Utydelig forvaltningspraksis svekker lønnsomheten i kystrederiene

02 Apr 2013

Fiskeri- og kystministeren bør ta grep for å få en tydeligere og mer enhetlig praksis knyttet til eierskifte, driftstilpasninger og finansiering. Det vil bidra til økt lønnsomhet i næringen.  På […]

Fiskebåt_shutterstock_56184673[1]Fiskeri- og kystministeren bør ta grep for å få en tydeligere og mer enhetlig praksis knyttet til eierskifte, driftstilpasninger og finansiering. Det vil bidra til økt lønnsomhet i næringen. 

På ”Husøydagene” i august satte Fiskeri- og kystministeren opp målsetningen om ”lønnsomhet i alle ledd”, som det viktigste enkelttiltak i regjeringens fiskeripolitikk.

Næringens lønnsomhet avgjøres av en rekke forhold. For fangstleddet, som er blant våre mest gjennomregulerte næringer, er det legale rammeverket i form av lover, forskrifter og instrukser for deltakelse og utøvelse av fisket, av stor betydning for virksomhetens evne til å generere positive økonomiske resultater. Like viktig som innholdet i disse regelsettene er næringens behov for en tydelighet og en forutsigbarhet i forvaltningens praktisering av reglene.

På sentrale områder kjennetegnes dessverre forvaltningens praksis av det motsatte, utydelighet, regionale ulikheter, svak rettslig forankring for avgjørelsene og mangelfull begrunnelse for avgjørelsene. Her har man et betydelig forbedringspotensial, og i motsetning til rammebetingelser som ”marked” og ”priser”, har forvaltningen i prinsippet full kontroll over denne lønnsomhetsbetingelsen.

Rederienes mulighet til å gjøre tilpasninger i driftsgrunnlaget kan ha stor betydning for deres lønnsomhet. Forståelsen av deltakerlovens ”eierbegrep” og kravet til ”faktisk kontroll” ved overdragelse av fiskefartøy, er blant de sentrale rammebetingelsene for rederienes adgang til slik tilpasning. Vi har her flere avgjørelser fra fiskeridirektoratet som innebærer en praksisomlegging, uten at det er avklart verken for næringsaktører eller involverte rådgivere og advokater, hvorledes dette forankres rettslig, om endringen begrenser seg til en tilstramning av enkelt vilkår for å selge fartøy med kvoter eller et signal om at slike driftstilpasninger i seg selv er uønsket. For noen av rederiene, som har forholdt seg til en tidligere praksis, har resultatet ikke begrenset seg til en havarert transaksjon, men også trusler om sanksjoner fra forvaltningen.      

Konsekvensene for rederiene er at man ikke evner – eller våger – å gjøre de tilpasninger i driftsgrunnlaget som både er kommersielt riktige og innenfor de foreliggende kvote- og strukturrammer. Derved mister rederiene og næringen muligheten for til forbedret lønnsomhet.  Denne rettslige usikkerheten har dernest den konsekvens at bare de mest kapitalsterke rederiene evner å gjennomføre et salg innenfor forvaltningens rigide forståelse av loven. Vi vil tro at denne virkningen ikke er tilsiktet.

Et annet område der uklar praksis presser lønnsomhet er finansiering av fiskebåtrederier. Det foreligger nå avgjørelser der erverv er nektet fordi en minoritetsaksjeeier har stilt en garanti ovenfor bank for selskapets gjeld. Dersom forvaltningen skal ha en konsistent praksis på dette området må det innebære at de uttall av tilfeller i næringen der aksjonærene i ulik grad har bidratt med kreditter eller ansvarlige lån til rederiet også rammes av loven. En slik begrensning i eiernes mulighet til å gi ulike bidrag til finansieringen av fiskebåtrederier presser lønnsomheten, særlig for de mest kapitalsvake.

En særlig rettslig utfordring er de regionale forskjellene i praktiseringen av regelverket. Dette illustreres blant annet ved at viktige praksisomlegginger initieres av enkeltvedtak i regionene og ikke i form av overordnede føringer fra departementet eller direktoratet sentralt. Fiskernes behov for snarlige avgjørelser knyttet til sesongmessige fiskerier, gjør at man ikke kan avvente en klagebehandling som fort strekker seg over måneder og man tvinges da til å tilpasse seg en praksis som ikke er tydelig rettslig forankret og slett ikke understøtter målsetningen om lønnsomhet. På denne måten sementeres en uheldig praksis.

Fiskeriministeren har innkalt til dialogmøte med næringen i Oslo den 13. mars. Innspill på innholdet i rammebetingelsene overlater jeg til næringsaktørene. Mitt hovedpoeng er at det også foreligger et potensial til forbedring av lønnsomhet knyttet til hennes eget embetsverk sin praktisering av regelverket. Vi håper hun griper muligheten ved å fremme sin målsetning nedover i egne rekker.  

 

Om forfatteren

Ole-Martin Lund Andreassen
Ole-Martin Lund Andreassen Ole-Martin Lund Andreassen er blant landets mest erfarne fiskeriadvokater. Han har særlig arbeidet med saker knyttet til kjøp/salg, strukturering av fartøy/rederivirksomhet, samt spørsmål knyttet til fiskerettigheter og fiskeriforvaltning.

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