R v Secretary of State for Transport, ex parte Factortame Ltd (C-213/89)
Jurisdiction | UK Non-devolved |
Date | 1989 |
Year | 1989 |
Court | House of Lords |
European Economic Community - Fishing rights - Common fisheries policy - British-registered fishing vessels managed and controlled from Spain - Act and Regulations of 1988 restricting registration as British - Owners' application for judicial review - Contention that Act and regulations contravening Community Law and depriving owners of enforceable Community rights - Interim injunction against Secretary of State restraining enforcement of Act and regulations - Whether jurisdiction in court to grant -
The applicants, companies incorporated under United Kingdom law and their directors and shareholders, most of whom were Spanish nationals, owned between them 95 deep sea fishing vessels registered as British under the
In their judgments, the Divisional Court of the Queen's Bench Division decided to request a preliminary ruling from the European Court of Justice in accordance with article 177 of the Treaty on the substantive questions of Community law arising to enable them finally to determine the application. On a motion by the applicants for interim relief, they ordered that, pending final judgment or further order, the operation of Part II of the Act of 1988 and the Regulations of 1988 be disapplied and that the Secretary of State be restrained from enforcing the same in respect of the applicants and their vessels so as to enable the existing registrations of the vessels to continue in being.
The Court of Appeal, on appeal by the Secretary of State, set aside the order made by the Divisional Court for interim relief.
On appeal by the applicants:—
Held, (1) that the dispute between the parties as to the existence of the Community rights claimed by the applicants was one of law rather than of fact; that the provisions of Part II of the Merchant Shipping Act 1988 were unambiguous in their terms and required no assistance from the court for their enforcement; and that the court had no power to make an order declaring an Act of Parliament not to be the law until some uncertain future date and conferring on the applicants rights directly contrary to the sovereign will of Parliament (post, pp. 1011E–F, 1013H–1014E, 1023H–1024C).
(2) That injunctions had not been available in Crown side proceedings prior to 1947 and the effect of sections 21(2) and 23(2)(b) of the Crown Proceedings Act 1947 had been to preserve that position; that Parliament had not, by section 31(2) of the Supreme Court Act 1981, intended to confer jurisdiction on the court to grant injunctions against the Crown in proceedings for judicial review and R.S.C., Ord. 53, r. 1(2) could not have extended the jurisdiction of the court in that respect; and that, accordingly, R.S.C., Ord. 53, r. 3(10)(b) did not enable an interim injunction to be granted in judicial review proceedings against the Crown (post, pp. 1016G, 1017E–F, 1018D, 1020F–G, 1023H–1024C).
(3) That the question whether Community law empowered or obliged an English court, irrespective of the position under national law, to provide effective interim protection of the putative rights under Community law claimed by the applicants should be referred to the European Court of Justice under article 177 of the E.E.C. Treaty for a preliminary ruling (post, pp. 1023B–C, H–1024C).
The following cases are referred to in the opinion of Lord Bridge of Harwich:
American Cyanamid Co. v. Ethicon Ltd. [
Bourgoin S.A. v. Ministry of Agriculture, Fisheries and Food [
C.I.L.F.I.T. (S.r.l.) v. Ministry of Health (Case 283/81) [
Foto-Frost (Firma) v. Hauptzollamt Luebeck-Ost (Case 314/85) [
Granaria B.V. v. Hoofdproduktschap voor Akkerbouwprodukten (Case 101/78) [
Hoffmann-La Roche (F.) & Co. A.G. v. Secretary of State for Trade and Industry [
Hutton v. Secretary of State for War (
Merricks v. Heathcoat-Amory [
O'Reilly v. Mackman [
Pesca Valentia Ltd. v. Minister for Fisheries and Forestry, Ireland and Attorney General [
Reg. v. Inland Revenue Commissioners, Ex parte National Federation of Self-Employed and Small Businesses Ltd. [
Reg. v. Inland Revenue Commissioners, Ex parte Rossminster Ltd. [
Reg. v. Licensing Authority Established under Medicines Act 1968, Ex parte Smith Kline & French Laboratories Ltd. (No. 2) [
Reg. v. Secretary of State for the Home Department, Ex parte Herbage [
Tamaki v. Baker [
The following additional cases were cited in argument:
Amministrazione delle Finanze v. S.r.l. Meridionale Industria Salumi (Joined Cases 66, 127 and 128/79) [
Amministrazione delle Finanze dello Stato v. Denkavit Italiana S.r.l. (Case 61/79) [
Amministrazione delle Finanze dello Stato v. S.p.A. San Giorgio (Case 199/82) [
Amministrazione delle Finanze dello Stato v. Simmenthal S.p.A. (Case 106/77) [
Barra v. The State (Belgium) and the City of Liege (Case 309/85) [
Bayerische H.N.L. Vermehrungsbetriebe G.m.b.H. & Co. K.G. v. Council and Commission of the European Communities (Joined Cases 83 and 94/76, 4, 15 and 40/77) [
Bearra Fisheries and Shipping Ltd. v. Minister for the Marine, Ireland [
Bulmer (H.P.) Ltd. v. J. Bollinger S.A. [
Comet B.V. v. Produktschap voor Siergewassen (Case 45/76) [
Commission of the European Communities v. Ireland (Case 61/77R) [
Costa v. E.N.E.L. (Case 6/64) [
Federation Europeenne de la Sante Animale v. E. C. Commission (Case 160/88R) [
Glucoseries Reunies v. Commission of the European...
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