What was the relationship between the Factortame case and the Treaty of Rome 1957?

by dxb625 (student)

The Factortame case involved the legislative discretion of a Member State, namely the UK, to address an issue which was deemed detrimental to their citizens. Such resulted in a lengthy litigation due to objections to the implementation of the Merchant Shipping Act 1988.

Questions:

What was the relationship between the Factortame case and the Treaty of Rome 1957?
In consideration of such relationship and the impact thereof on Member States, what was the significance of the Factortame case? The Factortame litigation concerns companies with Spanish interests who had previously enjoyed fishing rights entitling them to fish against UK quotas under the Common Fisheries Policy

Rights enjoyed under the Merchant Shipping Act 1894 became invalid on introduction of the Merchant Shipping Act 1988 which required owners of vessels fishing in UK waters to reside in the UK and that 75% of ownership of shipping vessels were required to be held by British citizens or companies. Registration of vessels under the Merchant Shipping Act 1894 would become invalid as of 01 April 1989 and re-registration would be required.

Many previously registered vessels were not able to comply with the requirements; such decrease in trade would have a detrimental effect on the fishermen economically and socially.

In 1976 the EEC required Members to ensure equal access to and use of fishing grounds under their jurisdiction for fishing vessels belonging to a Member State registered in Community territory.

In 1977 the UK, declared a 200 mile Exclusive Economic Zone around the EEC.

An agreement between Spain and the ECC instituted a quota allowed for catches of each party in the fishing grounds of the other party and a licensing system for such authorized vessels.

The Spanish were accused of quota hopping, thus the British Fishing Boats Act 1983; the Spanish could not land their catch in the UK.

Such Act became ineffective when Spain joined the EEC. Spanish fishing vessels were able to fish in UK waters, if prevented they could institute a claim against the UK.

Due to controls implemented being insufficient in terms of fishing quotas and concerns with the CFP, in that it represented a derogation from many principles on which the EEC was based and that the UK felt that they were losing sovereignty to Brussels, brought about the Merchant Shipping Act 1988.

The owners of the fishing vessels objected to the Act, stating that it was contrary to the Treaty under Articles 7, 52, 58 and 221..

Factortame I

A preliminary ruling was sought as well as an order preventing the Secretary of State from enforcing re-registrations and allowing registration under the 1894 Act to remain active.

In June 1990, the ECJ held that, as per Article 5 of the Treaty, a national court is to ensure the legal protection which persons derive from the direct effect of provisions of Community law.

Thus, interim relief is to be granted pending a ruling from the ECJ as to whether a conflict exists. The ECJ added its objection both to the domicile and to the residence conditions.

Thus, in terms of Section 2(4) of the ECA 1972, Part II of the Merchant Shipping Act 1988 is to be construed and take effect subject to directly enforceable Community rights and those rights are, by section 2(1) of the ECA 1972, to be recognised and available in law, and enforced, allowed and followed accordingly. In October 1990 the House of Lords granted such interim relief as per the ECJ’s ruling and in order to avoid any further loss to the Appellant; and in terms of Section 37 of the Supreme Courts Act of 1981. Thus the Court set aside a national procedural rule. Prior to such the House of Lords was of the opinion that they lacked jurisdiction in that they did not have the power to set aside a national law as such would be in contravention of Parliament.

The issue of the supremacy of directly effective Community law in national courts was settled as per above in that the interim injunction was granted based on the direct effect which the application of the Act 1988 would have, the final judgment effectively proved the need for such interim relief and as such, a precedent was set, it made constitutional history as it was accepted that every statute is intended to comply with European law. Thus the constitutional factors addressed in the Factortame litigation was that of the Courts being able to firstly provide protection based on an alleged breach of Community law; secondly granting of an interim injunction against the Crown and the conditions which would allow such to be granted. Such is the significance of the Factortame litigation, more specifically in terms of Parliamentary Sovereignty.

