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Table of Contents

  1. Acknowledgments
  2. Chapter one: Defining the constitution
  3. Chapter two: Parliamentary sovereignty
  4. Chapter three: The rule of law and the separation of powers
  5. Chapter four: The royal prerogative
  6. Chapter five: The House of Commons
  7. Chapter six: The House of Lords
  8. Chapter seven: The electoral system
  9. Chapter eight: Parliamentary privilege
  10. Chapter nine: Constitutional conventions
  11. Chapter ten: Local government
  12. Chapter eleven: Parliamentary sovereignty within the European Union
    1. Van Gend en Loos v Nederlandse Tariefcommissie (case 26/62) [1963] ECR 1.
    2. Costa v ENEL (case 6/64) [1964] ECR 585 - ECJ
    3. Costa v ENEL (case 6/64) [1964] ECR 585 - Italian Constitutional Court
    4. Franz Grad v Finanzamt Traunstein (case 9/70) [1970] ECR 825
    5. Politi SAS. v Ministry for Finance of the Italian Republic (Case 43-71) [1971] ECR 1039.
    6. Internationale Handelsgesellchaft mbH v Einfuhr- & Vorratsstelle fur Getreide & Futtermittel (Case 11/70) [1970] ECR 1125; before the ECJ
    7. Syndicat Generale des Fabricants de Semoules [1970] CMLR 395 - (French Conseil d'Etat)
    8. Internationale Handelsgesellchaft mbH v Einfuhr- & Vorratsstelle fur Getreide & Futtermittel (Solange I) [1974] 2 CMLR; (German Federal Constitutional Court)
    9. Minister for Economic Affairs v SA Fromagerie Franco-Suisse 'Le Ski' [1972] CMLR 330; before the Belgian Cour de Cassation
    10. Administration des Dounaes v Societe Cafes Jacques Vebre Jacques Vabres [1975] 2 CMLR 336 - before the French Cour de Cassation
    11. Frontini v Minister delle Finanze [1974] 2 CMLR 372 (Italian Constitutional Court)
    12. Blackburn v Attorney-General [1971] 2 All ER 1380
    13. European Communities Act 1972
    14. Van Duyn v The Home Office (case 41/74) [1974] ECR 1337.
    15. Walrave v Koch (case 36/74) [1974] ECR 1405
    16. DeFrenne v Sabeena (case 43/75) [1976] ECR 455
    17. Administrazione Dealla Finanze dello Stato v Simmenthal (case 106/77) [1978] ECR 629
    18. Minister of the Interior v Daniel Cohn-Bendit [1980] 1 CMLR 543; (before the French Conseil D'Etat)
    19. Macarthys Ltd v Smith [1979] 3 All ER 325
    20. Garland v British Rail Engineering Ltd [1982] 2 All ER 402
    21. Marshall v Southampton Area Health Authority (case 152/84) [1986] ECR 723; [1986] 1 CMLR 688.
    22. Von Colson and Kamann v Land Nordrhein-Westfalen (case 14/83) [1984] ECR 1891
    23. On the Application of Wunsche Handelsgesellschaft (Solange II) [1987] 3 CMLR 225; before the German Federal Constitutional Court
    24. Marleasing SA v La Commercial Internacional de Alimentacion SA (case C-106/89) [1990] ECR I-4135
    25. Francovich and Bonifaci v Italy (cases 6/90 and 9/90) [1991] ECR I-5357; [1993] 2 CMLR 66
    26. Duke v GEC Reliance Ltd [1988] 1 All ER 626
    27. Litster and others v Forth Dry Dock and Engineering Co Ltd and another [1989] 1 All ER 1134
    28. Factortame Ltd and others v Secretary of State for Transport [1989] 2 All ER 692
    29. Factortame Ltd and others v Secretary of State for Transport (No 2) (Case C-213/89) [1991] 1 All ER 70
    30. R v Secretary of State for Transport, ex parte Factortame (no.2) [1991] 1 All ER 70 (House of Lords)
    31. Thoburn v Sunderland City Council and other appeals [2002] EWHC 195 Admin; [2003] QB 151; [2002] 4 All ER 156
  13. Chapter twelve: The governance of Scotland and Wales
  14. Chapter thirteen: Substantive grounds of judicial review 1: illegality, irrationality and proportionality
  15. Chapter fourteen: Procedural grounds of judicial review
  16. Chapter fifteen: Challenging governmental decisions: the process
  17. Chapter sixteen: Locus standi
  18. Chapter seventeen: Human rights I: Traditional perspectives
  19. Chapter eighteen: Human rights II: Emergent principles
  20. Chapter nineteen: Human rights III: New substantive grounds of review
  21. Chapter twenty: Human rights IV: The Human Rights Act 1998
  22. Chapter twenty-one: Human rights V: The impact of The Human Rights Act 1998
  23. Chapter twenty-two: Human rights VI: Governmental powers of arrest and detention
  24. Chapter twenty-three: Leaving the European Union

Factortame Ltd and others v Secretary of State for Transport (No 2) (Case C-213/89) [1991] 1 All ER 70

THE COURT OF JUSTICE delivered the following judgment.

