Derecho De La Unión Europea

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All England Law Reports/1989/Volume 2 /Factortame Ltd and others v Secretary of State for Transport [1989] 2 All ER 692 [1989] 2 All ER 692

Factortame Ltd and others v Secretary of State for Transport
HOUSE OF LORDS LORD BRIDGE OR HARWICH, LORD BRANDON OF OAKBROOK, LORD OLIVER OF AYLMERTON, LORD GOFF OF CHIEVELEY AND LORD JAUNCEY OF TULLICHETTLE 17, 18, 19, 20, 24, 25, 26, 27 APRIL,18 MAY 1989 Injunction - Interlocutory - Jurisdiction - Injunction restraining enforcement of legislation pending reference to European Court - Applicants seeking injunction restraining Secretary of State from enforcing legislation against applicants pending reference to European Court - Legislation not requiring assistance from court for its enforcement - Legislation unambiguous - Whether courthaving jurisdiction to disapply legislation pending reference to European Court - Merchant Shipping Act 1988, Pt II, s 14(1) - Merchant Shipping (Registration of Fishing Vessels) Regulations 1988. Crown - Relief against the Crown - Interlocutory relief - Jurisdiction - Injunction against officer of the Crown Interim injunction - Judicial review proceedings - Application for interim injunctionprotecting Community rights claimed by applicants pending preliminary ruling from European Court - Interim injunction restraining Secretary of State from enforcing legislation against applicants pending ruling - Whether court having jurisdiction to grant injunction against Crown - Crown Proceedings Act 1947, ss 21(2), 23(2)(b) - Supreme Court Act 1981, s 31(2) - RSC Ord 53, r 1(2). Following thefixing of quotas for national fishing fleets under the European Economic Community's common fishing policy to prevent overfishing, the United Kingdom Parliament enacted the Merchant Shipping Act 1988, Pt II of which was intended to protect British fishing interests by restricting the number of vessels whose catch could be considered part of the United Kingdom's quota. Under the 1988 Act the Secretaryof State was empowered to make regulations for a new register of British fishing vessels and in the exercise of those powers he promulgated the Merchant Shipping (Registration of Fishing Vessels) Regulations 1988, under which fishing vessels registered as British under the existing register of British fishing vessels were required to reregister under the 1988 Act as from 1 March 1988. Vessels couldonly qualify for entry on the new register if their owners or, in the case of companies, their shareholders were British citizens or were domiciled in Britain. The applicants were English companies which owned or managed 95 deep sea fishing vessels registered as British under the existing register of British fishing vessels but most of their directors and shareholders were Spanish nationals andconsequently the applicants were unable to comply with the conditions for registration set out in s 14(1)a of the 1988 Act and could not qualify for entry on the new register. The applicants sought, by means of an application for judicial review, to challenge the validity of the legislation, contending that it contravened the provisions of the EEC Treaty by depriving the applicants of theirCommunity law rights. The Secretary of State contended that Community law did not 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 the 1988 legislation, being designed to achieve Community purposes, namely the common fisheries policy, conformed with Community law. The Divisional Court decided to request apreliminary ruling from the Court of Justice of the European Communities under art 177 of the Treaty on the substantive questions of Community law to enable it to determine the application, and pending the European Court's ruling it granted interim relief to the applicants in the form of orders that pending final

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a

Section 14(1) is set out at p 696 d, post [1989] 2 All ER 692 at 693...