Judgments - Regina v. Secretary of State for Transport Ex Parte Factortame Limited and Others

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    What then remains is the application of the test to the facts of the case. In para. 58 at p. 500 of the judgment the court records that the national courts have the sole jurisdiction to find the facts and to decide how to characterise the breaches in question. But the court then states that "it will be helpful to indicate a number of circumstances which the national courts might take into account." The first of these appears to be a plain indication that at least the nationality condition was manifestly contrary to Community law. But it is still for the national court alone to determine whether there was a sufficiently serious breach. It may be noted that the Advocate General (Tesauro) expressed himself robustly on the point in para 120 at p. 489 of his opinion:

    "In the final analysis, I do not consider that there can be any doubts as to the manifest and serious nature of the breach in question and hence as to the right to compensation of individuals who suffered damage as a result of it."

    Secondly, the court states that the conditions on residence and domicile were prima facie incompatible with the Treaty; that the United Kingdom sought to justify them but that the court rejected that justification in Factortame II [1992] Q.B. 680. That leaves open for argument whether at the time the breach was manifest and grave. Thereafter in para. 63 the court details three matters which the national court might take into account in relation to the question whether the breach of Article 52 was sufficiently serious. It is not altogether clear whether these are intended to relate to the matter of nationality as well as to the matters of residence and domicile but in the overall appraisal of the case that point may not be critical. The three matters are not intended to be exclusive and they appear to point in divergent directions. The first, a reference to the legal disputes relating to particular features of the common fisheries policy may indicate a degree of uncertainty in the law which would point in favour of the appellant's case. On the other hand the attitude of the Commission "which made its position known to the United Kingdom in good time" is a factor pointing in favour of the respondents. The third matter, "the assessments as to the state of certainty of Community law made by the national courts in the interim proceedings brought by individuals affected by the Merchant Shipping Act", may be seen as pointing in the appellant's favour. It may be recalled that Bingham L.J. observed of the problem of Community law (Reg. v. Secretary of State for Transport, Ex parte Factortame Ltd. [1989] 2 C.M.L.R. 353,399):

    "Both judges in the Divisional Court thought this a difficult and important question on which a decision was necessary to enable them to give judgment. I agree, and no criticism has been addressed to that part of their judgments. Like Neill L.J. I shall not express even a tentative view on the likely outcome of the reference to the European Court of Justice which the Divisional Court rightly ordered. Both sides accept that the answer is not 'acte clair'."

    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 recognised 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 recognised that the measure would cause loss, but that was not the purpose of it.

    The reference to which the European Court responded was made by the Divisional Court on 18 November 1992 and it was to that court that the case was returned to determine the matter in the light of the guidance given. In a detailed and careful judgment that court decided that the breaches by the appellant of Community law were sufficiently serious to give rise to a liability in damages. That decision has been considered and endorsed by the court of Appeal. I would not propose to open up the whole range of considerations again with a view to forming a fresh assessment of them. I have not been persuaded that there exists any ground for disturbing the conclusion which has already been reached and I consider that the view which has been taken by the Divisional Court and by the Court of Appeal regarding the condition of residence as well as the view taken on the matters of nationality and domicile were sound and correct. On one point only would I venture to express disagreement, and that is only with regard to the matter of the relative weight to be given to the view of the Commission. In the Divisional Court [1997] Eu.L.R.. 475, 519, it was stated in relation to the Commission that "a member state which disregards its view does so at its peril." That may be a slight overstatement. The court also stated that a failure to follow the views of the Commission "is likely to lead to the breach being regarded as inexcusable and so manifest." That more moderate formulation was adopted by the Court of Appeal and seems to me to be preferable. But this detail does not touch on the substance of the decision nor the overall assessment. I would dismiss the appeal.


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