Bloomsbury International Ltd & Others v Sea Fish Industry Authority & Anothers
| Jurisdiction | England & Wales |
| Judge | Lord Justice Richards,And,Lord Justice Rimer,Lord Justice Mummery |
| Judgment Date | 18 March 2010 |
| Neutral Citation | [2010] EWCA Civ 263 |
| Docket Number | Case No: A2/2009/1748 |
| Court | Court of Appeal (Civil Division) |
| Date | 18 March 2010 |
[2010] EWCA Civ 263
IN THE HIGH COURT OF JUSTICE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Mr Justice Hamblen
Before: Lord Justice Mummery
Lord Justice Richards
and
Lord Justice Rimer
Case No: A2/2009/1748
Charles Graham QC and Valentina Sloane (instructed by The Wilkes Partnership) for the Appellants
Charles Flint QC and Robert Weekes (instructed by Nabarro LLP) for the First Respondent
Iain Quirk (instructed by the Solicitor to DEFRA) for the Second Respondent
Hearing dates : 17–18 February 2010
Lord Justice Richards :
The question at the centre of this appeal is whether the power under section 4 of the Fisheries Act 1981 (“the 1981 Act”) to impose a levy in respect of sea fish and sea fish products “landed” in the United Kingdom extends to the imposition of a levy in respect of sea fish and sea fish products first brought to land elsewhere and then imported into the United Kingdom. If the power extends to imports, a further question is whether a levy is contrary to articles 28 and 30 of the Treaty on the Functioning of the European Union (“the TFEU”), as a charge having an effect equivalent to a customs duty, in so far as it applies to imports from other EU Member States.
The power to impose a levy is conferred on the Sea Fish Industry Authority (“the Authority”), the first respondent to the appeal. The regulations by which the Authority has exercised that power are currently the Sea Fish Industry Authority (Levy) Regulations 1995 (“the 1995 Regulations”), as contained in the schedule to the Sea Fish Industry Authority (Levy) Regulations 1995 Confirmatory Order 1996 (SI 1996 No. 160). Those regulations expressly cover imports. The appellants (“the companies”) are a group of importing companies which challenge the legality of the levy in so far as it applies to imports. A number of issues were directed for hearing before Hamblen J who, in an extremely clear and helpful judgment, decided the determinative issues in favour of the Authority.
The companies appeal, with permission granted by the judge, against the judge's findings that (1) the 1981 Act is to be read as empowering the imposition of a levy in respect of imports and (2) the imposition of such a levy is not contrary to EU law. The appeal is resisted by the Authority. The Department for Environment, Food and Rural Affairs played an active part in the proceedings below but its role in the appeal has been limited to supporting the Authority's position.
Part I (sections 1–14) of the 1981 Act as amended concerns the constitution and functions of the Authority. The material provisions are these:
“2. Duties of the Authority
(1) Subject to subsection (2A) below it shall be the duty of the Authority to exercise its powers under this Part of this Act for the purpose of promoting the efficiency of the sea fish industry and so as to serve the interests of that industry as a whole.
(2) In exercising its powers under this Part of this Act the Authority shall have regard to the interests of consumers of sea fish and sea fish products.
(2A) If any levy imposed under section 4 below has effect in relation to sea fish or sea fish products from the sea fish industries of member States other than the United Kingdom, the Authority shall so exercise its powers under this Part of this Act as to secure that benefits are conferred on those industries commensurate with any burden directly or indirectly borne by them in consequences of the levy.
….
Levies
(1) For the purpose of financing its activities the Authority may impose a levy on persons engaged in the sea fish industry.
(2) Any levy under this section shall be imposed by regulations made by the Authority and confirmed by an order of the Ministers; and in this section ‘prescribed’ means prescribed by such regulations.
(3) Regulations under this section may impose a levy either –
(a) in respect of the weight of sea fish or sea fish products landed in the United Kingdom or trans-shipped within British fishery limits at a prescribed rate which, in the case of sea fish, shall not exceed 2p per kilogram; or
(b) in respect of the value, ascertained in the prescribed manner, of sea fish or sea fish products landed or trans-shipped as aforesaid at a prescribed rate not exceeding 1 per cent of that value.
