Er norske regler om eierskapsbegrensning i strid med EØS-reglene?

EØS og eierskapsbegrensninger i oppdrettsnæringen

17 Sep 2012

EFTAs overvåkningsorgan (ESA) har nylig konkludert med at eierskapsbegrensningene som gjelder for oppdrettsnæringen er i strid med EØS-avtalen. Frontene er steile og mye tyder på at Norge kommer til å utfordre den oppfatning ESA legger til grunn i sitt åpningsbrev i saken.

Er norske regler om eierskapsbegrensning i strid med EØS-reglene?

EØS-avtalen innebærer at det skal være fri adgang til å etablere seg og investere på kryss av landegrensene innen EØS-området (EU-landene + Island, Liechtenstein og Norge). Statlige tiltak (for eksempel lovgivning og forvaltningspraksis) som hindrer dette er derfor i utgangspunktet ikke tillatt, med mindre de kan begrunnes i lovlige hensyn som for eksempel offentlig orden, sikkerhet og folkehelsen.

For å kunne drive fiskeoppdrett i Norge, krever akvakulturloven at næringsaktøren innvilges lokalitetstillatelse fra fylkeskommunen. Selskaper som innehar en slik tillatelser kan erverve inntil 15 % av den såkalte totale (landsekkende) biomassen uten noen tillatelse fra Fiskeri- og kystdepartementet (FKD). Erverv av inntil 25 % kan foretas på nærmere vilkår og etter tillatelse fra FKD. Erverv utover dette er imidlertid ikke tillatt. I tillegg gjelder det en begrensning på 50 % av den regionale konsesjonsbiomassen. Disse reglene hindrer derfor etablering og investering i oppdrettsnæringen, og er av ESA funnet å være i strid med EØS-avtalen.

ESA er imidlertid klare på at man kan begrense en aktørs eierandeler innen oppdrettsnæringen, og viser blant annet til at den norske konkurranseloven allerede ivaretar slike hensyn. Bedrifter har nemlig en plikt til å melde fra om fusjoner, oppkjøp og avtaler som fører til kontroll i andre selskaper. Det er forbudt å gjennomføre slike før Konkurransetilsynet (KT) har gitt sin godkjennelse. KT har nettopp som sin oppgave å forhindre for store markedskonsentrasjoner. Selv om eierskapsbegrensningene ikke skulle stå seg i en senere sak for EFTA-domstolen, vil man altså ikke risikere noe monopol innen oppdrettsnæringen av den grunn.

Det Norge har anført til forsvar for eierskapsbegrensningene er

  • Sikre en variert eierskapsstruktur i oppdrettsbransjen,
  • Fremme konkurransen i markedet og fortjenesten i bransjen,
  • Fremme bærekraftig og levedyktig bosetting langs kysten, og
  • Sikre en rettferdig fordeling av utbytte fra oppdrettsvirksomhet.

Norge må nå vurdere om man skal utfordre ESAs syn. Saken kan da få sin endelige avklaring i EFTA-domstolen. Signalene fra FKD tyder på at dette er veien Norge vil gå, selv om en nylig avsagt dom om eierskapsbegrensninger i børsloven der Norge tapte, kan gi en viss indikasjon på hvordan utfallet i så fall vil bli.

 

Om forfatteren

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