• In the case of Case c 213 89 Factortame no 1 1990 ECR 1 2433, it was held that national courts must grant interim relief of national legislation that are challenged for compatibility with EU law.

Facts of the Case

  • F and other owners of 95 fishing vessels (F and O) sought an interim injunction against the Secretary of State (S) to prevent him from enforcing the Merchant Shipping Act 1998 part 2 against them.
  • The applicants consisted of companies with Spanish interests who had previously enjoyed fishing rights entitling them to fish against UK quotas under the Common Fisheries Policy.
  • F and O, under the 1988 Act making registration of such rights compulsory were no longer eligible because of their Spanish connections.
  • F and O applied for judicial review to challenge the validity of certain provisions of the 1988 Act on the ground that it contravened European law.
  • The house of Lords held that the Queen’s Bench division had exceeded its powers when granting interim relief against S as there was no jurisdiction in existence to enable the making of such an order against the Crown.
  • The House of Lords then referred a question to the European Court of Justice about the relative status of English and European law.
  • The European Court ruled that in cases concerning community law, where the only barrier preventing a national court from granting interim relief was the existence of a national rule then the national court must set aside that said rule.
  • The applicants returned to the House of Lords.

Issues in Case c 213 89 Factortame no 1 1990 ECR 1 2433

  • What is the relevant remedy when no order is permitted against the Crown.

Held by House of Lords

  • Interim relief would be granted pending a final decision form the European Court as to the validity of the UK registration laws.


  • Held that national courts are obliged to grant interim relief of national legislation that are challenged for compatibility with Community law.
  • The first criterion concerned the availability of an adequate remedy in damages to either party. If this test was not satisfied, the court proceeded to the second stage, which was to consider the balance of convenience in all the circumstances of the case. In the instant case, the balance of convenience should be interpreted broadly in order to take into account the interests of the general public, as served by S. To allow an interim injunction restraining the enforcement powers of a public authority, the court must be satisfied that the challenge to the law was prima facie of such strength as to merit such an action. Although there was evidence that permitting the applicants to fish would result in serious losses for the owners of other British fishing vessels, this did not outweigh the obvious and immediate damage that would continue to be caused to F and O if no interim relief were granted.
  • “If the applicants are successful in the end of the day but are afforded no interim relief they will, standing the law as laid down in Bourgoin S.A. v. Ministry of Agriculture, Fisheries and Food [1986] Q.B. 716, suffer very severe and irrecoverable damage. If they are ultimately unsuccessful but are afforded interim relief the loss suffered by the British fishing industry as a whole and by individual members thereof during the period of interim relief will be relatively minor. Beyond this I cannot usefully add anything to what has already been said on this matter by my noble and learned friend Lord Goff of Chieveley. It follows that, the applicants having crossed the threshold, the balance of convenience favours the granting to them of interim relief.” Pg 683