‘Fishing on the Incoming Tide’

Abstract

The decisions of the United Kingdom courts in the two cases of R v Secretasy of State for Transport, Ex parte Factortame ' and Factortame (No 2) 2 raise a number of important isksues about the compatibility of English law with Community law, and remedies in English law. The factual background to the litigation is complicated and needs to be set out briefly before the legal issues can be explored. The common fisheries policy of the European Community is suppoksed to protect the Hlshing stocks in EC waters by limiting catches. Given that the limitation of fishing will inevitably damage the HIshing industries of the various member states, a quota system was introducecl that was designed to 'assure each member state relative stability of fi<hing activities for each of the stocks considered.'3 In particular, stability must 'safeguard the particular needs of regions where local populations are especially dependent on fisheries and related industries.'4 The Spanish fishing fleet is the largest in the EEC, and its fishing vessels have for many years Elshed in the waters that are now covered by the fisheries policy. The British government became concerned from 1980 that Spanish vessels were 'quota-hopping' by registering in the United Kingdom and taking fish that should have been available to the British fishing industry under the quota system. The UK governme.nt first sought to counteract 'quota-hopping' and protect the British industry by imposing conditions on the granting of licences to fish against UK quotas. These conditions have for the most part been found to be unlawful by the European Court of Justice (the ECJ).s The Britiksh government then tried again to prevent fishing against British quotas by Spanish vessels by altering the law relating to registration, which is a precondition to obtaining a licence to fish. The Merchant Shipping Act 1988 and the Merchant Shipping (Registration of Fishing Vessels) Regulations 1988 required vessels that had previously been registered under the Merchant Shipping Act 1894 to re-register under new conditions. These conditions were designed to prevent Spanish fishing vessels registering by imposing nationality requirements. Nincty-five vessel.s were unable to register because they could not comply with these conditions. Of these, fifty-three were originally registered in Spain and flew the Spanish flag, and had registered under the British Merchant Shipping Act 1894 at various dates from 1980 onwards. The remaining forty-two had always been British, but were purchased by the applicants at various dates mainly since 1983.