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

Statutory language must be construed in the context of the legislation’s purpose and overall scheme. A power to levy sea fish and sea fish products “landed” in the United Kingdom therefore extended to products imported after an earlier landing abroad.

A levy imposed because goods cross a frontier is not a charge equivalent to customs duty where it forms part of a general system of internal dues. The system must apply systematically to product categories by objective criteria irrespective of origin. Economically equivalent marketing stages and chargeable events may satisfy that requirement. Such a levy falls under article 110 of the Treaty on the Functioning of the European Union, rather than articles 28 and 30.

The respondents were importers assessed to levy under regulations made pursuant to the Fisheries Act 1981. The levy concerned sea fish and sea fish products first brought ashore outside the United Kingdom and subsequently imported. Their challenge failed before the High Court in [2009] EWHC 1721 (QB), but succeeded in the Court of Appeal in [2010] EWCA Civ 263, [2010] 1 WLR 2117.

The Supreme Court considered whether “landed” in section 4(3) included imported products previously landed abroad. It also considered whether the levy was a charge having equivalent effect to customs duty under articles 28 and 30 of the Treaty on the Functioning of the European Union, or internal taxation governed by article 110.

1. The appeal was allowed. Lord Mance delivered the leading judgment, with which Lord Walker, Lady Hale and Lord Collins agreed. Lord Phillips agreed on every issue and added observations on statutory interpretation. The High Court judgment dismissing the importers’ claim was restored, and the Authority’s counterclaim for levy was allowed.

2. The word “landed” in section 4(3) of the Fisheries Act 1981 covered every form of arrival of sea fish and sea fish products in the United Kingdom, including importation after an earlier landing abroad. Statutory purpose and scheme are central to construction and should be identified before assigning an supposedly natural meaning to individual words. Sections 2(1) and 14(2) expressly brought importers within the industry promoted and financed by the Authority. A narrower construction would largely exempt them from contributing and would conflict with the predecessor levy scheme.

   Section 2(2A), the treatment of processed products in sections 4(4) and 4(8), and the express inclusion of Channel Tunnel arrivals confirmed the broad construction. The contrary interpretation would create an irrational distinction between imports by tunnel and those arriving by sea or air. Resort to parliamentary materials under Pepper v Hart was unnecessary.

3. The levy was imposed by reason of importation, notwithstanding that a firsthand sale also triggered liability. That did not make it a charge equivalent to customs duty. Such a charge and internal taxation under article 110 are mutually exclusive categories. A levy falls within article 110 where it forms part of a general system of internal dues applied systematically to product categories according to objective criteria irrespective of origin.

4. The regulations created such a general system. Domestically produced and imported products bore levy proportionate to their fish content when entering the United Kingdom market and supply chain. Products manufactured domestically from fish which had already borne levy were protected from double charging. Products made from fish which had not borne levy remained chargeable. Differences between importation and sale were immaterial because, in economic terms, each marked the same marketing stage.

   The levy therefore fell within article 110 and was not prohibited by articles 28 and 30. Any claim that its rates, assessment basis, benefits or detailed operation discriminated against imports under article 110 remained a separate issue and was not determined.

5. No reference under article 267 was required. The Court of Justice had established the governing principles, leaving their application to the national court. The respondents’ new arguments concerning non-EU imports and discriminatory internal taxation were not entertained.

1. United Kingdom Supreme Court: Allowed the appeal in [2011] UKSC 25, restored the High Court judgment dismissing the importers’ claim and allowed the Authority’s counterclaim for levy.
2. Court of Appeal: In [2010] EWCA Civ 263, [2010] 1 WLR 2117, allowed the importers’ challenge, holding that “landed” bore the narrower meaning and that European Union law supported that construction.
3. High Court: Hamblen J dismissed the importers’ challenge in [2009] EWHC 1721 (QB).