Bloomsbury International Ltd & Ors v The Sea Fish Industry Authority Department for Environment, Food and Rural Affairs

The power under section 4(3) of the Fisheries Act 1981 to levy sea fish and sea fish products landed in the United Kingdom ordinarily concerns fish brought to land by the vessel that caught them. It does not, without clearer language, extend to goods previously landed abroad and imported. Regulations imposing a levy on such imports are ultra vires. Alternatively, a levy on land-processed fish products imported from EU Member States was a charge having equivalent effect to a customs duty under articles 28 and 30 TFEU. Domestic and imported products were not subject to the same charge at the same marketing stage. A charge on imports cannot be justified as compensation for a levy imposed on ingredients at an earlier stage.

Eight importing companies appealed from Hamblen J’s decision in the Queen’s Bench Division, reported at [2009] EWHC 1721 (QB). The judge held that the Fisheries Act 1981 authorised the Sea Fish Industry Authority to impose a levy on imported sea fish and sea fish products, and that the levy was compatible with EU law.

The appeal concerned the meaning of landed in section 4(3) of the Act and, alternatively, whether the levy on imports from EU Member States was prohibited as a charge having equivalent effect to a customs duty.

The appeal was allowed unanimously.

1. Section 4(3) of the Fisheries Act 1981 uses landed in its normal fisheries sense. It refers to fish or fish products brought to land by the fishing vessel that caught the fish. It does not ordinarily include fish previously landed elsewhere and then imported into the United Kingdom. The expression is context-sensitive, but the statutory context did not justify adopting the wider meaning.

2. The references to sea fish products, importers, benefits for the industries of other Member States and the Channel Tunnel amendment did not displace that conclusion. The inclusion of products was effective in relation to products processed on board fishing vessels. The Channel Tunnel amendment was an anomaly and did not generally enlarge the pre-existing meaning of landed. The legislative history and earlier levy schemes did not establish the contrary construction. The Sea Fish Industry Authority (Levy) Regulations 1995 were therefore ultra vires section 4 insofar as they imposed a levy on imports, subject to exceptional cases where fish were landed in the United Kingdom in the narrower sense.

3. Richards LJ considered the EU-law issue in the alternative. A charge on imported land-processed sea fish products was imposed by reason of their crossing the frontier, because importation was a condition of liability under regulation 2 and regulation 5 did not alter that basis. The formal uniformity of the Regulations was insufficient. In substance, comparable domestic products processed on land in the United Kingdom were not subject to the same levy at the same marketing stage.

4. The levy was consequently a charge having equivalent effect to a customs duty, contrary to articles 28 and 30 TFEU. A levy on imported products could not be justified as compensation for a levy imposed at an earlier production or marketing stage on the fish or products from which comparable domestic products were made. The domestic-law conclusion made the EU-law conclusion unnecessary to the result, but the Act would in any event have to be construed, so far as possible, consistently with EU law.

• Court of Appeal (Civil Division): The appeal was allowed. The levy regulations were ultra vires insofar as they imposed a levy on imports.
• High Court, Queen’s Bench Division: Hamblen J decided the determinative issues in favour of the Authority, holding that the Act authorised levies on imports and that the levy was compatible with EU law: [2009] EWHC 1721 (QB).