R v Secretary of State for Transport, ex parte Factortame Ltd (C-213/89)

JurisdictionUK Non-devolved
Date1989
Year1989
CourtHouse of Lords
[HOUSE OF LORDS] FACTORTAME LTD. and Others Appellants and SECRETARY OF STATE FOR TRANSPORT Respondent [On appeal from REGINA v. SECRETARY OF STATE FOR TRANSPORT, Ex parte FACTORTAME LTD. AND OTHERS] 1989 April 17, 18, 19, 20, 24, 25, 26, 27; May 18 Lord Bridge of Harwich, Lord Brandon of Oakbrook, Lord Oliver of Aylmerton, Lord Goff of Chieveley and Lord Jauncey of Tullichettle

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 - European Communities Act 1972 (c. 68), s. 2(1)(4) - Merchant Shipping Act 1988 (c. 12), s. 14F1 - E.E.C. Treaty (Cmnd. 5179-II)

arts. 7, 52, 58, 221
- Judicial Review - Crown - Interim injunctive relief - Application for interim injunction restraining Secretary of State from enforcing provisions of statute and regulations made thereunder - Applicants' contention that Act and regulations in conflict with laws of European Economic Community and depriving applicants of enforceable Community rights - Whether power in court to declare Act of Parliament not to be the law - Whether jurisdiction to grant interim injunction against Crown in proceedings for judicial review - Whether Community law overriding national law so as to require interim protection of putative Community rights claimed by applicants - Crown Proceedings Act 1947 (10 & 11 Geo. 6, c. 44), ss. 21(2), 23(2)(b)F2 - Supreme Court Act 1981 (c. 54), s. 31(2)F3 - R.S.C., Ord. 53, rr. 1(2), 3(10)(b)F4

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 Merchant Shipping Act 1894. The statutory regime governing the registration of British fishing vessels was radically altered by Part II of the Merchant Shipping Act 1988 and the Merchant Shipping (Registration of Fishing Vessels) Regulations 1988, both of which came into force on 1 December 1988. Vessels previously registered as British under the Act of 1894 required to be re-registered under the Act of 1988, subject to a transitional period permitting their previous registration to continue in force until 31 March 1989. The 95 vessels in question failed to satisfy one or more of the conditions for registration under section 14(1) of the Act of 1988, and thus failed to qualify for registration as British fishing vessels, by reason of being managed and controlled from Spain or by Spanish nationals or by reason of the proportion of the beneficial ownership of the shares in the applicant companies in Spanish hands. The applicants by application for judicial review sought to challenge the legality of the relevant provisions of the Act and Regulations of 1988 on the ground that they contravened the provisions of the E.E.C. Treaty and other rules of law given effect thereunder by the European Communities Act 1972 by depriving the applicants of enforceable Community rights. The Secretary of State contended that Community law did not in any way restrict a member state's right to decide who was entitled to be a national of that state or what vessels were entitled to fly its flag and that, in any event, the legislation of 1988 was in conformity with Community law and designed to achieve the Community purposes enshrined in the common fisheries policy.

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).

F. Hoffmann-La Roche & Co. A.G. v. Secretary of State for Trade and Industry [1975] A.C. 295, H.L.(E.) distinguished.

(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).

Reg. v. Licensing Authority Established under Medicines Act 1968, Ex parte Smith Kline & French Laboratories Ltd. (No. 2) [1989] 2 W.L.R. 378, C.A. and Reg. v. Secretary of State for the Home Department, Ex parte Herbage [1987] Q.B. 872 overruled.

Dicta in Reg. v. Inland Revenue Commissioners, Ex parte Rossminster Ltd. [1980] A.C. 952, H.L.(E.) not applied.

(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).

C.I.L.F.I.T. (S.r.l.) v. Ministry of Health (Case 283/81) [1982] E.C.R. 3415, E.C.J. applied.

Decision of the Court of Appeal affirmed.

The following cases are referred to in the opinion of Lord Bridge of Harwich:

American Cyanamid Co. v. Ethicon Ltd. [1975] A.C. 396; [1975] 2 W.L.R. 316; [1975] 1 All E.R. 504, H.L.(E.)