It is evident that Parliaments of Member States are no longer fully in power to make and enforce law. The supremacy of EC law is inherent within the nature and spirit of the Treaty. Moreover, Community law is supreme where applicable, that is parliamentary supremacy of a Member State is not always affected by Community law. However, there are limitations of such supremacy. It is evident in the Factortame cases that Member States have limited their sovereign rights. Moreover, Lord Bridges’ speech reaffirms such limitation ³«whatever limitation of its sovereignty Parliament accepted when it enacted the European Communities Act 1972 was entirely voluntary.´ In the matter of Internationale Handelsgesellschaft mbH v Einfuhr [1970] it was established that the validity of a Community measure or its effect within a Member State cannot be affected by allegations that it runs counter to either fundamental rights as formulated by the constitution of that State or the principles of a national constitutional structure.

Arguments presented by Sir William Wade indicated that a revolution had taken place.However, in Maccarthys Limited v Smith [1979] it is presumed that Parliament passes an Act ensuring that all requirements of the Treaty are met, if such requirements are deliberately repudiated by Parliament, Lord Denning felt that it would be the courts duty to follow the statute passed by Parliament; however, in that such was not deliberate the court was obligated to give priority to the Treaty.

Such is indicative of what took place in the Factortame case as in order to satisfy Community Law with regards to fishing quotas, the Merchant Shipping Act 1988 breached other requirements of the Treaty.Thus, Community law is supreme over the national law of the member states, including the fundamental norms of their national constitutions, where applicable. Such doctrine of supremacy developed from the following cases Van Gend en Loos [1963]; Costa v ENEL[1964]; Internationale Handelsgesellschaft [1970] ECR 1125; Simmenthal [1978] ECR 629; Factortame [1990] and Brassiere du Pechier and Factortame (No 4) [1996].

Moreover, Clause 18 of the European Union Bill 2010/11 provides a statutory confirmation in terms of maintaining the balance between the supremacy of Community law (now referred to as EU law) in matters of substantive law and the supremacy of the UK Parliament in establishing the legal framework within which EU law operates. Thus in terms of the supremacy of Parliaments of Member States in terms of Community law, one can argue that such is compromised, however in a positive light; one can say that supremacy is ‘shared´.

Factortame II

In July 1991 the ECJ ruled it is contrary to the provisions ...

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Factortame II

In July 1991 the ECJ ruled it is contrary to the provisions of Community law and, in particular, to Article 52 of the Treaty, for a Member State to stipulate such as in Section 14of the Merchant Shipping Act 1988. Articles 5, 7, and 221 of the Treaty were also breached.Thus, actions by the Commission under Article 169 and Article 186 resulted in the disapplication of the offending sections of the Act.One can therefore deduce that the Merchant Shipping Act 1988 s14 constituted discrimination, as it was in breach of Article 7 along with Articles 7, 52, 58 and 221 and such is not justifiable by Community rules on fishing quotas or by the UK’s obligations under international law. The Applicants subsequently claimed for damages from the government.

Factortame III

This case dealt with the conditions under which a Member State may incur liability for damage caused to individuals by breaches of Community law attributable to the State. Such is the following deals with the principle of direct effect of Treaty provisions and the degree to which individuals can rely on such terms to challenge national law. In terms of the relationship between the substantive issue concerning directly effective rights and the enforcement action brought by the Commission under Article 169, reference is made to the matter of NV Algemene Transporten Expeditie Onderneming van Gend en Loos v Nederlandse Administratis der Belastingen [1963].

Herein, the importer argued that he could resist the application of national law (and a higher rate of duty) as it conflicted with his rights under the Treaty (to pay a lower rate) .

In the matter of Defreene v Sabena (No.2) the Court’s ruled that compensation must be paid by any employer who discriminates against his employees in terms of pay contrary to the equal pay principle of Article 119. In Marshall and Van Colson each of the cases established the Plaintiff’s right to compensation where national law did not comply with Community rules.The matter of

Brasserie du Pecheur SA v Bundesrepublik Deutschland and The Queen v Secretary of State for Transport, ex parte: Factortame Ltd and others[1996], dealt with the issue of state liability for damages caused to individuals by legislation adopted in contravention of directly effective rights. In March 1996, such concluded that damages are entitled to be claimed where Community law is breached and such breach is serious and a direct causal link between the breach and the damage sustained is established.

