Et provoserende lovforslag

26 Nov 2012

Etter å ha gjennomgått Fiskeridepartementets høringsutkast til endringer i akvakulturloven er min uærbødige konklusjon at dette fremstår som et ensidig lovforslag der departementets hovedmål synes å ha vært å sørge […]

Etter å ha gjennomgått Fiskeridepartementets høringsutkast til endringer i akvakulturloven er min uærbødige konklusjon at dette fremstår som et ensidig lovforslag der departementets hovedmål synes å ha vært å sørge for økte overføringer fra oppdrettsnæringen til staten. Særlig er argumentasjonen knyttet til sanksjonsbruk en oppsiktsvekkende målrettet og ensrettet argumentasjon for høye gebyrer.

Det er i utgangspunktet positivt at departementet introduserer et klarere skille mellom inndraging av utbytte og gebyr og bøter som rene straffereaksjoner. At oppdretteren må tåle inndraging av utbytte oppnådd gjennom lovbrudd er i prinsippet lite provoserende. De praktiske spørsmål i slike saker vil  dreie seg om bevis og om det som kreves inndratt er det reelle utbyttet eller et beløp som er langt høyere.

Når det gjelder de rene økonomiske straffereaksjonene er det etter min oppfatning viktig at disse er riktig satt. De skal være høye nok til å ha en preventiv effekt, men man må også ta hensyn til at for høye reaksjoner får negative virkninger. Det er en svakhet ved høringsnotatet at dette ikke drøfter hva som er en riktig reaksjon. Det er et spørsmål som bør utredes før sakens sendes til Stortinget. Det vil være viktig å få lovgivers vurdering av hva som er en rimelig reaksjon ved overtredelser av akvakulturloven.

I praksis gis økonomiske sanksjoner i oppdrettsnæringen særlig i rømmingstilfeller og i andre liknende enkeltsituasjoner. I de aller fleste tilfeller dreier det seg om menneskelige feil utført av ansatte i næringen.

Det er tre grunner til at det bør være grenser for hvor hardt man straffer slike regelbrudd.

For det første har høy økonomisk straff for slike regelbrudd liten preventiv effekt – om noen. Oppdretterne har uansett en sterk motivasjon for å unngå rømming som påfører oppdretterne store tap. I tillegg frykter oppdretterne å bli stemplet som lovbrytere eller useriøse aktører gjennom en offentlig reaksjon. I disse to forholdene ligger tilstrekkelig motivasjon til å prøve å unngå rømming.  At man i tillegg ilegges en kraftig økonomisk reaksjon har neppe noen preventiv tilleggseffekt, og det er heller ikke søkt underbygget av departementet i høringsnotatet.

For det andre har kraftige økonomiske reaksjoner en betydelig negativ effekt for den eller de ansatte som har opptrådt uaktsomt. Det er menneskelig å feile og ingen kan kreve at arbeidstakere er ufeilbarlige. Det vil imidlertid være en stor belastning både personlig og i et arbeidsmiljø å være syndebukk for en kraftig økonomisk reaksjon som ens arbeidsgiver har fått.

For det tredje vil den økonomiske sanksjonen ofte ha uønskede skadevirkninger for den oppdrettsbedriften som rammes.  Bedriftens økonomi vil svekkes og konsekvensene av dette vil variere sterkt avhengig av bedriftens økonomi på det tidspunkt boten skal betales. Rammer boten på et uheldig tidspunkt kan konsekvensene bli tap av arbeidsplasser eller på ulike måter tap for leverandører og andre utenforstående som selvsagt ikke har noe med lovbruddet å gjøre. Jo høyere reaksjonsnivå man har jo større er risikoen for at lovbruddet får slike uønskede konsekvenser.

Jeg mener derfor at man ikke bør bruke for kraftige økonomiske reaksjoner i tilfeller der man ikke kan forvente at størrelsen på reaksjonen i seg selv har allmenpreventiv effekt. For rømming som skyldes menneskelig svikt hos ansatt personell er en riktig reaksjon et gebyr på kr. 100.000,- og ikke et gebyr på flere millioner.

Når jeg mener departementets høringsnotat er provoserende er det fordi departementet velger å gi en ensidig og teoretisk fremstilling der det kun presenteres argumenter for å reagere meget kraftig.  Departementet forsøker åpenbart å legitimere at oppdrettere som bryter regelverket skal måtte betale så det svir til staten. Spørsmålet er om departementet er tilstrekkelig opptatt av å lage det regelverket som er best for utviklingen av norsk fiskeoppdrett.

 

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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