradicts the finding in the earlier Cooperative des agricul- teurs de Mayenne which suggested that a previous ruling is not always necessary.[17] [18] In that case the French Conseil d’Etat had not made a reference to the ECJ but decided the case based on EU law. Without addressing this specific point, the ECtHR nonetheless applied the Bosphorus presumption and held that there was no manifest deficiency in the protection of the applicants’ Convention rights. By contrast, in Michaud the ECtHR suggested that it was crucial that ‘the control mechanism provided for European Union law was fully brought into play’/i For Bosphorus to apply, the ECtHR required that a preliminary reference had to be made unless the CJEU has had ‘an opportunity to examine the question, either in a preliminary ruling delivered in the context of another case, or on the occasion of [another action]’.[19] [20] [21] [22] [23] This was confirmed in Povse where the Court observed that the Austrian Supreme Court had ‘duly made use of the control mechanism provided for in EU law in that it asked the ECJ for a preliminary ruling’” This strict stance on the applicability of the presumption underscores the argument made above as to the true rationale behind it. If the ECtHR were concerned with the presence of substantially equal protection only, the question of a reference would be irrelevant. After all, the EU’s judicial system does not only consist of the CJEU. The courts of the member states are also Union courts so that the presumption should extend to the protection afforded by them where European Union law is at issue” The Court clearly refused to do so and made it obvious that the presumption was introduced as an act of comity towards the ECJ.

The third question relates to the requirement of a manifest deficit for a rebuttal of the presumption. The Bosphorus case did not reveal much on how thoroughly the ECtHR would examine the substance of a claim of manifest deficiency. The following analysis of the Court’s case-law will shed some light on this question. In Bosphorus itself the ECtHR’s consideration was rather superficial. The Court took into consideration the nature of the interference, the general interest pursued, and the ruling of the ECJ. It is not clear what weight each of these points had and how thorough the ECtHR’s examination would be. Given that the ECJ had only conducted a cursory proportionality test in its own Bosphorus ruling” it came as a surprise that the ECtHR only dedicated two paragraphs to the question of manifest deficit and did not enter into a substantive discussion at all. It was thus suggested that the more impressive human rights analysis in the Advocate General’s opinion might have saved the ECJ’s decision from greater Strasbourg scrutiny.26 The concurring judges’ analyses equally maintain that the manifest deficit threshold was relatively low and stood in marked contrast to the scrutiny normally carried out by the Court (concurring opinion of Judges Rozakis et al). Judge Ress presented some examples, which in his eyes would constitute a manifest deficit. Most notably, he referred to a situation in which the ECJ did not follow well-established case law of the ECtHR (concurring opinion of Judge Ress).

The ECtHR has not had many opportunities to consider the existence of a ‘manifest deficit’. The little case-law that exists suggests that it is generally willing to discuss the existence of a manifest deficiency in some detail. However, the ECtHR does not always draw a clear distinction between the applicability of the presumption and its rebuttal. For instance, in Michaud it addressed the question of whether a reference to the ECJ had been made in the context of whether the presumption applied whereas in Povse

the ECtHR interpreted the reasoning concerning the ECJ in Michaud as a rebuttal of the presumption.[24]

The following brief discussion will show that the Court usually enters into a short scrutiny of the merits of the case in order to verify that the protection was not manifestly deficit. Only in Biret no such scrutiny was carried out. There is no apparent reason for this.2[25] The ECtHR’s approach was well demonstrated in Kokkelvisserij where the ECtHR engaged with the substantive question of whether the applicant should have a right to respond to the submissions of the Advocate General^[26] As the Court stated in Bosphorus, it requires a dysfunction of the mechanisms of control of the observance of Convention rights in order for a manifest deficit to exist. This is a high hurdle, as was shown in Povse where the fact that the ECJ had not reviewed the compatibility of the measure at issue with fundamental rights was not seen as sufficient proof for a manifest deficit. The ECtHR considered that the applicants had been in a position to challenge the compatibility with the Convention of the judgment of the Italian court. If that challenge failed, they would be in a position to bring Italy before the ECtHR rather than Austria, the courts of which merely executed the Italian court’s judgment.[27]