The decision on costs was referred to national courts. Due to the absence of Community rules in the area, and beyond guidance from the Court, remedies are the responsibility of national law.From such case the ECJ reaffirmed the right to reparation. Furthermore, direct effect, indirect effect and State liability have thus increasingly strengthened the position of private parties. In addition, it is established that through the operation of supremacy and Article 177, an infringement of Community law by a Member state may be challenged by private parties at national level.

Factortame IV

In October 1999, the House of Lords dismissed the appeal and ruled in favour of the Respondent.In March 2000 settlement was made to the Claimants to the about of £55 million.

Factortame V

This case was in consideration of claims by parties in relation to the Limitations Act 1955and claims for aggravated damages due to discrimination. The Court did not award damages and held that further claims by parties were admissible if lodged by July 1996, if not such claim would be rejected. The relationship of the Factortame litigation and the Treaty of Rome is apparent herein in that the litigation was based on the objection that under Common law the Act was contrary to Community law. Being a Member State it is a requirement that Common law is not to be contrary to Community law; community law overrules common law.To close off we have addressed the significance of the litigation and the relationship with the Treaty of Rome 1957. From such we note that extent to which the fundamental constitutional principles of the UK are altered by being a Member States. The sovereign power to legislate as it pleases and how the courts interpret and apply such legislation are circumscribed by EU law.

[1991] 1 A.C. 603; [1990] 3 W.L.R. 818; [1991] 1 All E.R. 70; [1991] 1 Lloyd's Rep. 10; [1990] 3 C.M.L.R. 375; (1991) 3 Admin.L.R. 333; (1990) 140 N.L.J. 1457; (1990) 134 S.J. 1189

Merchant Shipping Act 1988

Gary Slapper & David Kelly, The English Law System (11th Edn, Routledge, Ldn 2010) 652

Merchant Shipping Act 1984 (link to Merchant Shipping Act 1984 s1) - in order for registration in the British register, a vessel hadto be owned by a British citizen or company incorporated in the UK and that its principal place of business was situated in the UK. To overcome this, Spanish owners formed companies to re-register the vessels in the UK

Merchant Shipping Act 1988

Merchant Shipping Act 1988 Part II s14(1-4) & s(7)

Merchant Shipping Act 1894 (link to Merchant Shipping Act 1984 s1)

Sharon Hanson, Legal Method and Reasoning (2nd Edn, Cavendish Publishing Ltd, Great Britain 2003) 395

European Economic Community

Common Fisheries Policy

British Fishing Boats Act 1983

ibid

European Economic Community

Common Fisheries Policy

Sharon Hanson, Legal Method and Reasoning (2nd Edn, Cavendish Publishing Ltd, Great Britain 2003) 439, 440 - UK quotas for UK fishermen, with principles such as freedom of establishment, free access to raw materials, no discrimination on grounds of nationality; Spaniards appeared to be ³quota-hopping

Merchant Shipping Act 1988 - the main reason for the Act was to stop the practice of ‘quota-hopping’ which was adversely affecting the fishing industry

Merchant Shipping Act 1988 Part II s14(1-4) & s(7)

The claim was that the Merchant Shipping Act 1988 was contrary to directly effective rights under Community law

Treaty of Rome 1957

ibid Art 7 - the right not to be discriminated against on the grounds of nationality

ibid Art 52 - Freedom of establishment of a business

ibid Art 58 - Companies freedom of establishment

ibid 7 Art 221 – national’s right to participation in the capital of companies or firms within the meaning of Art. 58

It was further argued that these provisions of Community law were provisions which had direct effect and that the applicants' rights would be infringed by the application to them of the Act of 1988 and the Regulations of 1988. It was submitted that these rights were fundamental rights which could not be swept away or submerged by the Common Fisheries Policy and that all provisions of the Common Fisheries Policy had to be read subject to these fundamental provisions

Under Article 177 the Divisional Court sought a preliminary ruling from the ECJ with regards to the interpretation of Articles 7,52, 59 and 221 of the Treaty in order to establish if the Merchant Shipping Act 1988 was in conflict with same.

