Legal Case Summary
R v Secretary of State for Transport, ex parte Factortame ECJ ([1990] 2 Lloyds Rep 351, [1990] 3 CMLR 1, C-213/89 (Factortame No.1)
Reaffirmed the supremacy of European Community law over the domestic laws of a Member State in the event of conflict
Facts
New British legislation required that to register a ship in Britain, most of its owners to be of British nationality. Subsequently, a group of fishermen from Spain requested a judicial review of this law, asserting that it breached EC laws.
Issues
In the event of incompatibility between domestic and EC legislation, where the EC has competence, so their laws shall have supremacy.
Decision/Outcome
The House of Lords found for the fishermen and in this watershed case, the Court viewed that they were empowered under EC law to restrict parliamentary legislation and disregard it where it juxtaposed with EC law. Subsequently, the supremacy of EC laws in areas where competences had been delegated sovereignty was affirmed. Moreover, it was found that a Member State could have financial liability imposed on them for breaching EC law and have private claims brought against them for remedies by any person who had experienced a directly connected loss resultant from the Member State’s actions (the principle of state liability). As it could not be evidenced that Parliament directly intended to contravene EC law, the statute ought be reasonably interpreted to give effect to EC law. Significantly, on the matter of kompetenz-kompetenz, that is who has the ultimate right to decide what falls in the European Court of Justice’s jurisdiction, the matter remains unclear.
Updated 13 March 2026
This summary remains broadly accurate as a description of the legal principles established in Factortame at the time of the decisions. However, readers should be aware of several important points affecting the current relevance of this case.
Brexit and the end of EU supremacy in UK law: The supremacy of EU law over UK domestic law, which Factortame so prominently established, no longer applies in the United Kingdom. The European Union (Withdrawal) Act 2018 ended the constitutional basis for EU law supremacy in domestic law. The principle of the primacy of EU law was formally removed from retained EU law by the Retained EU Law (Revocation and Reform) Act 2023. As a result, the core constitutional holding of Factortame — that UK courts could disapply Acts of Parliament where they conflicted with EC law — is no longer operative as a live legal principle in UK law. Courts may no longer set aside primary legislation on the ground that it conflicts with EU law.
State liability: The principle of state liability for breach of EU law (developed further in Joined Cases C-6/90 and C-9/90, Francovich v Italy and Joined Cases C-46/93 and C-48/93, Brasserie du Pêcheur / Factortame III) similarly no longer applies to the UK as a matter of EU law following Brexit, though the domestic courts have grappled with how far analogous remedies might survive in domestic law in certain contexts.
Historical and comparative value: The case retains significant importance as a matter of constitutional history, EU law, and comparative public law, and continues to be widely cited in academic and legal discussions of parliamentary sovereignty and the relationship between international treaty obligations and domestic law. Students should understand its principles in that context while recognising that its direct constitutional effect in the UK has been superseded by Brexit legislation.
