Supreme Court upholds levy on imports of sea fish into the United Kingdom

15/06/11

The Supreme Court has given judgment on the extent of the powers of the Sea Fish Industry Authority ("the Authority") pursuant to the Fisheries Act 1981 ("the 1981 Act") and under 2005 Regulations to impose a levy on persons engaged in the sea fish industry and on the compatibility of those provisions with the prohibition on charges having equivalent effect to a customs duty ("CEE") under Articles 28 and 30 of the TFEU.

Bloomsbury International, importers of sea fish and sea fish products, challenged the power of the Authority, falling within the remit of the Department for Environment, Food and Rural Affairs (DEFRA), to impose a levy on imported sea fish and sea fish products. The basis of the challenge was that the levy was ultra vires the 1981 Act, which, they argued, restricted the imposition of a levy to fish "landed" in the UK and did not include fish landed in another country and then imported into the UK. The second ground raised by Bloomsbury International was that the levy was a CEE contrary to Articles 28 and 30 TFEU. The Authority was successful in the High Court, but lost on appeal. DEFRA appealed, supported by the Authority as an intervener.

The Supreme Court, in judgments delivered by Lords Mance and Phillips, unanimously reversed the decision of the Court of Appeal. Firstly, the Supreme Court held that the power of the Authority to impose a levy under s. 4 of the 1981 Act does extend to sea fish and sea fish products which are "landed" in a non-UK country and then imported into the UK. In so finding, the Court adopted a wide interpretation of the word "landed". It rejected a narrow interpretation (which would only include the first landing of fish in the UK after catch) on the basis that, while the scheme operated by the Authority promotes the sea fish industry including importers, a narrow interpretation would mean few importers to whom the scheme extends would actually contribute. The Court also pointed to the fact that predecessor schemes to that introduced by the 1981 Act had imposed levies on importers, and identified no reason to suggest a change of policy under 1981 Act to exclude importers. In addition, the Court relied on s.4(8) of the 1981 Act which expressly includes within the meaning of "landed" the bringing of sea fish and sea fish products through the Channel Tunnel. It would, the Court held, be discriminatory and irrational to distinguish between imports by sea and air, on the one hand, and through the Channel Tunnel, on the other.

Second, the Court held that, in so extending to imported fish and fish products from other EU Member States, the levy is not contrary to Articles 28 and 30 of the TFEU as an impermissible CEE. The Court pointed to the principal feature of a CEE as being levied solely or exclusively by reason of goods crossing the frontier, whereas domestic products are excluded from similar charge. Having considered in some detail the case-law of the Court of Justice, the Court held that the levy was not a CEE, but rather formed part of a general system of internal dues applied systematically to categories of products according to objective criteria applied without distinction as to the origin of the products, such that it would fall to be considered instead under Article 110 TFEU. The Court concluded that the levy was consistently imposed at a point when sea fish or sea fish products are placed on the UK market and enter the supply chain.

The judgment is here.