R v SECRETARY OF STATE FOR TRANSPORT, EX PARTE FACTORTAME LTD [1990] 2 AC 85 & [1991] (No.2) 1 AC 603  

This page is update by Dr Peter Jepson.

Lord Bridge, ŽBy virtue of section 2(4) of the Act of 1972 Part 11 of the Act of 1988 is to be construed and take effect subject to directly enforceable Community rights and those rights are, by section 2(1) of the Act of 1972, to be Žrecognised and available in law, and÷enforced, allowed and followed accordingly÷Ū This has precisely the same effect as if a section were incorporated in Part II of the Act of 1988 which in terms enacted that the provisions with respect to registration of British fishing vessels were to be without prejudice to the directly enforceable Community rights of nationals of any member state of the EEC. Thus 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.Ū

 The case was then referred to the ECJ for a preliminary ruling.

Lord Bridge, ŽMy Lords, when this appeal first came before the House in 1989 your lordships held that, as a matter of English law, 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 Court of Justice of the European Communities that the statute infringed Community law or granting an injunction against the Crown. It then became necessary to seek a preliminary ruling from the Court of Justice as to whether Community law itself invested us with such jurisdiction.

In the speech I delivered on that occasion...I explained the reasons which led to those conclusions. It will be remembered that, on that occasion, the House never directed its attention to the question how, if there were jurisdiction to grant the relief sought, discretion ought to be exercised in deciding whether or not relief should be granted. 

In June 1990 we received the judgment of the Court of Justice...affirming that we had jurisdiction, in the circumstances postulated, to grant interim relief for the protection of directly enforceable rights under Community law and that no limitation on our jurisdiction imposed by any rule of national law could stand as the sole obstacle to preclude the grant of such relief. In the light of this judgment we were able to conclude the hearing of the appeal in July and unanimously decided that relief should be granted in terms of the orders which the House then made, indicating that we would give our reasons for the decision later... 

Lord Goff...has given a very full account of all the relevant circumstances arising since our decision last year in the light of which our final disposal of the appeal fell to be made. I gratefully adopt this account. I also agree with his exposition of the principles applicable in relation to the grant of the interim injunctive relief where the dispute involves a conflict between private and public interests and where damages are not a remedy available to either party, leading in the circumstances of this case, to the conclusion that it was appropriate to grant interim relief in terms of the orders made by the House. But I add some observations of my own in view of the importance of the subject matter. 

Some public comments on the decision of the Court of Justice, affirming the jurisdicātion of the courts of member states to override national legislation if necessary to enable interim relief to be granted in protection of rights under Community law, have suggested that this was a novel and dangerous invasion by a Community institution of the sovereignty of the United Kingdom Parliament. But such comments are based upon a misconception. If the supremacy within the European Community of Community law over the national law of member states was not always inherent in the EEC Treaty it was certainly well established in the jurisprudence of the Court of Justice long before the United Kingdom joined the Community. Thus, whatever limitation of its sovereignty Parliament accepted when it enacted the European Communities Act 1972 was entirely voluntary.  

Under the terms of the 1972 Act it has always been clear that it was the duty of a United Kingdom court, when delivering final judgment, to override any rule of national law found to be in conflict with any directly enforceable rule of Community law. Similarly, when decisions of the Court of Justice have exposed areas of United Kingdom statute law which failed to implement Council directives, Parliament has always loyally accepted the obligation to make appropriate and prompt amendments. Thus there is nothing in any way novel in according supremacy to rules of Community law in those areas to which they apply and to insist that, in the protection of rights under Community law, national courts must not be inhibited by rules of national law from granting interim relief in appropriate cases is no more than a logical recognition of that supremacy. 

Although affirming our jurisdiction, the judgment of the Court of Justice does not fetter our discretion to determine whether an appropriate case for the grant of an interim relief has been made out.Ū