Fishermen win right to damages

Date: 30/11/1995

SPANISH fishermen look set to win substantial damages from the UK government following the release of a preliminary ECJ opinion.

According to Advocate-General Giuseppe Tesauro, a group of mainly Spanish fishermen, known as Factortame III, has the right to sue the UK for breaking EU single market law.

But Tesauro said Brasserie de Pêcheur, a French brewery, was not entitled to compensation from the German government in a similar case.

Tesauro's opinion states that governments should be forced to compensate victims of unlawful decisions, but only when the legal breach has been “manifest and grave” - for example when a member state has been found guilty of disobedience by the Court, but has failed to change its ways, or when it has flagrantly flouted Union law.

In the case of Factortame III, Tesauro found the UK government had deliberately broken single market rules in refusing to grant a licence to fish in British waters to a crew of foreign fishermen. Under the British Merchant Shipping Act, fishing vessels may only work if they are registered in the UK and may only register if their owners meet a list of conditions relating to nationality, residence and domicile. That, ruled Tesauro, amounted to a flagrant breach of EU law for which London should be made to pay.

In the Brasserie de Pêcheur case, however, the advocate-general found that the German government had not “manifestly and gravely” broken the law when it banned the sale of beer which did not meet purity standards in the Federal Republic.

Tesauro's opinion, while not legally binding, is likely to determine the Court's final verdict due next year. Member state governments fear an unfavourable ruling would open the door to a flood of claims. They are likely to be unhappy with Tesauro's opinion, but relieved that he says national courts should decide on compensation.