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

The court holds that the word "landed" in section 4(3) of the Fisheries Act 1981 should be given its narrower fisheries meaning (fish brought to land by the catching vessel) rather than stretched to cover ordinary imports; and that, in any event, construing the statute to subject imported, land-processed fish products to the levy would infringe EU free movement rules, so the levy cannot lawfully apply to such imports.

The appellants are companies importing sea fish and sea fish products who challenged the lawfulness of levies imposed under the Sea Fish Industry Authority (Levy) Regulations 1995 which, by their terms, apply to imports. Hamblen J in the Queen's Bench Division upheld the regulations. The Court of Appeal (Richards LJ giving the lead judgment, with Rimer and Mummery LJJ agreeing) considered (1) whether "landed" in section 4(3) of the Fisheries Act 1981 extends to imports first landed abroad and then brought into the UK, and (2) whether, if so, the levy on such imports is a charge having equivalent effect to a customs duty in breach of articles 28 and 30 TFEU. The court allowed the appeal, preferring a narrower meaning of "landed" and concluding that applying the levy to imports of products processed on land would also breach EU law.

1. Disposition. The appeal is allowed. The Court holds that the 1995 Regulations are ultra vires section 4 of the Fisheries Act 1981 so far as they impose a levy on imports of sea fish and sea fish products not "landed" in the narrower fisheries sense; and, alternatively, applying the wider meaning would conflict with EU law.
2. Construction of "landed".
   1. "Landed" in section 4(3) is given its normal fisheries meaning — fish brought to land by the vessel that caught them — rather than an extended meaning covering ordinary imports. The court reasons from linguistic context within Part I and the statute as a whole, the treatment of sea fish products, and legislative drafting expectations that an extension to imports would have been made explicit.
   2. Contextual points relied on by the judge below (including inclusion of importers in section 14(2)(b), the Channel Tunnel amendment in section 4(8)(b), the insertion of section 2(2A), and historical practice of levying imports) were considered but did not outweigh the ordinary fisheries meaning in the court's view.
3. EU law (alternative reasoning).
   1. The court summarises the established tests for a charge having equivalent effect (CEE): principally whether the pecuniary charge is imposed by reason of frontier crossing and, if so, whether it can be regarded as part of a general system of internal taxation applying identical criteria to domestic and imported products at the same marketing stage and on the same chargeable event.
   2. As applied to sea fish products processed on land abroad and imported, the 1995 Regulations impose a levy by reason of importation (the definition of "firsthand sale" conditions importation) and in practice treat imported processed products differently from the similar domestic processed products (which are not "first landed" in the UK and so do not become subject to the levy). Looking to form and effect (not merely formal parity) the court concludes the levy on such imports is a CEE in breach of articles 28 and 30 TFEU.
4. Remedy and outcome. The regulations are thus unlawful to the extent that they impose levies on ordinary imports of sea fish and sea fish products not landed in the narrower sense; the appeal is allowed for those reasons and, alternatively, for incompatibility with EU law.

• Court of Appeal (Civil Division) – allowed the appeal and held the 1995 Regulations ultra vires and incompatible with EU law in respect of imports (this judgment) [2010] EWCA Civ 263.
• High Court (Queen's Bench Division) – Hamblen J had dismissed the companies' challenge and upheld the Authority's construction of the statute [2009] EWHC 1721 (QB) (decision under appeal).