‘Fishing on the Incoming Tide’
| Date | 01 May 1991 |
| Author | Dawn Oliver |
| DOI | http://doi.org/10.1111/j.1468-2230.1991.tb00896.x |
| Published date | 01 May 1991 |
CASES
‘Fishing on
the
Incoming
Tide’
Dawn
Oliver”
The Background: The Common Fisheries Policy
The decisions of the United Kingdom courts
in
the two cases of
R
v
Secretary
of
State for Transport,
Ex
parte Factortame
I
and
Factortame
(No
2)2
raise a number
of important issues about the compatibility
of
English law with Community law,
and remedies
in
English law. The factual background to the litigation is complicated
and needs to be set out briefly before the legal issues can be explored.
The common fisheries policy of the European Community
is
supposed to protect
the fishing stocks
in
EC waters by limiting catches. Given that the limitation of
fishing
will
inevitably damage the fishing industries of the various member states,
a quota system was introduced that was designed to ‘assure each member state relative
stability of fishing activities for each
of
the stocks considered.’3 In particular,
stability must ‘safeguard the particular needs of regions where local populations
are especially dependent on fisheries and related ind~stries.’~
The Spanish fishing fleet is the largest
in
the EEC, and its fishing vessels have
for many years fished
in
the waters that are now covered by the fisheries policy.
Thc British govcrnment became concerned from
1980
that Spanish vessels were
‘quota-hopping’ by registering
in
the Unitcd Kingdom and taking fish that should
have been available to the British fishing industry under the quota system. The UK
government first sought to counteract ‘quota-hopping’ and protect the British industry
by imposing conditions on the granting of licences
to
fish against
UK
quotas. These
conditions have for the most part been found to be unlawful by the European Court
of Justice (the ECJ).-’
The British government then tried again to prevent fishing against British quotas
by Spanish vessels by altering the law relating
to
registration, which is a precondition
to
obtaining a licence to fish. The Merchant Shipping Act
1988
and the Merchant
Shipping (Registration of Fishing Vessels) Regulations
1988
required vessels that
had previously been registered under the Merchant Shipping Act
1894
to re-register
under new conditions. These conditions were designed to prevent Spanish fishing
vessels registering by imposing nationality requirements.
Ninety-five vcssels wcre unable to register bccause they could not comply with
these conditions. Of these, fifty-three were originally registered in Spain and flew
the Spanish flag, and had registered under the British Merchant Shipping Act
1894
at various dates from
1980
onwards. The remaining forty-two had always been
British, but wcre purchased by the applicants at various dates, mainly since
1983.
*Readcr
in
Public Law, University Collegc London.
I
atii grateful
to
E. Sharpston,
A.
Lc Sucur and
J.
Hcrberg for coiiimcnts on
an
earlier
draft
of this note.
[I9901
2
AC
85,
HL.
R
v
Secrimiy
ofStrirefor
Trorisporr,
Es
pr/c
Fiic/or/oriie
Lul
(No
2)
119901
3
WLR
81
8
(ECJ),
and
856
(HL).
Articlc
4
of Rcgulation (EEC)
No
170/83.
Sixth
recital of the preainblc lo Regulation (EEC)
No
170/83.
See
R
v
Miriisrry ofAgricitl/rtre, Fislierics
ririd
Food,
Ex
pcirte
Agegiite
L/d
[
19901
3
WLR
227. ECJ;
and
R
v
Mirris/ry
04
Agricultitrc.,
Ex
pcirre
Jiidiww
L/d
[
19901
3
WLK 265, ECJ.
I
2
3
4
5
442
7he
Mocliwi
l~iw
Review
54:3
May
1991
0026-7061
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