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Factortame - Essay Example

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The laudable aims of free trade and environmental protection often run afoul of one another, as policies and laws that seek to favor one tend to hamstring the other. These two aims collided in the Factortame case, because the European Union's Common Fisheries Policy, which had been established in 1970, sought to open access to fishing waters within the EU to all member states…
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This decision seriously threatened the livelihood of Factortame Limited, whose Spanish directors had re-registered 53 Spanish-registered boats as British boats, and also purchased 42 British-registered boats, for a fleet of almost 100 fishing boats to use in UK waters. When the Merchant Shipping Act 1988 was passed, Factortame sought to have a British court overturn it, because it violated the Common Fisheries Policy, and legal principle held that Community law held sway over national law. This had been set as precedent by the ECJ in Costa v. ENEL in 1964 (Drewry, p. 101), but that did not stop the Court of Appeal and the House of Lords make Factortame seek remedy in the ECJ before starting the process on British soil. The Factortame received far more publicity than did Costa, and it brought home to the British public a fact that had been clear to the British legal community for some time: that, in many ways, British sovereignty had been changed as soon as the British government acceded to membership in the EC (Oliver p. 2). Over time, the British courts have moved to make this change a reality through case law. In the instance of Factortame, the court invalidated provisions that were contradictory to European law, and precedents over time have altered the doctrine of implied repeal. Other changes have included an alteration in the common law presumption of compliance between British statutes and international law, as well as a change in the way that the common law of remedies works, so that it dovetails with European requirements (Oliver, p. 1).
Much press has been given to the ways that the European Union has allegedly attempted to rob its member countries of their individuality by instituting regulations in a number of silly ways. According to an editorial in the New York Times, a large urban mythology about this has grown up:
The European Union has long tried to dispel myths that its zealous bureaucrats are trying to impinge on national cultures in their bid to harmonize standards in the world's biggest trading bloc. Such myths have included that cucumbers sold in the European Union must not arch more than 10 millimeters for every 10 millimeters of length; that it is against health rules to feed swans stale bread; and that Brussels had decided that shellfish must be given rest breaks and stress-relieving showers during boat journeys over 50 kilometers long." (European Union).
Since the Factortame case came well after the Costa case, which was the groundbreaking precedent in establishing the supremacy of European law over national law, it is interesting that it was this case that attracted such attention in the public arena. As Gavin Drewry points out, the case of Factortame was much less of an earthquake in legal circles than it was in public opinion, because relevant precedent had been set almost fifteen years before, and the legal community was accustomed to seeing British statutes get set aside when they came into conflict with European law. The timing of Factortame was what made the case such a significant event in the public arena: it occurred during Prime Minister Thatcher's Conservative ...Download file to see next pagesRead More
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