(4) If regulations under this section impose a levy as provided in subsection (3)(a) above the prescribed rate in relation to any sea fish product shall be such that its yield will not in the opinion of the Authority exceed the yield from a levy at the rate of 2p per kilogram on the sea fish required on average (whether alone or together with any other substance or article) to produce a kilogram of that product.
(5) Different rates may be prescribed for sea fish or sea fish products of different descriptions …
(6) Any levy imposed under this section shall be payable by such persons engaged in the sea fish industry, in such proportions and at such times as may be prescribed; and the amount payable by any person on account of the levy shall be a debt due from him to the Authority and recoverable accordingly.
…
(8) For the purposes of this section —
(a) parts of a sea fish shall be treated as sea fish products and not as sea fish;
(b) references to the landing of fish include references to the collection for consumption of sea fish which have been bred, reared or cultivated in the course of fish farming whether in the sea or otherwise and references to the landing of fish or fish products include references to bringing them through the tunnel system as defined in the Channel Tunnel Act 1987.
…
Interpretation of Part I
(1) In this Part of this Act –
…
‘sea fish’ means fish of any kind found in the sea, including shellfish and, subject to section 4(8)(a) above, any part of any such fish but does not include salmon or migratory trout.
(2) For the purposes of this Part of this Act other than sections 2(2A) and 3(5) ‘the sea fish industry’ means the sea fish industry in the United Kingdom and a person shall be regarded as engaged in the sea fish industry if
(a) he carries on the business of operating vessels for catching or processing sea fish or for transporting sea fish or sea fish products, being vessels registered in the United Kingdom; or
(b) he carries on in the United Kingdom the business of breeding, rearing or cultivating sea fish for human consumption, of selling sea fish or sea fish products by wholesale or retail, of buying sea fish or sea fish products by wholesale, of importing sea fish or sea fish products or of processing sea fish (including the business of a fish fryer).”
Section 2(2A) was added in order to meet concerns expressed by the European Commission in 1983 that receipts from the levy benefited only national producers even though the burden of the levy also fell on producers from other member states. The last part of section 4(8)(b), concerning the bringing of fish or fish products through the Channel Tunnel, was added by an order made pursuant to powers conferred by the Channel Tunnel Act 1987.
The 1995 Regulations
The material provisions of the 1995 Regulations are these:
“Interpretation
2. In these Regulations, unless the context otherwise requires, the following expressions have the meanings hereby respectively assigned to them –
…
‘firsthand sale’ means –
(a) in relation to any sea fish or sea fish product which has been first landed in the United Kingdom the first sale thereof (other than a sale by retail) whether prior to or after landing in the United Kingdom;
(b) in relation to any sea fish or sea fish product which has been first landed outside the United Kingdom and any sea fish product manufactured outside the United Kingdom from such sea fish or sea fish product which in either case is purchased by a person carrying on business in the sea fish industry and is imported or brought into the United Kingdom for the purposes of any such business, the first sale thereof (whether in the United Kingdom or elsewhere) to such a person as aforesaid;
(c) in relation to any sea fish or sea fish product which is trans-shipped within British fishery limits, the first sale thereof.
…
‘sale by retail’ means a sale to a person buying otherwise than for the purpose of resale or processing or use as bait, and includes a sale to a person for the purposes of a catering business (other than a fish frying business); and ‘sell by retail’ has a corresponding meaning;
…
Imposition of levy
4.(1) There shall be paid to the Authority subject to and in accordance with the provisions of these Regulations by every person engaged in the sea fish industry who –
(a) purchases any sea fish or any sea fish product on a firsthand sale; or
(b) trans-ships within British fishery limits any sea fish or any sea fish product by way of firsthand sale; or
(c) lands any sea fish or sea fish product in the United Kingdom for subsequent sale other than in the United Kingdom;
a levy (hereinafter referred to as ‘the levy’) at the rate per kilogram set out in the second column of the Schedule hereto in respect of any sea fish or sea fish product specified opposite thereto in the first column of the said...
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