Bloomsbury International Ltd & Others v Sea Fish Industry Authority & Anothers

JurisdictionEngland & Wales
CourtSupreme Court
JudgeLord Walker,LORD PHILLIPS,Lord Collins,Lady Hale,LORD MANCE
Judgment Date15 June 2011
Neutral Citation[2011] UKSC 25
Date15 June 2011

[2011] UKSC 25

THE SUPREME COURT

Trinity Term

On appeal from: [2010] EWCA Civ 263

before

Lord Phillips, President

Lord Walker

Lady Hale

Lord Mance

Lord Collins

Bloomsbury International Limited

and others

(Respondents)
and
Sea Fish Industry Authority and Department for Environment, Food and Rural Affairs
(Appellant)

Appellant

Hugh Mercer QC

Tim Eicke QC

Iain Quirk

(Instructed by DEFRA Law & Corporate Services)

Respondents (for the 1st, 7th and 8th)

Fergus Randolph QC

Margaret Gray

Karwan Eskerie

(Instructed by The Wilkes Partnership)

Intervener (Sea Fish Industry Authority)

Mark Hoskins QC

Robert Weekes

(Instructed by Treasury Solicitor)

LORD MANCE (with whom Lord Walker, Lady Hale and Lord Collins agree)

Introduction

1

The Sea Fish Industry Authority ("the Authority") is established under the Fisheries Act 1981 with powers granted "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" (section 2(1)). For the purpose of financing its activities, the Authority may, by regulations confirmed by ministerial order, "impose a levy on persons engaged in the sea fish industry" (section 4(1) and (2)).

2

The issues on this appeal are, firstly, whether this power extends to imposing a levy in respect of sea fish or parts of sea fish first brought to land (by the catching or another vessel) outside the United Kingdom and only later imported into the United Kingdom (in the same form or in the form of some other fish product); and, secondly, if it does, whether the imposition of any such levy was and is a charge equivalent to a customs duty, contrary to articles 28 and 30 of the Treaty on the Functioning of the European Union ("TFEU"), in so far as it applies to imports from other EU member states.

3

The respondents are importers who have brought these proceedings to challenge the validity of levies made on them in respect of imports. The appellants are the Department for Environment, Food and Rural Affairs, and the Authority, having been a defendant in the proceedings, now appears as intervener. The respondents' challenge failed before Hamblen J [2009] EWHC 1721 (QB), but succeeded in the Court of Appeal [2010] EWCA Civ 263, [2010] 1 WLR 2117. Before the Supreme Court, they suggest that the second issue should also cover imports from non-EU states and that consideration be given to a further issue under article 110, if articles 28 and 30 do not apply. I will return to these suggestions later in this judgment.

4

Section 14(2) defines the sea fish industry and persons engaged in it:

"… '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)."

5

Section 4(3) to (5) state the bases upon which a levy may be imposed:

"(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; ….

…..

(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."

The second part of section 4(8), referring to the landing of fish or fish products through the Channel Tunnel, was inserted by the Channel Tunnel (Amendment of the Fisheries Act 1981) Order 1994 (SI 1994/1390).

6

Section 2(2A) was inserted by the Fisheries Act 1981 (Amendment) Regulations 1989 (SI 1989/1190) to cater for a concern raised by the European Commission that the effect of the levy might be unduly to burden the sea fish industries of other EU states to the benefit of the United Kingdom's sea fish industry:

"(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 consequence of the levy."

7

The regulations made by the Authority 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 1996/160). They cover imports expressly:

"2. Interpretation

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 transshipped 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; …

4. Imposition of levy

(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 Schedule so purchased or trans-shipped or landed by him.

…..

(6) Where the levy becomes payable in respect of any sea fish it shall not be payable in respect of the products of such sea fish.

5. Time Limits for Payment

(1) Levy payable by a person who purchases any sea fish or sea fish product on a firsthand sale shall be paid to the Authority within seven days after the end of -

(a) the week during which there took place the firsthand sale of the fish or fish product in respect of which the levy is payable; or

(b) the week during which such fish or fish product was imported or brought into the country;

whichever is the later."

8

The Schedule to the Regulations contains rates of levy for sea fish and sea fish products. There are ten different categories of sea fish products, starting with "fresh, frozen or chilled sea fish", under which different rates are set out for "gutted", "headless and gutted", "fillets, skin on" and "fillets, skinless". Consistently with section 4(8) of the Act, parts of a sea fish are treated as sea fish products. Other categories include "smoked sea fish", again with different rates for "headless and gutted", "fillets, skin on" and "fillets, skinless", "salted and cured sea fish", with different rates for wet and dried, "sea fish products sold for fishmeal", "sea fishmeal", "any sea fish product not referred to above" and "any pelagic fish product not referred to above", each with a different rate. The different rates reflect the usable fish content in the various sub-categories.

The meaning of "landed"

9

The first issue is whether the statutory power enables a levy in respect of sea fish or parts of sea fish first brought to land (by the catching or another vessel) outside the United Kingdom and only later imported into the United Kingdom (in the...

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