Bloomsbury International Limited and others v Sea Fish Industry Authority and Department for Environment, Food and Rural Affairs

The phrase "landed in the United Kingdom" in section 4(3) of the Fisheries Act 1981 is not confined to the first landing after catch but extends to arrivals of sea fish and sea fish products into the territory, including imports; rather than narrowing domestic executive power to avoid EU incompatibility, the proper construction is to read the Act so that a levy imposed under the statutory scheme is part of a general system of internal dues and thus, if challenged, falls for assessment under article 110 rather than as a charge having equivalent effect to customs duties under articles 28–30 TFEU.

The respondents were importers challenging levies imposed under the Fisheries Act 1981 and the Sea Fish Industry Authority (Levy) Regulations 1995. The issues on appeal were (i) whether the statutory power to impose levies extended to sea fish or parts first landed outside the United Kingdom and later imported into the United Kingdom, and (ii) whether any such levy constituted a charge having equivalent effect to customs duties in breach of Articles 28 and 30 TFEU, in which case it would be void as regards intra‑EU imports. The High Court dismissed the respondents’ claim, the Court of Appeal allowed it. The Supreme Court allowed the appeal, holding that "landed" bears the wider territorial meaning and that the regulatory scheme constitutes a general system of internal dues falling within Article 110 TFEU rather than a CEE. The Court declined to make a reference to the Court of Justice under Article 267 TFEU.

Held (majority: Lord Mance, with whom Lords Walker, Hale and Collins agree; Lord Phillips concurring)

1. Disposition: The appeal is allowed. The judgment of Hamblen J dismissing the respondents' claim is restored and the Authority's counterclaim for levy is allowed in accordance with the judge's orders (paras 54, 1).
2. Statutory construction — "landed":
   1. The correct construction of "landed in the United Kingdom" in section 4(3) of the Fisheries Act 1981 is the broader territorial meaning covering arrival in the United Kingdom (including imports), not merely first ashore after catch (paras 9–21, 19). The word must be read in the statutory context of the Act's purpose and scheme (sections 2(1), 14(2)) and the definition of "persons engaged in the sea fish industry" (paras 10–15).
   2. Practical and historic considerations (predecessor legislation and longstanding practice of levying on imports) and the amendment extending "landing" to the Channel Tunnel reinforce the broader meaning; the narrower reading produced anomalous and irrational distinctions between modes of entry and between those who benefit from and those who contribute to the levy (paras 11–19, 62–66).
   3. It is unnecessary to consider Hansard for the construction in this case because the wider meaning is plainly correct; had Hansard been admissible it would in any event have supported the broader meaning (para 20).
3. EU law — charge having equivalent effect (CEE) v internal taxation (Article 110):
   1. The distinction between a CEE (Articles 28 and 30) and an internal tax within Article 110 is clear in principle: a CEE is imposed solely or exclusively by reason of frontier crossing, whereas internal taxation falls on domestic and imported products (paras 22–31).
   2. The authorities (including Steinike, Haahr, Outokumpu and related case‑law) show that a charge forming part of a general system of internal dues applied systematically according to objective criteria irrespective of origin is not a CEE but falls to be assessed under Article 110 (paras 30–39, 49–50).
   3. Applied to the present scheme, the Regulations and section 4 operate as a coherent system of levies related to the sea‑fish content and applied according to objective criteria and marketing stages; in economic terms the chargeable events on imports and domestic products correspond and the scheme is a general system of internal dues (paras 40–50).
   4. Accordingly the levy is not a CEE prohibited by Articles 28 and 30 but part of an internal taxation system to be assessed under Article 110; the Court rejected the respondents' contention that the levy was a CEE (paras 50, 54).
4. Preliminary reference: No Article 267 reference to the Court of Justice was necessary because the relevant principles are established and the national court should apply them to the facts (para 51).
5. New points: The Supreme Court declined to entertain novel submissions raised for the first time concerning non‑EU imports and detailed discrimination arguments under Article 110, as these would require further factual enquiry and were not properly before the Court (paras 52–53).
6. Practical guidance: When construing statutory words inserted into a statutory scheme and long acted on, contemporaneous practice and the statutory purpose are material guides; where a regulatory scheme can coherently be read to avoid EU incompatibility, courts should prefer that reading, but do not construe the domestic statute by reference to EU law where the incompatibility would instead affect subordinate regulations (paras 10, 20, 21, 44).

• Court of Appeal: [2010] EWCA Civ 263 — allowed the respondents' challenge (citation provided in the cover sheet).
• High Court (Queen's Bench): [2009] EWHC 1721 (QB) — Hamblen J dismissed the respondents' claim; this was the decision restored by the Supreme Court.