Factortame

The Factortame saga has been keeping us entertained for just over ten years now, since the adoption of the Merchant Shipping Act of 1988 aimed to shoot marauding Spanish quota-hoppers out of the fishing waters of the United Kingdom. It has involved innumerable judgments of the English courts (Divisional Court, Court of Appeal, House of Lords) and of the Court of Justice, including an important interlocutory order by its President. The total collection roams over a range of issues, both procedural and substantive, relating to overt and covert nationality discrimination, the nature of services, the common fisheries policy, the international law of the sea, the procedural powers of the English courts, the supremacy of Community law over statute and the liability of Member States in damages for "sufficiently serious" breaches of Community law. The complexity and bulk of this series rivals that of the Spycatcher cases.

The final (is it really the last?) judgment in the series was delivered by the House of Lords on 28 October 1999. It held (affirming both the Divisional Court and the Court of Appeal) that in imposing the nationality and domicile requirements on fishing vessels under the British quota, found in earlier cases to have been breaches of Community law, the UK had manifestly and gravely disregarded the limits on the exercise of its powers. Although a reasonable case could have been made for imposing local residence (as opposed to nationality) requirements for the crews of fishing vessels, the Act had instead placed the residence obligation on the shareholders of the shipowners and so that provision also was manifestly unjustified. Altogether, the court unani-mously held that the UK’s breach of Community law in 1988 was "sufficiently serious" within the meaning of Brasserie du Pêcheur to justify the award against the UK government of damages to the Spanish fishermen who had been illegally deprived of their fishing rights.