Oppdrettslaks

"Er det norske oppdrettsregelverket i strid med EØS-avtalen?" spør Dag Sørlie Lund

Er det norske oppdrettsregelverket i strid med EØS-avtalen?

11 May 2012

Fiskeri- og oppdrettsnæringen har opplevd stor vekst i produktiviteten de siste tiårene. En stor del av denne veksten skyldes veksten i oppdrettsnæringen. En av flere mulige årsaker til denne veksten […]

Fiskeri- og oppdrettsnæringen har opplevd stor vekst i produktiviteten de siste tiårene. En stor del av denne veksten skyldes veksten i oppdrettsnæringen. En av flere mulige årsaker til denne veksten kan være Norges økte adgang til det europeiske markedet gjennom tilslutningen til EØS-avtalen i 1994. Det kan derfor synes noe paradoksalt at EFTAs overvåkningsorgan (ESA) og norske myndigheter ved Fiskeri- og kystdepartementet (FKD) i omtrent samme periode har vært uenige om EØS-avtalen kommer til anvendelse på investeringer i fiskeoppdrettsanlegg.

En klage inngitt av Marine Harvest har nå blåst nytt liv i den gamle uenigheten mellom FKD og ESA. Vi vil kommentere denne saken nærmere i denne kronikken.

Regulering av oppdrettsnæringen

Oppdrettslaks

"Er det norske oppdrettsregelverket i strid med EØS-avtalen?" spør Dag Sørlie Lund

Oppdrettsnæringen i Norge er underlagt en rekke regulatoriske begrensninger, både i form av adgang til oppdrettsnæringsmarkedet i form av konsesjonsordningen, og dessuten i form av et tak på hvor stor del av disse konsesjonene et selskap lovlig kan inneha – en eierskapsbegrensning. Slike statlige tiltak er i utgangspunktet regnet som restriksjoner på EØS-avtalens fire friheter, og må derfor oppfylle nærmere bestemte vilkår for å være lovlige.

For i det hele tatt kunne drive med fiskeoppdrett stiller akvakulturloven krav om tillatelse fra fylkeskommunen. Selskaper som innehar slik tillatelse, kan erverve inntil 15 % av den totale konsesjonsbiomassen uten tillatelse fra Fiskeri- og Kystdepartementet. Erverv av inntil 25 % av biomassen kan foretas på nærmere vilkår og etter tillatelse fra departementet. Erverv utover dette er ikke tillatt. Dessuten gjelder det en begrensning på 50 % av den regionale konsesjonsbiomassen.

Det er disse reglene Marine Harvest AS nå har utfordret. Selskapet har i en klage til ESA anført at reglene strider mot EØS-avtalens regler om etableringsfrihet og fri flyt av kapital.

EØS-avtalens anvendelse på oppdrettsnæringen
I EU og EØS skal det være fri adgang til å etablere seg og investere på kryss av landegrensene. Statlige tiltak (lovgivning og forvaltningspraksis) som hindrer slik fri flyt av kapital og etableringsmuligheter er derfor ikke tillatt, med mindre de er begrunnet ut fra lovlige hensyn som offentlige orden, sikkerhet og folkehelsen.

EØS-avtalen har imidlertid visse særordninger for investering og etablering i norsk fiskerinæring. På bakgrunn av disse særreglene er det blant annet tillatt å opprettholde restriksjoner som skriver seg fra tiden forutfor signeringen av avtalen i 1993.