At national level, in Article 177(1)(b) cases, a court may grant interim relief against the application of a national measure based on a disputed Community act (Zuckerfabrik Suderdithmarschen );

Commission v UK ( J. Tillotson ³ Extracts from European Community Law: Text, Cases and Materials , 2nd edn. 1996, Cavendish Publishing´ in S. Hanson Legal Method & Reasoning 2nd edn., Cavendish Publishing Limited, 2003, 464)

The interim order of the President (Case 246/89 R) was made upon an application to him by the European Commission. The Commission brought an action under article 169 of the Treaty for a declaration that, by imposing the nationality requirements enshrined in section 13 and 14 of the Act of 1988, the UK had failed to fulfill its obligations under articles 7, 52 and 221 of the Treaty.

The Commission further applied under article 186 of the Treaty and article 83 of the Rules of Procedure for an order requiring the UK to suspend the application of the nationality requirements enshrined in section 14(l)(a) and (c) of the Act, read in conjunction with paragraphs (2) and (7) of the section, as regards the nationals of other member states and in respect of fishing vessels which until 31 March 1989 were pursuing a fishing activity under the British flag and under a British fishing licence. Under article 83(2) of the Rules of Procedure, interim measures such as those requested may not be ordered unless there are circumstances giving rise to urgency and factual and legal grounds establishing a prima facie case for the measures applied for.

Under article 83(2) of the Rules of Procedure, interim measures such as those requested may not be ordered unless there are circumstances giving rise to urgency and factual and legal grounds establishing a prima facie case for the measures applied for.

Merchant Shipping Act 1894

March 1989, the Divisional Court provided interim protection to the appellants in terms of their Community rights by disapplying the operation of Part II of the Merchant Shipping Act 1988 and the Merchant Shipping (Registration of Fishing Vessels) Regulations1988. Such was appealed. The Appeal Court allowed the appeal and set aside the order for interim relief. The Appeal Court was of the opinion that the Divisional Court had no jurisdiction to grant an interim injunction whilst awaiting the outcome from the ECJ. May 1989, the House of Lords upheld the Appeal Court’s decision with regards to interim relief as the Divisional Court did not have jurisdiction to grant such injunction, moreover, such would be in contravention of Parliament. In order to grant such relief, the ECJ would be required to be in favour of the Appellants with regards to the conflict in question. Thus, the House of Lords referred the question to the ECJ. In October 1989, the European Court made an order for interim measures in the Article 169 proceedings pending judgment in those proceedings.

Part VII of the Merchant Shipping (Registration of Shipping Vessels) Regulations 1988 related to the requirements for transfer to the register as per the Merchant Shipping Act 1988. The existing registration of the Applicants under Part IV of the Merchant Shipping Act 1894 would cease 01 April 1989 if the requirements of Part II and Part VII of the Merchant Shipping Act 1988 were not met.

Treaty of Rome 1957 Art 5 - English Courts have the power to grant an interim junction if Community law overrode English law.

European Communities Act 1972 s2(4) - The provision that may be made under subsection (2) above includes, subject to Schedule 2 to this Act, any such provision (of any such extent) as might be made by Act of Parliament, 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; but, except as may be provided by any Act passed after this Act, Schedule 2 shall have effect in connection with the powers conferred by this and the following sections of this Act to make Orders in Council [F7 or orders, rules, regulations or schemes]

General Implementation of Treaties ³All 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 UK shall be recognized and available in law, and be enforced, allowed and followed accordingly ; and the expression "enforceable Community right " and similar expressions shall be read as referring to one to which this subsection applies.”

