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Erik Drewniak

Abstract

This Comment argues that the European Court of Justice ("ECJ") should choose not to follow its holding that Regulation 990/93 applied to the aircraft that Bosphorus leased from Yugoslavian National Airline ("JAT"), because it is not clear that the language of Resolution 820 and Regulation 990/93 provides for the impounding of aircrafts whose Yugoslavian owner leased them to non-Yugoslavian businesses in which no Yugoslavian entity has a majority or controlling interest. This Comment further argues that in so holding, the ECJ violated Bosphorus' fundamental right to property because the impounding of the aircraft was disproportionate to the concrete purpose of preventing Yugoslavia and Yugoslavian nationals from having recourse to aircrafts that they could use to violate the embargo. Part I discusses the structure of the European Community and sources of fundamental rights in Community law, specifically property rights, including important ECJ and European Court of Human Rights property rights cases. Part I also presents the background of the Bosphorus case, including the historical background of the war in Bosnia, the U.N. Security Council Resolutions instituting the embargo on Yugoslavia, and the EC Council regulations implementing those resolutions. Part II discusses the procedural history and facts of the Bosphorus case, including an analysis of the decisions of the Irish High Court (the “High Court”), the Advocate General of the ECJ, and the ECJ. Part III advocates a more narrow and concrete interpretation of Regulation 990/93, affording greater weight to Bosphorus' property rights. This Comment concludes that the ECJ should adopt a more narrow and concrete interpretation of Regulation 990/93 and should refrain from following its holding that Regulation 990/93 did not apply to Bosphorus's aircraft, thereby further strengthening and clarifying the European Community's commitment to the protection of property rights.

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