Sanksjonsbruk i akvakulturnæingen

30 Apr 2012

Fiskeriministeren meldte 17. november 2011 at det er nedsatt en arbeidsgruppe som skal vurdere sanksjonsreglene i akvakulturloven.  Denne kommentaren er ment som et innspill til denne arbeidsgruppen og til den […]

Fiskeriministeren meldte 17. november 2011 at det er nedsatt en arbeidsgruppe som skal vurdere sanksjonsreglene i akvakulturloven.  Denne kommentaren er ment som et innspill til denne arbeidsgruppen og til den debatt deres arbeid forhåpentligvis vil utløse. Vi trenger nemlig en bred debatt om sanksjonsbruken – ikke minst om bruken av sanksjoner virker og om skadevirkningene ved sanksjonsbruken er større enn dens positive effekt.

Etter min mening bør for det første stilles spørsmål ved om sanksjonene har en positiv effekt i den forstand at oppdretterne velger å la være å bryte regler fordi regelbruddet kan føre til streng straff. Den allmennpreventive effekt av økonomiske sanksjoner – altså den avskrekkende effekt den har for oppdrettsnæringen generelt – er svært vanskelig å måle. For mange regler vil det antakelig være slik at viljen og evnen til å følge reglene er den samme uansett om man risikerer en økonomisk sanksjon eller ikke.

 

 

Et godt eksempel er lakserømming.  Det er et problem der særlig miljøbevegelsen og påtalemyndighetene understreker betydning av strenge økonomiske sanksjoner. Der er imidlertid ikke noe saklig grunnlag for å hevde at oppdrettere slurver med rømningssikringen ved anleggene fordi det er lite å tape ved rømming eller fordi straffereaksjonene er så beskjedne at det lønner seg å slurve.  Det er tvert i mot grunn til å tro at de fleste oppdrettere oppfatter det som så vesentlig å unngå rømming at de vil gjøre sitt ytterste for å forebygge dette. En rømming innebærer jo direkte økonomisk tap for oppdretteren. Samtidig er det en stor belastning for de ansatte i oppdrettsselskapet å håndtere en rømmingssituasjon, og det er en omdømmemessig belastning for oppdretteren. Motivasjonen for å unngå rømming er altså stor, og det er derfor lite sannsynlig at frykten for sanksjoner har noen betydning for oppdretternes vilje til å sikre anleggene mot rømming.

På den annen side mener jeg det er grunn til å understreke skadevirkningene av strenge økonomiske reaksjoner.   En streng økonomisk reaksjon vil være til liten skade dersom det rammer en oppdretter med stort overskudd. Det er imidlertid tilfeldig om dette er den økonomiske situasjonen hos den oppdretteren som straffes. Dersom økonomien ikke er så god kan boten eller straffegebyret medføre at en ellers levedyktig bedrift får økonomiske problemer eller må utsette ønskelige investeringer. Samfunnsmessig vil slike effekter være negative, og risikoen for at man utløser slike virkninger vil øke med reaksjonsnivået.  Det er derfor viktig at man ikke skrur opp det økonomiske der det ikke har noen sannsynlig positiv effekt i forhold til de lovbrudd man vil unngå.

Det må imidlertid stilles spørsmål ved om en slik tilnærming vil være den viktigste for arbeidsgruppen som nå er nedsatt.  Gruppen består av fire tjenestemenn i statsforvaltningen, en statsadvokat, en universitetsstipendiat og en representant for Råfiskelaget. Det er vel liten grunn til å tro at en slik arbeidsgruppe vil konkludere med at sanksjonsnivået er for høyt eller at det ikke er egnet til å nå sine mål.

Om forfatteren

Halfdan Mellbye
Halfdan Mellbye Halfdan Mellbye har i 25 år arbeidet med ulike juridiske problemstillinger innenfor fiskeri- og havbruksnæringen. Han har blant annet arbeidet svært mye med næringsreguleringsspørmål og han har i tillegg særlig gode kunnskaper om de biologiske og miljømessige utfordringene for næringsutøverne. Han har i en årrekke vært faglig ansvarlig for faget Havbruksjus ved Universitetet i Bergen. Han har nylig utgitt boken "Rettslig regulering av norsk akvakultur" som er utgitt på Universitetsforlaget 2018. Halfdan har møterett for Høyesterett.

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