Merchant Shipping Act 1988 Part II s14(1-4) & s(7)

European Communities Act 1972 s2(1) - 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 UK shall be recognized and available in law, and be enforced, allowed and followed accordingly; and the expression [F1³enforceable EU right´] and similar expressions shall be read as referring to one to which this subsection applies.

General provision for repeal and amendment

[1990] UKHL 13 - If the applicants are successful in the end of the day but are afforded no interim relief they will, standing the law as laid down in Bourgoin S.A. v. Ministry of Agriculture and Fisheries and Food

[1986] Q.B. 716, suffer very severe and irrecoverable damage; Sharon Hanson, Legal Method, Skills and Reasoning (2nd Edn, Cavendish Publishing Ltd, Great Britain2003) 451

Interim relief was granted also in terms of Supreme Courts Act 1981 s37(1) - The High Court may by order (whether interlocutory or final) grant an injunction or appoint a receiver in all cases in which it appears to the court to be just and convenient to do so.

J . Tillotson ³Extracts from European Community Law: Text, Cases and Materials, 2nd edn. 1996, Cavendish Publishing´ in S.Hanson Legal Method & Reasoning 2nd edn., Cavendish Publishing Limited, 2003, 465

Ibid, 467 : Lord Bridge had stated earlier in these proceedings: it is common ground, that in so far as the applicants succeed before the ECJ in obtaining a ruling in support of the Community rights which they claim, those rights will prevail over the restrictions imposed on registration of British fishing vessels by Part II of the Act of 1988 and the Divisional Court will, in the final determination of the application for judicial review be obliged to make appropriate declarations to give effect to those rights.

Indications from the ECJ's first ruling that Factortame's arguments had 'considerable force' were taken into account by the House of Lords. Lord Goff emphasized that the courts would not, in other cases, readily or easily grant an injunction against the Crown which effectively prevents the Crown from applying national law.

[1990] 2 LLR 365, [1990] 2 Lloyd's Rep 365, [1990] UKHL 7, [1990] 2 Lloyds Rep 365

Refer Kirklees Metropolitan Borough Council V Wickes Building Supplies Ltd. [1993] AC 227 damages could be claimed against the State (Francovich) if such injunction was not granted

Merchant Shipping Act 1988 Part II s14(1-4) & s(7)

Gary Slapper & David Kelly, The English Law System (12th Edn, Routledge, Ldn 2011) 681

Refer to NV Algemene Transporten Expeditie Onderneming van Gend en Loos v Nederlandse Administratis der

Belastingen [1963]; Flaminio Costa v ENEL [1964]; Thoburn v Sunderland City Council [2003] QB 151 (the obligations created by the ECA1972 were supreme over national law; certain statutes could not be impliedly repealed as per Laws LJ)

H.W.R. Wade ‘Sovereignty - Revolution or Evolution?´ (1996) 112 Law Quarterly Review 568-575 - While Britain remains in the Community we are in a regime in which Parliament has bound its successors successfully, and which is nothing if not revolutionary. Wade further states that judges, in recognition of a change, allowed the binding of future Parliaments, such is a technical revolution, which is also decided on for the sake of political necessity.

R v Secretary of State for Transport, ex p. Factortame Ltd [1991] 1 AC 603

nternationale Handelsgesellschaft mbH v Einfuhr (Uniformity and Efficacy of Community Law) [1970] EUECJ C-11/70 (17December 1970)

J. Tillotson ³Extracts from European Community Law: Text, Cases and Materials, 2nd edn. 1996, Cavendish Publishing´ in S.Hanson Legal Method & Reasoning 2nd edn., Cavendish Publishing Limited, 2003, 459-460

Edited by A Slaughter, A Stone Sweet & JHH Weiler, The European Court and National Courts - Doctrine of Jurisprudence :legal change in its social context (Hart Publishing Ltd, Oxford UK1998) 142

