Why renogotiating with the EU isn't that easy!
The 'Factortame' case concerning Spanish Fishing rights under the EU Fisheries Policy clearly shows the supremacy of Community Law, the impossibility of the Westminster Parliament being able to legislate to circumvent it - and consequently the complete hypocrisy of the Howard conservative oppositions stance on renegotiating the Fisheries Policy or anything else.
The following extracts are taken from 'THE FACTORTAME SAGA: THE FINAL CHAPTER?' available in pdf format from
this link.
Quote
THE FACTS AND THE HISTORY OF THE LITIGATION
Briefly, in the 1980s the United Kingdom Government formed the view that Spanish
fishing vessels with no genuine connection to the United Kingdom had registered in
Britain in order to obtain access to British fishing waters. The Government therefore
introduced new licensing conditions pursuant to the Sea Fish (Conservation) Act, 1967
restricting registration by reference to nationality, residence and social security
contributions. The majority of these conditions were found by the Court of Justice to
be unlawful in R. v. Ministry of Agriculture, Fisheries and Food, ex parte Agegate Ltd.5
and R. v. Ministry of Agriculture, Fisheries and Food, ex parte Jaderow Ltd.6
Considering that the situation was worsening, the Government subsequently enacted
the Merchant Shipping Act, 1988. This provided that a vessel could only be registered
as British if all the legal owners and at least 75 per cent of the beneficial owners were
‘‘qualified persons or companies’’ 7 and its charterer, manager or operator was a
qualified person. The vessel must also be managed and its operation directed and
controlled from within the United Kingdom.
On 19 June 1990, in Factortame I, the Court of Justice ruled that the English rule
of law preventing suspension of the Act pending determination of its validity must be
disapplied and, on 25 July 1991, in Factortame II it held that the requirements of the Merchant Shipping Act as to nationality, residence and domicile for legal and beneficial owners, charterers and managers and operators of fishing vessels were contrary to Community law and in particular to article 43 (ex 52) of the EC Treaty on the freedom of establishment. However the requirement that the vessel be managed and its operations directed and controlled from within a Member State was not contrary to
Community law.
Meanwhile, the Commission had also brought proceedings against the United Kingdom under article 226 (ex 169) EC. On 10 October 1989 the President of the Court of Justice made an order for interim suspension of the Act pending a final ruling
and, on 4 October 1991, the Court of Justice ruled the Act invalid in the article 226
EC proceedings. Under article 228 (ex 171) EC the United Kingdom was obliged to
take measures to comply with this judgment.
In Factortame III the Court of Justice repeated its reasoning in Francovich v. Italy
that although the Treaty did not expressly provide for Member State liability in
damages for breach of Community law, such liability was vital to ensure the full
e摯瑬敳獩ectiveness of Community law. The obligation to remedy breaches of Community law
was also part of the duty of Member States under article 10 (ex 5) EC to fulfill their Treaty obligations. However, where a Member State had a wide discretion over its actions, it could only be liable for a breach of Community law where that breach was sufficiently serious, national courts could take into account a number of factors. These factors included the clarity and precision of the rule breached, the measure of discretion left to the national authorities by the rule, whether the infringement and damage were intentional or involuntary, any contribution to the State’s act or omission made by the position taken by a Community institution and the adoption or retention of measures or practices contrary to Community law.10
When Factortame III returned to the Divisional Court 11 in the United Kingdom, that
court ruled that, on the facts, the enactment of the Merchant Shipping Act, 1988
constituted a sufficiently serious breach of EC law so as potentially to give rise to
liability in damages to the applicants.12 The court noted a number of relevant factors:
the intended effect of the domicile and residence conditions was discrimination on the ground of nationality; the Government was aware that the conditions would cause loss to the applicant; the Commission was hostile; the use of primary legislation meant that under domestic law interim relief was unavailable; the superior rules of law of proportionality and legitimate expectation had been breached; and the Government had failed to comply immediately with the Order of the President of the Court of Justice in proceedings under article 226 (ex 169) EC that the Act should be suspended pending determination of its validity.
The Court of Appeal upheld the judgment of the Divisional Court 13 and the
Government made a further appeal to the House of Lords. It argued that its breach
was excusable, since the law was not clear until the judgment in Factortame II and
there was substantial objective justification in the form of protection of the national fish quota. In addition, other Member States had adopted the same approach as the United Kingdom, the national courts regarded the issue as complex and the
Government had sought and relied on independent legal advice that its action was in
accordance with Community law. The United Kingdom was not obliged to follow the
advice of the Commission and it had not intended to breach Community law or injure
the respondent fishermen. Finally, even if the breach caused by the nationality
condition was sufficiently serious, that caused by the residence condition was not.
Unquote
Footnote references and the eventual outcome of Factotame III can be found from the link.
In a comment to the final ruling which went entirely against the British Government, the following point was made regarding lessons for the future:
The judgment also gives guidance for future applicants and the government. First, the fact that favourable legal advice is received will not, of itself, render a breach of Community law excusable. Second, any delay in giving effect to a ruling of the Court of Justice is likely to be considered to be a sufficiently serious breach of Community law in itself. Third, where a serious injury to the potential applicant is a foreseeable result of the government’s action, this will also give weight to the argument that there has been a sufficiently serious breach.
Naturally none of this will come as any surprise to Howard's Conservative Party, who while proclaiming 'Trust Us' are, as usual, engaged in an elaborate chirade designed to dupe the electorate and bind us ever more closely and cravenly to the non-democratic EU that will soon become
their principle source of unconditional funding.
(See my posting to Ironies of last Friday, linked from here).
State funding of political parties is as unacceptable as Company Directors operating without either shareholders or a Companies Act!