R v Transport Secretary, ex parte Factortame Ltd (No 1) [1990] 2 AC 85

Key points

  • Under English law, the courts have no power to grant interim relief against the application of an Act of Parliament
  • Thus preliminary reference was made to the ECJ on whether EC law grants national courts such a power, this was confirmed by the ECJ


  • Within the EU, the Common Fisheries Policy allocates a quota of fish that ships from each country is allowed to catch
  • Some Spanish vessels were registering in the United Kingdom in order to take advantage of the UK’s quota, despite the fact that these ships did not have genuine economic links to the UK economy
  • In an attempt to plug this loophole in the legislation, the Government passed the Merchant Shipping Act 1988 (MSA 1988), under which, UK-registered fishing vessels would need to be at least 75% owned by UK residents
  • Spanish sailors argued that the provisions in the MSA 1988 were contrary to European Community law, because they were effectively discriminatory on the grounds of nationality and sought interim relief

Held (House of Lords)

  • The House held that “the courts had no jurisdiction to grant interim relief in terms which would involve either overturning an English statute in advance of any decision by the European Court of Justice that the statute infringed Community law or granting an injunction against the Crown.”
  •  An application was made to the European Court of Justice for a preliminary ruling on the matter

Preliminary ruling by the ECJ2

  • National courts have a duty to grant interim relief to protect Community Rights in the face of potentially conflicting domestic law
  • This meant that domestics courts would be required to disapply any conflicting national law which would prevent interim relief being granted.
  • This preliminary ruling was applied in Factortame (No. 2), which followed the ECJ ruling
  • See full case note for Case C-213/89 Factortame (No. 1) [1990] ECR 1-2433