Bourgoin S.A. v. Ministry of Agriculture, Fisheries and Food [1986] Q.B. 716; [1985] 3 W.L.R. 1027; [1985] 3 All E.R. 585, C.A.

C.I.L.F.I.T. (S.r.l.) v. Ministry of Health (Case 283/81) [1982] E.C.R. 3415, E.C.J.

Foto-Frost (Firma) v. Hauptzollamt Luebeck-Ost (Case 314/85) [1988] 3 C.M.L.R. 57, E.C.J.

Granaria B.V. v. Hoofdproduktschap voor Akkerbouwprodukten (Case 101/78) [1979] E.C.R. 623, E.C.J.

Hoffmann-La Roche (F.) & Co. A.G. v. Secretary of State for Trade and Industry [1975] A.C. 295; [1974] 3 W.L.R. 104; [1974] 2 All E.R. 1128, H.L.(E.)

Hutton v. Secretary of State for War (1926) 43 T.L.R. 106

Merricks v. Heathcoat-Amory [1955] Ch. 567; [1955] 3 W.L.R. 56; [1955] 2 All E.R. 453

O'Reilly v. Mackman [1983] 2 A.C. 237; [1982] 3 W.L.R. 1096; [1982] 3 All E.R. 1124, H.L.(E.)

Pesca Valentia Ltd. v. Minister for Fisheries and Forestry, Ireland and Attorney General [1985] I.R. 193

Reg. v. Inland Revenue Commissioners, Ex parte National Federation of Self-Employed and Small Businesses Ltd. [1982] A.C. 617; [1981] 2 W.L.R. 722; [1981] 2 All E.R. 93, H.L.(E.)

Reg. v. Inland Revenue Commissioners, Ex parte Rossminster Ltd. [1980] A.C. 952; [1980] 2 W.L.R. 1; [1980] 1 All E.R. 80, H.L.(E)

Reg. v. Licensing Authority Established under Medicines Act 1968, Ex parte Smith Kline & French Laboratories Ltd. (No. 2) [1989] 2 W.L.R. 378; [1989] 2 All E.R. 113, C.A.

Reg. v. Secretary of State for the Home Department, Ex parte Herbage [1987] Q.B. 872; [1986] 3 W.L.R. 504; [1986] 3 All E.R. 209

Tamaki v. Baker [1901] 1 A.C. 561, P.C.

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) [1980] E.C.R. 1237, E.C.J.

Amministrazione delle Finanze dello Stato v. Denkavit Italiana S.r.l. (Case 61/79) [1980] E.C.R. 1205, E.C.J.

Amministrazione delle Finanze dello Stato v. S.p.A. San Giorgio (Case 199/82) [1983] E.C.R. 3595, E.C.J.

Amministrazione delle Finanze dello Stato v. Simmenthal S.p.A. (Case 106/77) [1978] E.C.R. 629, E.C.J.

Barra v. The State (Belgium) and the City of Liege (Case 309/85) [1988] 2 C.M.L.R. 409, E.C.J.

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) [1978] E.C.R. 1209, E.C.J.

Bearra Fisheries and Shipping Ltd. v. Minister for the Marine, Ireland [1989] 1 C.M.L.R. 840

Bulmer (H.P.) Ltd. v. J. Bollinger S.A. [1974] Ch. 401; [1974] 3 W.L.R. 202; [1974] 2 All E.R. 1226, C.A.

Comet B.V. v. Produktschap voor Siergewassen (Case 45/76) [1976] E.C.R. 2043, E.C.J.

Commission of the European Communities v. Ireland (Case 61/77R) [1977] E.C.R. 1411, E.C.J.

Costa v. E.N.E.L. (Case 6/64) [1964] E.C.R. 585, E.C.J.

Federation Europeenne de la Sante Animale v. E. C. Commission (Case 160/88R) [1988] 3 C.M.L.R. 534, E.C.J.

Glucoseries Reunies v. Commission of the European...

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