United Kingdom Assocation of Fish Producer Organisations v Secretary of State for Environment, Food And Rural Affairs

A fishing quota allocation system does not create a permanent entitlement merely because quota has historically been allocated by reference to fixed quota allocation units. A substantive legitimate expectation requires a clear, unambiguous and relevantly unqualified undertaking, assessed by its fair meaning to the persons concerned. Even where such an expectation exists, it may be frustrated where the decision is objectively justified and proportionate in the public interest.

Fixed quota allocation units may constitute possessions under article 1 of Protocol 1 to the Convention and article 17 of the Charter, but reallocating consistently unused quota caused no material economic interference. A difference in treatment arising from the practical administration of devolved fisheries arrangements was not discriminatory.

The claimant, representing English fish producer organisations, challenged the Secretary of State’s decision of 10 February 2012 to reallocate fixed quota allocation units associated with consistently under-utilised quota. The quota was transferred for the benefit of the under-10-metre fleet.

The claim alleged frustration of substantive legitimate expectations, unlawful interference with possessions protected by article 1 of Protocol 1 to the Convention and article 17 of the Charter, and unlawful discrimination contrary to European Union law. The central issues were whether the allocation system generated enforceable expectations, whether the decision interfered with protected possessions, and whether its territorial and organisational scope was objectively justified.

1. The claim was dismissed. The Secretary of State had power under article 20(3) of Council Regulation (EC) 2371/2002 to determine the method of allocating fishing opportunities, subject to European Union law.
2. A substantive legitimate expectation requires a clear, unambiguous and relevantly unqualified undertaking. The representation must be assessed by asking how it would reasonably have been understood on a fair reading. The mere existence of a scheme or consistent past practice is insufficient to establish an expectation that the scheme will remain unchanged.
3. The fixed quota allocation system, the annual Rules, ministerial statements and consultation material did not amount to an undertaking that fixed quota allocation units were permanent entitlements or that the system could not be adjusted to address persistent under-utilisation. The annual Rules expressly contemplated review, amendment and departure where necessary.
4. Even if an expectation had arisen, the decision was justified and proportionate. Fisheries management was a macro-political and contentious field involving scarce resources and competing social, economic and environmental interests. The methodology used filters, consultation, industry input and an appeal process, and alternative mechanisms had proved ineffective.
5. Fixed quota allocation units were possessions for the purposes of article 1 of Protocol 1 and article 17 of the Charter because they had monetary value and could be marketed or used as security. Nevertheless, the decision caused no material economic interference. The affected quota had consistently gone unused and did not confer a right to a specified quantity of fish.
6. The decision did not unlawfully discriminate. Its focus on English producer organisations reflected devolved administrative responsibility, the organisations’ role in managing quota, and the absence of sufficiently detailed data from the industry. Any difference in treatment was objectively justified by the aim of maximising quota utilisation.