This month in our series of monthly bitesize extracts from Nutcases revision guides, we have an outline of R v Secretary of State for Transport Ex p. Factortame 1990.
The full effectiveness of EU law would be impaired if a rule of national law could prevent a court considering a matter governed by EU law from granting interim relief.
Following concern about the tenuous nature of the link between the owners of a number of fishing vessels and the United Kingdom, the Merchant Shipping Act 1988 was adopted, setting out stringent rules for the registration of fishing vessels as British. Many vessels owned by Spanish nationals previously registered as British no longer qualified and thus could not share in the UK fishing quota under the common fisheries policy. The unsuccessful applicants sought judicial review in the United Kingdom and suspension of the relevant parts of the 1988 Act, arguing that the Act contravened various provisions of the Treaty. An injunction against the Secretary of State was refused. The House of Lords referred questions for interpretation to the ECJ under art.267.
A national law should be set aside where it prevents the granting of interim relief in a dispute governed by EU law.  E.C.R. I-2433.
 The ruling of the ECJ followed the interim decision of the same court in an enforcement action brought by the Commission against the United Kingdom under art.258 TFEU : Commission v UK (Case C-246/89R), ordering the United Kingdom to suspend the operation of the offending sections of the 1988 Act. The House of Lords applied the decision and set aside the rule that an interim injunction cannot be granted against the Crown in R. v Secretary of State for Transport Ex p. Factortame (1991). The ECJ later ruled on the interpretation of the substantive provisions of the Treaty (in Case C-221/89R), holding that arts 49 TFEU etc. were infringed in circumstances where registration was made more difficult for nationals from other Member States than for nationals from the host state.
 The ECJ ruled on the status of a requirement for interlocutory (interim) proceedings in Melki and Abdeli (Joined Cases C-188 &189/10. It held that a national requirement for an interlocutory procedure to review the constitutionality of a national law before making a reference to the ECJ did not infringe EU law provided national courts were free to apply any necessary measures to protect rights under EU law and disapply conflicting national measures at the end of the interlocutory proceedings.
This is an extract from Nutcases EU Law by Penelope Kent, available from bookstores and Amazon.co.uk.
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