JOINT CONCURRING OPINION OF JUDGES ROZAKIS, TULKENS, TRAJA, BOTOUCHAROVA, ZAGREBELSKY AND GARLICKI

(Translation)

While we are in agreement with the operative provisions of the judgment, namely that there has been no violation of Article 1 of Protocol No. 1 in the instant case, we do not agree with all the steps in the reasoning followed by the majority, nor all aspects of its analysis. Accordingly, we wish to clarify certain points we consider important.

1. In examining Article 1 of the Convention, the judgment rightly points out, on the basis of the Court's case-law, that it follows from the wording of that provision that the States Parties must answer for any infringement of the rights and freedoms protected by the Convention committed against persons placed under their “jurisdiction” (see paragraph 136). It concludes that the applicant company's complaint is compatible not only ratione loci (which was not contested) and ratione personae (which was not in issue) but also ratione materiae with the provisions of the Convention (see paragraph 137). Thus, the Court clearly acknowledges its jurisdiction to review the compatibility with the Convention of a domestic measure adopted on the basis of a Community regulation and, in so doing, departs from the decision of the European Commission of Human Rights of 9 February 1990 in M. & Co. v. the Federal Republic of Germany (no. 13258/87, Decisions and Reports 64, p. 138).

It has now been accepted and confirmed that the principle that Article 1 of the Convention makes “no distinction as to the type of rule or measure concerned” and does “not exclude any part of the member States' 'jurisdiction' from scrutiny under the Convention” (see United Communist Party of Turkey and Others v. Turkey , judgment of 30 January 1998, Reports of Judgments and Decisions 1998-I, pp. 17-18, § 29) also applies to Community law. It follows that the member States are responsible, under Article 1 of the Convention, for all acts and omissions of their organs, whether these arise from domestic law or from the need to fulfil international legal obligations.

2. In examining the alleged violation of Article 1 of Protocol No. 1, and having determined the applicable rule and the legal basis for the impugned interference, the Court's task was to examine whether there was a reasonable relationship of proportionality between the means employed and the aim sought to be achieved and, consequently, to determine if a fair balance had been struck between the demands of the general interest

and the interest of the applicant company. By its nature, such a review of proportionality can only be carried out in concreto .

In the instant case, the judgment adopts a general approach based on the concept of presumption: “If such [comparable] equivalent protection [of fundamental rights] 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” (see paragraph 156).

3. Even supposing that such “equivalent protection” exists – a finding which, moreover, as the judgment correctly observes, could not be final and would be susceptible to review in the light of any relevant change in fundamental rights protection (see paragraph 155) – we are not entirely convinced by the approach that was adopted in order to establish that such protection existed in the instant case.

The majority engages in a general abstract review of the Community system (see paragraphs 159-64 of the judgment) – a review to which all the Contracting Parties to the European Convention on Human Rights could in a way lay claim – and concludes that the protection of fundamental rights by Community law can be considered to be “equivalent” to that of the Convention system, thereby enabling the concept of presumption to be brought into play (see paragraph 165).

Needless to say, we do not wish to question that finding. We are fully convinced of the growing role of fundamental rights and their far-reaching integration into the Community system, and of the major changes in the case-law taking place in this field. However, it remains the case that the Union has not yet acceded to the European Convention on Human Rights and that full protection does not yet exist at European level.

Moreover, as the judgment rightly emphasises, “the effectiveness of such substantive guarantees of fundamental rights depends on the mechanisms of control in place to ensure observance of such rights” (see paragraph 160). From this procedural perspective, the judgment minimises or ignores certain factors which establish a genuine difference and make it unreasonable to conclude that “equivalent protection” exists in every case.

On the one hand, we have a reference for a preliminary ruling to the European Court of Justice, made not by the applicant company but by the Supreme Court of Ireland. Such a reference does not constitute an appeal but a request for interpretation (Article 234 of the EC Treaty). Although the interpretation of Community law given by the European Court of Justice is binding on the court which made the referral, the latter retains full discretion in deciding how to apply that ruling in concreto when resolving the dispute before it. Equally, in its general review of “equivalent protection”, the judgment should probably have explored further those situations which, admittedly, do not concern the instant case but in which the European Court of Justice allows national courts a certain discretion in implementing its judgment and which could become the subject matter of an application to the European Court of Human Rights. However, it is clear from paragraph 157 of the judgment and the reference to Cantoni v. France (judgment of 15 November 1996, Reports 1996-V) that the use of discretion in implementing a preliminary ruling by the European Court of Justice is not covered by the presumption of “equivalent protection”.

On the other hand, as the judgment itself acknowledges, individuals' access to the Community court is “limited” (see paragraph 162). Yet, as the Court reiterated in Mamatkulov and Askarov v. Turkey ([GC], nos. 46827/99 and 46951/99, ECHR 2005-I), the right of individual application “is one of the keystones in the machinery for the enforcement of the rights and freedoms set forth in the Convention” (see paragraph 122 of that judgment). Admittedly, judicial protection under Community law is based on a plurality of appeals, among which the reference to the Court of Justice for a preliminary ruling has an important role. However, it remains the case that, despite its value, a reference for a preliminary ruling entails an internal, a priori review. It is not of the same nature and does not replace the external, a posteriori supervision of the European Court of Human Rights, carried out following an individual application.

The right of individual application is one of the basic obligations assumed by the States on ratifying the Convention. It is therefore difficult to accept that they should have been able to reduce the effectiveness of this right for persons within their jurisdiction on the ground that they have transferred certain powers to the European Communities. For the Court to leave to the Community's judicial system the task of ensuring “equivalent protection”, without retaining a means of verifying on a case-by-case basis that that protection is indeed “equivalent”, would be tantamount to consenting tacitly to substitution, in the field of Community law, of Convention standards by a Community standard which might be inspired by Convention standards but whose equivalence with the latter would no longer be subject to authorised scrutiny.

4. Admittedly, the judgment states that such in concreto review would remain possible, since the presumption could be rebutted if, in the circumstances of a particular case, the Court considered that “the protection of Convention rights was manifestly deficient” (see paragraph 156).

In spite of its relatively undefined nature, the criterion “manifestly deficient” appears to establish a relatively low threshold, which is in marked contrast to the supervision generally carried out under the European Convention on Human Rights. Since the Convention establishes a minimum level of protection (Article 53), any equivalence between it and the Community's protection can only ever be in terms of the means, not of the result. Moreover, it seems all the more difficult to accept that Community law could be authorised, in the name of “equivalent protection”, to apply standards that are less stringent than those of the European Convention on Human Rights when we consider that the latter were formally drawn on in the Charter of Fundamental Rights of the European Union, itself an integral part of the Union's Treaty establishing a Constitution for Europe. Although these texts have not (yet) come into force, Article II-112(3) of the Treaty contains a rule whose moral weight would already appear to be binding on any future legislative or judicial developments in European Union law: “In so far as this Charter contains rights which correspond to rights guaranteed by the Convention for the Protection of Human Rights and Fundamental Freedoms, the meaning and scope of those rights shall be the same as those laid down by the said Convention.”

Thus, in order to avoid any danger of double standards, it is necessary to remain vigilant. If it were to materialise, such a danger would in turn create different obligations for the Contracting Parties to the European Convention on Human Rights, divided into those which had acceded to international conventions and those which had not. In another context, that of reservations, the Court has raised the possibility of inequality between Contracting States and reiterated that this would “run counter to the aim, as expressed in the Preamble to the Convention, to achieve greater unity in the maintenance and further realisation of human rights” ( Loizidou v. Turkey (preliminary objections), judgment of 23 March 1995, Series A no. 310, p. 28, § 77).