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''R (Factortame Ltd) v Secretary of State for Transport''〔By convention the monarch appears in the title of the case as the nominal bringer of the action. In reality the action by brought by Factortame Limited against the Secretary of State.〕 was a case taken against the United Kingdom government by a company of Spanish fishermen who claimed that the United Kingdom had breached European Union law by requiring ships to have a majority of British owners, if they wished to be registered in the UK. The case produced a number of significant judgments on British constitutional law and was the first time courts held that they had the power to restrain the application of an Act of Parliament pending trial and ultimately to disapply that Act when it was found to be contrary to EU law. The litigation was lengthy, and is typically divided into five main stages: *''Factortame I'' where the High Court and then House of Lords both made a reference to the European Court of Justice on the legality of the Merchant Shipping Act 1988's requirement for UK fishing vessels to be 75% UK owned. After the ECJ confirmed the incompatibility of the MSA 1988 with EU law, saw the House of Lords confirm the supremacy of EU law over national law in the areas where the EU has competence because of the UK acceding the EU treaties.〔nb the House of Lord judgment is in fact referred to as ''R (Factortame Ltd) v Secretary of State for Transport (No 2)'' () 1 AC 603〕 *''Factortame II'', where the ECJ held that the provisions of the MSA 1988 were required to be disapplied by the UK courts if they contravened EU law. *''Factortame III'', where the ECJ held that the member state could be liable for damages in an action by the European Commission for breach of EU law. *''Factortame IV'', where the House of Lords ruled that damages could be awarded against a member state like the UK for losses suffered by private parties under the ''Francovich v Italy''〔(1990) C-6/90〕 principle, that wrongs by violation of a public body generate a private law claim from anybody who has suffered a directly connected loss *''Factortame V'', holding that claims after 1996 were statute barred, since claims against a member state were like other claims in tort under the Limitation Act 1980. ==Facts== The EU's Common Fisheries Policy, which began in 1970, aimed at creating a common market for fisheries products by providing for free access to the waters of all Member States and introducing structural funds to ensure modernisation of the sector.〔http://www.europarl.europa.eu/parliament/expert/displayFtu.do?language=en&id=74&ftuId=FTU_4.4.1.html〕 In 1976 it was agreed that, as from 1 January the following year, Member States would extend their exclusive economic zone, which included the limit of their fishing zones, to a distance from their coastlines. In 1980 the EU concluded a fisheries agreement with Spain, which was then not yet a member of the EU,〔(Thomas Cooper Law: "FACTORTAME BACKGROUND" )〕 and which gave the latter (which had the largest fishing fleet in Europe) limited rights to fish in the waters of the Member States. In 1983 concerns over the effect that equality of access might have on fishing stocks led to the introduction of certain controls, notably the concept of "total allowable catches" which set maximum quotas of fish which could be caught by each Member State, and the British Fishing Boats Act 1983 (BFBA).〔 Spain was not then, in 1983, a member of the Community. In 1985 with Spanish accession, everything changed and the BFBA no longer applied to the Spanish fishermen.〔 From 1980, as seen earlier, Galician fishermen began to enter the UK fishing market by taking advantage of easy fishing vessel registration requirements contained in the Merchant Shipping Act 1894. Although the 1894 Act prohibited ownership of vessels by non-UK nationals, UK-domiciled companies were allowed registration as the owners. Amongst the early beneficiaries of the 1894 Act was Factortame Limited, a company whose directors were Joseph J L Couceiro, John A Couceiro and Ken L Couceiro, all Spanish nationals with Portuguese ancestry resident and domiciled in Spain. The company, together with 96 others〔(Thomas Cooper Law: "ABOUT FACTORTAME" )〕 whose directors and shareholders were mostly Spanish nationals, re-registered 53 vessels which had formerly flown the Spanish flag as British fishing vessels under the 1894 Act. They also acquired 42 existing British vessels with a view to using them in the fishing zone. Most of these vessels landed their catches in Spain, but as the fish were caught in UK waters, they counted against the UK fishing quota – a practice known as "quota hopping". The British government (HMG) sought to put an end to this practice and enacted a series of measures which proved largely ineffective. In two cases the High Court of Justice of England and Wales asked preliminary questions to ECJ; based on which both cases were lost by HMG - see Agegate (C-3/87, ) and Jaderow.(C-216/87, )〔 In 1988 the Merchant Shipping Act 1988 and the Merchant Shipping (Registration of Fishing Vessels) Regulations were introduced as a result, to replace the system of registration contained in the 1894 Act with a new system under which a vessel could only be registered if it had "a genuine and substantial connection" with the UK. For this to be the case, three conditions had to be fulfilled: (i) the vessel must be British-owned; (ii) the vessel had to be managed and its operations had to be directed and controlled from the UK; and (iii) any charterer, manager or operator had to be a qualified person or company. A "qualified person or company" was a person who was a British citizen resident and domiciled in the UK or a company which was incorporated in the UK and had its principal place of business there having at least 75% of its shares owned by, and at least 75% of its directors being, "qualified persons". As from 31 March 1989, fishing vessel registrations under the 1894 Act would lapse and the owners would be required to re-register under the 1988 Act. None of Factortame's vessels could satisfy the new requirements and an action for judicial review was brought by its owners in the Divisional Court of the High Court of Justice of England and Wales in December 1988. 抄文引用元・出典: フリー百科事典『 ウィキペディア（Wikipedia）』 ■ウィキペディアで「R (Factortame Ltd) v Secretary of State for Transport」の詳細全文を読む スポンサード リンク
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