1. By a judgment of 18 May 1989, which was received at the court on 10 July 1989, the House of Lords referred to the Court of Justice for a preliminary ruling under art 177 of the EEC Treaty two questions on the interpretation of Community law (see Factortame Ltd v Secretary of State for Transport [1989] 2 All ER 692, [1990] 2 AC 85). Those questions concern the extent of the power of national courts to grant interim relief where rights claimed under Community law are at issue....

13. The House of Lords, before which the matter was brought, gave its above-mentioned judgment of 18 May 1989 (see [1989] 2 All ER 692, [1990] 2 AC 85). In its judgment it found in the first place that the claims by the applicants that they would suffer irreparable damage if the interim relief which they sought were not granted and they were successful in the main proceedings were well founded. However, it held that, under national law, the English courts had no power to grant interim relief in a case such as the one before it. More specifically, it held that the grant of such relief was precluded by the old common law rule that an interim injunction may not be granted against the Crown, that is to say against the government, in conjunction with the presumption that an Act of Parliament is in conformity with Community law until such time as a decision on its compatibility with that law has been given.

14. The House of Lords then turned to the question whether, notwithstanding that rule of national law, English courts had the power, under Community law, to grant an interim injunction against the Crown.

15. Consequently, taking the view that the dispute raised an issue concerning the interpretation of Community law, the House of Lords decided, pursuant to art 177 of the EEC Treaty, to stay the proceedings until the Court of Justice had given a preliminary ruling on the following questions....

17. It is clear from the information before the court, and in particular from the judgment making the reference and, as described above, the course taken by the proceedings in the national courts before which the case came at first and second instance, that the preliminary question raised by the House of Lords seeks essentially to ascertain whether a national court which, in a case before it concerning Community law, considers that the sole obstacle which precludes it from granting interim relief is a rule of national law must disapply that rule.

18. For the purpose of replying to that question, it is necessary to point out that in its judgment in Amministrazione delle Finanze dello Stato v Simmenthal SpA Case 106/77 [1978] ECR 629 at 643 (paras 14, 17) the court held that directly applicable rules of Community law must be fully and uniformly applied in all the Member States from the date of their entry into force and for so long as they continue in force [and that] in accordance with the principle of the precedence of Community law, the relationship between provisions of the Treaty and directly applicable measures of the institutions on the one hand and the national law of the Member States on the other is such that those provisions and measures ( by their entry into force render automatically inapplicable any conflicting provision of national law.

19. In accordance with the case law of the court, it is for the national courts, in application of the principle of co-operation laid down in art 5 of the EEC Treaty, to ensure the legal protection which persons derive from the direct effect of provisions of Community law.....

20. The court has also held that any provision of a national legal system and any legislative, administrative or judicial practice which might impair the effectiveness of Community law by withholding from the national court having jurisdiction to apply such law the power to do everything necessary at the moment of its application to set aside national legislative provisions which might prevent, even temporarily, Community rules from having full force and effect are incompatible with those requirements, which are the very essence of Community law (see the Simmenthal case...).

21. It must be added that the full effectiveness of Community law would be just as much impaired if a rule of national law could prevent a court seised of a dispute governed by Community law from granting interim relief in order to ensure the full effectiveness of the judgment to be given on the existence of the rights claimed under Community law. It follows that a court which in those circumstances would grant interim relief, if it were not for a rule of national law, is obliged to set aside that rule.

22. That interpretation is reinforced by the system established by art 177 of the EEC Treaty, whose effectiveness would be impaired if a national court, having stayed proceedings pending the reply by the Court of Justice to the question referred to it for a preliminary ruling, were not able to grant interim relief until it delivered its judgment following the reply given by the Court of Justice.

23. Consequently, the reply to the question raised should be that Community law must be interpreted as meaning that a national court which, in a case before it concerning Community law, considers that the sole obstacle which precludes it from granting interim relief is a rule of national law must set aside that rule.