³The Banana Case´ thus dealt with the compatibility of EU law with German law, specifically German Constitutional Law, the German Constitutional Court abandoned its reservations about the standard of European fundamental rights protection subsequent to its decision in the Internationale Handelsgesellschaft.In Wünsche Handelsgesellschaft the German court decided that it would no longer examine the compatibility of Community legislation with German fundamental rights as long as (thus "solange") the European Court continues to protect fundamental rights adequately. In other words, the German Constitutional Court is willing to trust the European Court to strike down Community legislation that is contrary to fundamental rights.(Gary Slapper & David Kelly, The English Law System (12th Edn, Routledge, Ldn 2011) 680)

H.W.R. Wade ‘Sovereignty-Revolution or Evolution?´ (1996) 112 Law Quarterly Review 568-575

It can be deduced that Parliament was aware of the fact that Community law would override Common law as per the European Communities Act 1972; the passing of such Act is acceptance of such supremacy of Community law.

Maccarthys Limited v Smith [1979] 3 ALL ER 325 (CA)

Colin Turpin, British Government and the Constitution: text ad materials (6th Edn, CUP, 2007) 323

Merchant Shipping Act 1988

Treaty of Rome 1957 Articles 7, 52, 58 and 221

ECR 1 such established the European Union as an independent legal order from the Member States

ECR 585 introduced the doctrine of supremacy

ECR 629 supremacy of EU law affects prior and future legislation

ECR I-2433 demonstrated the obligation to ignore conflicting national law

2 WLR 506 governments held liable for financial loss due to a breach of EU law

Gary Slapper & David Kelly, The English Law System (12th Edn, Routledge, Ldn 2011) 680

Passing the European Communities Act 1972 is indicative of the UK’s voluntary acceptance thereof

[1991] ECR I-3905

Treaty of Rome 1957 Art 52

Merchant Shipping Act 1988 Part II s14(1-4) & s(7)

The power to dispense with the nationality requirement on the grounds of a period of residence did not justify the requirements of nationality, residence or domicile; the requirements were not justified by the fact that the Common Fisheries Policy provided for national quotas to be fixed. The requirement that the vessel be managed and its operations directed and controlled from within a member state was not contrary to Community law.

Member states need comply with Community law in determining the conditions which must be fulfilled in order for a vessel to be registered in their registers and granted the right to fly their flag.

J. Tillotson ³Extracts from European Community Law: Text, Cases and Materials, 2nd edn. 1996, Cavendish Publishing´ in S.Hanson Legal Method & Reasoning 2nd edn., Cavendish Publishing Limited, 2003, 454

By imposing the nationality requirements enshrined in section 13 and 14 of the Act of 1988, the UK had failed to fulfill its obligations under Articles 7, 52 and 221 of the Treaty.

Application for an order requiring the UK to suspend the application of the nationality requirements enshrined in section 14(l)(a)and (c) of the Act, read in conjunction with paragraphs (2) and (7) of the section, as regards the nationals of other member states and in respect of fishing vessels which until 31 March 1989 were pursuing a fishing activity under the British flag and under a British fishing licence.

Merchant Shipping Act 1988 Part II s14(1-4) & s(7)

ibid

Treaty of Rome 1957 Article 7 ± the right not to be discriminated against on the grounds of nationality

Francovich principle of State liability

[1996] ECR I-1029

NV Algemene Transporten Expeditie Onderneming van Gend en Loos v Nederlandse Administratis der

Belastingen [1963] ECR1; [1963] CMLR 105

J. Tillotson ³Extracts from European Community Law: Text, Cases and Materials, 2nd edn. 1996, Cavendish Publishing´ in S.Hanson Legal Method & Reasoning 2nd edn., Cavendish Publishing Limited, 2003, 462

ibid

Brasserie du Pecheur SA v Bundesrepublik Deutschland and The Queen v Secretary of State for Transport, ex parte:Factortame Ltd and others[1996] EUECJ C-46/93, [1996] 2 WLR 506, [1996] IRLR 267, [1996] QB 404, [1996] ECR I-1029, CaseC-46/93, [1996] CEC 295, [1996] All ER (EC) 301, [1996] 1 CMLR 889