  • [1] The author would like to thank Ariadne Panagopoulou for invaluable research assistance.
  • [2] cf. Council Regulation 990/93/EEC, OJ [1993] L 102/14 implementing UN Security CouncilResolution 820.
  • [3] ch. 6.3.
  • [4] cf. Matthews v United Kingdom App. No. 24833/94, ECHR 1999-I, para. 32.
  • [5] cf. Case C-84/95 Bosphorus v Minister for Transport [1996] ECR I-3953.
  • [6] Note that the presumption was not accepted unanimously by all the judges. A forceful concurringopinion signed by six of the judges voiced serious doubt as to the wisdom behind it: by Judges Rozakis,Tulkens, Traja, Botoucharova, Zagrebelsky, and Garlicki.
  • [7] S. Douglas-Scott, ‘Bosphorus v Ireland’ (2006) 43 Common Market Law Review 243; it has also beenargued that the main motivation for the ECtHR was to limit the impact of its review on the effectivenessof the UN Security Council, cf. V.P. Tzevelekos, ‘When Elephants Fight it is the Grass that Suffers: “hegemonic struggle” in Europe and the Side-effects for International Law’ in K. Dzehtsiarou and others (eds),Human Rights Law in Europe (Routledge 2014).
  • [8] cf. Michaud v France, App. No. 12323/11, ECHR 2012, para. 104.
  • [9] cf. Bosphorus v Ireland, App. No. 45036/98, ECHR 2005-VI, paras 159-65.
  • [10] L. Besselink, ‘The European Union and the European Convention on Human Rights: From SovereignImmunity in Bosphorus to Full Scrutiny Under the Reform Treaty?’ in I. Boerefijn and J. Goldschmidt(eds), Changing Perceptions of Sovereignty and Human Rights, Essays in Honour of Cees Flinterman(Antwerp, Intersentia 2008) p. 303; the EU is in the process of signing up to the ECHR, cf. T. Lock, ‘Endof an Epic? The Draft Accession Agreement on the EU’s Accession to the ECHR’ (2012) 31 Yearbook ofEuropean Law 162.
  • [11] cf. Bosphorus v Ireland (n. 9), para. 156. 12 cf. Michaud v France (n. 8), para. 113. 13 [GC] App. No. 17862/91, ECHR 1996-V. 14 Cooperative des agriculteurs de la mayenne et la cooperative laitiere Maine-Anjou v France,App. No. 16931/04, ECHR 2006-XV; the facts are very much reminiscent of the earlier case of Procola vLuxembourg, App. No. 14570/89, DR 75.
  • [12] cf. Cooperative des agriculteurs de la mayenne (n. 14), para. 5.
  • [13] Confederation fran^aise du travail v European Communities App. No. 8030/77, 10 July 1978.
  • [14] Case 29/69 Stauder v Stadt Ulm [1969] ECR 419.
  • [15] i® Council Regulation 343/2003/EC establishing the criteria and mechanisms for determining themember state responsible for examining an asylum application lodged in one of the member states by athird-country national OJ [2003] L 50/1.
  • [16] cf. Povse v Austria, App. No. 3890/11, para. 79.
  • [17] cf. Cooperative des agriculteurs de la mayenne (n. 14).
  • [18] cf. Michaud v France (n. 8), para. 114.
  • [19] Ibid., para. 114. 23 cf. Povse v Austria (n. 19), para. 81.
  • [20] 24 cf. Opinion 1/09 Creation of a unified patent litigation system ECR [2011] I-1137; T. Lock, ‘Taking
  • [21] National Court More Seriously? Comment on Opinion 1/09’ (2011) 36 European Law Review 573.
  • [22] 25 Bosphorus v Minister for Transport (n. 5), paras 25-6.
  • [23] cf. S. Peers, ‘Bosphorus—European Court of Human Rights’ (2006) 2 European Constitutional LawReview 443, 454.
  • [24] cf. Michaud v France (n. 8), para. 115 and Povse v Austria (n. 19), para. 83.
  • [25] cf. Etahlissements Biret et CIE S.A. and Societe Biret International v 15 EU Member StatesApp. No. 13762/04, 9 December 2008, para. 2: the Court merely unconvincingly stated that its reasoningin Cooperative des agriculteurs de la mayenne (n. 14) was applicable mutatis mutandis.
  • [26] cf. Kokkelvisserij v Netherlands, App. No. 13645/05, 20 January 2009.
  • [27] cf. Povse v Austria (n. 19), para. 86.
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