Dette unntaket fra de alminnelige reglene i EØS-avtalen gjelder bare for etablering og investering i fiskefartøyer, og ikke anlegg som ligger på land. Det har vært noe uenighet om i hvilken grad oppdrettsanlegg faller innenfor eller utenfor dette unntaket. Fra stortingsmeldingen som ble skrevet i forbindelse med Norges tiltredelse til EØS-avtalen, fremgår det imidlertid nokså klart at unntaket kun var tiltenkt investeringer i fiskefartøyer i motsetning til Islands reservasjon, som gjaldt for all fiskerirelatert virksomhet. ESA har også inntatt dette standpunktet tidligere i en sak fra 2000. I en betenkning utarbeidet for Europautredning av Torben Foss konkluderes det på samme måten: ”Det var klart at oppdrettsnæringen skulle være helt åpen for investeringer fra andre EØS-land, i motsetning til hva som var tilfellet i fiskeflåten.” Foss var tidligere ekspedisjonssjef i FKD og ansvarlig for departementets deltakelse i forhandlingene om EØS-avtalen.

Marine Harvest argumenterer på denne bakgrunn for at unntaket for fiskerinæringen ikke gjelder for oppdrettsnæringen. Dessuten anfører de at fordi unntaket uansett kun gjelder restriksjoner som fantes på det tidspunktet EØS-avtalen ble underskrevet, gjelder de ikke for eierskapsbegrensningene i akvakulturloven fordi disse er vedtatt etter at Norge tiltrådte avtalen.

Av denne grunn hevdes det at reglene om eierskapsbegrensninger er i strid med EØS-avtalens bestemmelser om etablering og kapital.

Norske myndigheter har argumentert mot dette og anfører at oppdrettsnæringen faller utenfor EØS-avtalens virkeområde grunnet unntaket som finnes for fiskerisektoren. De hevder at utgangspunktet er at fiskerinæringen er unntatt EØS-avtalen. Det blir dessuten argumentert for at når oppdrettsfisk ikke er nevnt noe sted i kapittel 25 til 97 i det harmoniserte system eller i protokoll 3, så gjelder ikke EØS-avtalen ”med mindre annet er særskilt angitt”, slik EØS-avtalen artikkel 8(3) lyder. Norske myndigheter støtter seg i den forbindelse på en avgjørelse fra ESA fra 1994 hvor det gis uttrykk for at EØS-avtalens regler om statsstøtte ikke gjelder for fiskerinæringen, med mindre dette uttrykkelig er regulert i bestemmelsene i avtalens hoveddel.

Norges argumentasjon er et tveegget sverd
Det er ennå ikke fattet noen avgjørelse i saken, men de store motsetningene i synspunkter, kan tyde på at saken blir forelagt EFTA-domstolen.

Tatt i betrakning de signaler ESA tidligere har gitt samt de forutsetninger som lå til grunn for det norske unntaket for fiskerinæringen, kan mye tyde på at det norske konsesjonssystemet strider mot EØS-retten og derfor må endres. Det er imidlertid en mulighet for at ESA eller EFTA-domstolen godkjenner ordningen hvis den kan begrunnes i såkalte tvingende allmenne hensyn.

Som påpekt i betenkningen fra Torben Foss er FKDs standpunkt for det andre paradoksalt med tanke på hva slags dramatiske virkninger dette kan få for norske bedrifters investeringer i andre EØS-land: Dersom Norge skulle få medhold i at EØS-avtalen ikke gjelder for oppdrettsnæringen, vil EU-landene kunne diskriminere og utestenge norske selskaper som ønsker å etablere seg i EU.

Med tanke på at det i stor grad er islandske selskaper som eier havfiskeflåten i det nordlige EU og norske selskaper som eier det meste av oppdrettsnæringen i Skottland og Irland, kan man spørre seg om det virkelig er i norsk næringslivs interesse at FKD har inntatt dette standpunktet overfor ESA.

Dette illustrer den svært store betydningen sakens utfall kan ha for aktørene i oppdrettsnæringen både i Norge og ellers i EU/EØS. I den grad ESA eller EFTA-domstolen kommer til at den norske lovgivningen er i strid med EØS-avtalen, vil dette også kunne danne grunnlag for erstatning for aktører som har lidd tap som følge av dagens konsesjonsordning.

 

Denne artikkelen ble også publisert i Norsk Fiskeoppdrett nr 1, januar 2012.

 

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