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Volume 175: debated on Tuesday 26 June 1990

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To ask the Attorney-General if he will make a statement on the juridical implications of the ruling of the European Court of Justice in Factortame.

The Context

Owners and operators of certain fishing vessels formerly registered as British have claimed that some of the registration conditions contained in part II of the Merchant Shipping Act 1988 are incompatible with Community law. They have applied to the High Court for judicial review.

The divisional court has referred the relevant questions of Community law to the European Court of Justice for a ruling. But the applicants also asked the divisional court for interim relief to protect their claimed rights in the meantime, by disapplying the relevant provisions of the Act pending final judgment.

The Secretary of State for Transport has opposed this application strongly.

The divisional court decided to grant the interim relief that was asked for. It ordered that the relevant part of the 1988 Act should be disapplied, so as to allow all previous registrations to remain in effect pending the European Court's ruling.

The Secretary of State appealed. The Court of Appeal reversed that order, and the House of Lords upheld the Court of Appeal. It held that, as a matter of national law, the divisional court had no jurisdiction to make any such order.

The House of Lords itself, however, referred to the European Court the separate question whether in the circumstances of the case Community law either obliged the national court to grant interim relief by suspending the application of a national measure, or alternatively gave it power to grant such interim protection of the rights claimed; and, if so, upon the application of what criteria.

The immediate effect

The United Kingdom argued before the European Court that Community law neither obliged nor enabled a national court to grant interim relief suspending the application of a national measure where the national court was debarred by national law from doing so. The court has, however, ruled that, where a national court would have granted such interim relief in order to protect directly effective Community law rights had it not been for a rule of its national law prohibiting it from so doing, it must as a matter of Community law set aside that rule.

In consequence the application for judicial review now returns to the English courts for decision as to whether interim relief should now be granted and, if so, on what terms. The Secretary of State will make submissions as to the general criteria to be applied and will argue strongly that interim relief ought not to be granted in the present case; but since the matter is sub judice it would be wrong to say more. Meanwhile, the practical position as regards fishing rights remains unchanged pending resolution of this issue.

The juridical significance

When a country joins the Community it is obliged to reconcile its constitution, whether written or unwritten, with Community membership. It has to provide for the application of Community law within its territory, which means providing for Community law to have supremacy over any conflicting provisions of its own national law.

Community law requires that directly effective Community law rights must be fully and uniformly applied in all the member states. If the provisions of any national law might prevent, even temporarily, Community rules from having such force and effect as Community law requires, national courts shall be able to set them aside. This requirement derives from article 5 of the treaty of Rome. It is Parliament that has given effect to requirements such as this, by means of the provisions of section 2(1) of the European Communities Act 1972:

"All such rights, powers, liabilities, obligations and restrictions from time to time created or arising by or under the Treaties, and all such remedies and procedures from time to time provided for by or under the Treaties, as in accordance with the Treaties are without further enactment to be given legal effect or used in the United Kingdom shall be recognised and available in law, and be enforced, allowed and followed accordingly; …"

In Factortame the Court of Justice held that the full effectiveness of Community law would be impaired if a

jurisdictional rule in the law of a member state prevented its national courts from granting interim relief so as to preserve directly effective rights claimed under Community law, where the national courts would otherwise consider it appropriate to do so. The House of Lords is accordingly now under a Community law obligation to give effect to the ruling, because that ruling is automatically brought into English law by the operation of section 2(1) of the 1972 Act. Moreover, by virtue of section 2(4) of the Act, Parliament has provided that an Act of Parliament such as the 1988 Act is to be construed and have effect subject to the obligations and powers which arise under section S2(1):

"[S2(4)] … and any enactment passed or to be passed, other than one contained in this Part of this Act, shall be construed and have effect subject to the foregoing provisions of this section …"

Finally, it is important to note that the ruling of the Court of Justice applies equally to the national courts of every member state.