Southampton Port Health Authority v Seahawk Marine Foods Ltd

A border health authority may reject imported food for non-compliance with applicable public-health conditions without proving that the particular goods constitute an actual risk to human health. Microbiological indicators may be used to investigate possible breaches of Community hygiene requirements and to support rejection, even where the relevant indicator standards are expressed as guidelines for manufacturers. The authority must act within the Community legislation and rationally assess the evidence. In technical matters, proportionality normally requires evidence about accepted practice and practicable alternatives. Origin-state certification does not prevent border authorities from acting on contrary evidence. Courts should address the substance of a public-health decision rather than quash it for an imperfect notice.

Seahawk Marine Foods Ltd sought to import frozen cooked shrimps from Vietnam. The appellant health authority rejected two consignments at Southampton under regulation 25(1) of the Products of Animal Origin (Import and Export) Regulations 1996, relying on aerobic colony counts and the applicable Community import and hygiene requirements.

Newman J quashed the decision, holding in substance that rejection required proof of an actual public-health risk or a proved breach of a relevant condition. The authority appealed. The central issues were whether actual risk was necessary, whether the authority could rely on indicator counts and whether its decision was disproportionate, inconsistent or legally uncertain.

The appeal was allowed unanimously. The order of Newman J was set aside, the application for judicial review was dismissed and the health authority’s decision was restored.

1. Construction of regulation 25(1). The two contingencies in regulation 25(1) are disjunctive: a consignment may be dealt with for non-compliance with public-health conditions or because it constitutes a risk to animal or human health. An actual risk to human health is therefore not a necessary condition of action under the first limb.
2. Scope of the Community powers. Annex C, paragraph 5 of Commission Decision 93/13/EEC permitted additional examinations to verify compliance with Community or national import legislation. The authority could use aerobic bacterial counts as indicators of possible breaches of the processing, hygiene and own-check requirements in Council Directive 91/493/EEC. The fact that the counts in paragraph 3 of the Annex to Commission Decision 93/51/EEC were guidelines for manufacturers did not create a licence to market goods free from later border intervention.
3. Free movement and public health. The court declined to adopt a presumption favouring importation which could be displaced only by clear provisions. Free trade and consumer health were both fundamental Community interests, so the legislation had to be approached without preconception as to which interest would prevail.
4. Proportionality. The authority’s rejection of the consignments was not shown to be disproportionate. In technical decision-making, a court should be cautious before assessing proportionality without evidence concerning normal practice and feasible alternatives. The unchallenged expert evidence supported the conclusion that further pathogen testing was impracticable and that the counts indicated an increased risk of breaches of hygiene requirements.
5. Other objections. Vietnamese certification was not conclusive. The different treatment of a third consignment was rationally explained by the absence of evidence that the consignments had been produced under identical conditions. Any defect in the wording of the notice did not justify quashing the decision, since its substance was clear and the authority could in any event have retaken the decision.
6. No reference to the European Court of Justice was necessary or proportionate. The questions either did not arise, were unarguable on the facts, or sought application of Community-law principles to the particular evidence.

The appellant was ordered to pay the respondent’s costs of the appeal and the judicial-review proceedings below. Permission to appeal to the House of Lords was refused.

• Court of Appeal (Civil Division): Appeal allowed; the order of Newman J dated 5 April 2001 was set aside, and the judicial-review application was dismissed.
• Administrative Court: Newman J had quashed the health authority’s decision of 5 October 2000 and made consequential arrangements concerning further testing.