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Liability For Breach
Liability For Breach
Liability For Breach
R (Factortame Ltd) v Secretary of State for Transport 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 were to be registered in the UK. The case
produced a number of significant judgments on British constitutional law, and for
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. In this seminar we only discuss Factortame 3 and 5.
2. How does the Court justify taking upon itself the task of creating the
concept of State liability? What Treaty provisions does it reply upon?
3. How does the Court justify the conditions for State liability which it lays
out?
4. What factors may the national court consider when deciding whether the
breach was sufficiently serious?
Factortame 5:
In this case, the House of Lords discusses whether or not the criteria apply in this
case.
1. What are the criteria the Law Lords use to assess whether there is a
sufficiently serious breach?
Accepted that the UK acted in good faith – on legal advice – but this
was not enough to excuse.
Lord Hoffman – the measures taken were excessive. Not about the
operation of the boats, but the nationality of the shareholders etc.
Lord Hobhouse – primary law; Commission since the beginning
opposed.
Lord Hope – subject matter of the breach; the potential of the breach
for causing damage to those who are likely to suffer loss as a result of
it; the methods used to achieve the result.
:
Part II: Please prepare for the following problem question
Hypothetical:
In June 2014, the Council of Ministers, by a qualified majority vote, adopted (fictitious) Directive
2014/200, a measure designed to increase the protection afforded to young people at work.
Among other things, the Directive provides that no young person shall be required to work at
night. Member States were given three years in which to implement the Directive.
The British Government, which believes that employment practices are best regulated by
national governments, voted against its adoption in the Council and has since refused to
implement the Directive.
On the 10th February 2018, given the UK‘s continued refusal to implement the Directive, the
Commission, without any consultation and without providing any justification, issued (fictitious)
Decision 2018/7, addressed to the Confederation of British Employers (CBE) requiring them,
with immediate effect, to impose financial penalties on any of its members who employ young
people under 18 years of age between the hours of 10 p.m. and 8 a.m.
Question: In the event that Adam and Eve had been sacked by their respective
employers, consider whether they could rely on EU law in proceedings against
the UK Government.