John Wheeler, Essentials of the English Law System (2nd Edn, Pearson Education Ltd, Ldn 2006) 122-123

Advocate General’s Opinion therein: ‘Refuge can no longer be taken behind the supremacy or unchallenged ability of legislation the bringing of an action for damages against the States for the legislatures’ failure to act is perfectly permissible where the State’s liability is based on a breach of Community law, as Francovich shows, whereas refuge can no longer be taken behind the supremacy or unchallenged ability of legislation the bringing of an action for damages against the State for the legislatures’ failure to act is perfectly permissible where the State’s liability is based on a breach of Community law, as Francovich shows, whereas this is hardly conceivable in domestic law.

The right to reparation requiring the introduction of legislation by the EU was rejected by the ECJ and that the availability of damages should be decided, in each case, on the basis of the national law of the State in question. Such is applicable where a Member State breaches Community law, regardless of which institution of the State was responsible for the breach

J. Tillotson ³Extracts from European Community Law: Text, Cases and Materials, 2nd edn. 1996, Cavendish Publishing´ in S.Hanson Legal Method & Reasoning 2nd edn., Cavendish Publishing Limited, 2003, 466

There are of course further considerations. For example, account may properly be taken of the fact that the appellant acted in good faith. He took legal advice from a recognized expert in the field. He sought advice from the Commission. He had the serious purpose of seeking to counter what he saw as an abuse of the common fisheries policy. He recognized that the measure would cause loss, but that was not the purpose of it.

[1997] EWHC 755; [1998] 3 CMLR 192; [2000] 1 AC 524

On 28th October 1999, the House of Lords dismissed the Government's appeal -- see[1999] 3 WLR 1062. I heard the claims of the first 15 claimants, in what became known as the "fast-track", in a trial which started on 6th March 2000.

J. Tillotson, Texts Cases and Materials on European Law (4th edn, 2003 Cavendish Publishing Ltd, Great Britain) 598Perhaps not surprisingly, after some 14 years of Factortame cases (three at Community level, seven at national level), damages have been settled at a reported figure in excess of £50 million. The question of the English law basis of liability to compensate (together with other matters such as causality and mitigation of loss) still remains without a clear answer, unless the Divisional Court’s breach of statutory findings can be taken as such. What is more certain is that the position regarding the statement by the Court of Justice in Case 158/80 Rewe v HZ A Kiel (see above) that in general, the Treaty did not require the national courts to create new remedies for the breach of Community law has led, via promptings by the Court and the Commission, to the application in this country of µold¶ remedies to new circumstances: interim relief in the first stage of the Factortame litigation, damages for breach of the competition rules in Courage, and, it would appear, a statutory duty tort law cause of action in the later Factortame State liability litigation.

[2000] EWHC 179

Damages for distress are not normally awarded under English law. They can only be awarded in relation to those torts where the claimant's self-esteem is an important and integral part of the damage for which compensation is awarded. They can only be awarded in relation to those torts where the claimant's self-esteem is an important and integral part of the damage for which compensation is awarded.

Limitation Act 1955

http://www.civitas.org.uk/eufacts/FSTREAT/TR1.htm - The Treaty of Rome was the founding treaty of the European Economic Community (EEC), which later became the EU. Also known as the Treaty of the European Community (TEC), all the subsequent European treaties have built upon or amended the Treaty of Rome and its provisions still form the majority of EU treaty law. The treaty focused overwhelmingly on economic co-operation, but it also set out a wider political vision for 'an ever closer union' to' eliminate the barriers which divide Europe'

Merchant Shipping Act 1988

Community law overrules common law where applicable

R. v Secretary of State for Transport Ex parte Factortame [1999] All ER (D) 1173

the dependency of a Community law upon national implementing measures does not affect its supremacy over the national laws of Ireland or any other Member State. If National law could overrule Community Law the concept of direct effect would be rendered futile.

Gary Slapper & David Kelly, The English Law System (12th Edn, Routledge, Ldn 2011) 681