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Ny Råfisklov – alt ved det gamle?

13 Aug 2013

Natten mellom 10. og 11. juni debatterte og vedtok Stortinget den nye fiskesalslagslova som skal erstatte råfiskloven.  Det kan synes som om den viktigste endringen er navneendringen – hovedprinsippene i […]

Natten mellom 10. og 11. juni debatterte og vedtok Stortinget den nye fiskesalslagslova som skal erstatte råfiskloven.  Det kan synes som om den viktigste endringen er navneendringen – hovedprinsippene i den gamle loven er beholdt. Og i hovedsak har det skjedd uten politisk uenighet.

Det er kanskje det mest oppsiktsvekkende ved denne lovbehandlingen at det er så stor politisk enighet om lovens hovedprinsipp om salgslagenes suverene rett til å bestemme priser og salgsvilkår ved førstehånds omsetning av fisk. Denne eneretten utfordrer hensynet til en fri konkurranse, et hensyn som i dag står sterkt. Gjennom konkurranselovgivningen har vi fått vedtatt omfattende reguleringer for å hindre at sterke aktører får utnytte sin markedsmakt. Det er ikke enkelt å forene konkurranselovgivningens hovedprinsipper og salgslagenes rettigheter i fiskesalgslagsloven. Når disse rettighetene opprettholdes i en ny lov uten særlig uenighet i Stortinget viser det at fiskesalgslagene har en meget sterk politisk posisjon.

I hovedsak beholder fiskesalgslagene gjennom den nye loven adgang til å bestemme minstepriser og andre salgsvilkår for førstehåndsomsetningen av fangst som er fanget på havet. Lovens § 10 omhandler retten til å gi salgsvilkår og bestemme omsetningsformer. Bestemmelsen fastslår en plikt til å legge frem endringer i regelverket for de berørte parter slik at de får uttale sin mening, men det er salgslaget som avgjør. Og i § 10 tredje ledd fastslår loven klart hvilken betydning bestemmelsene har:

”Kjøpar og seljar er bundne av dei fastsette salsvilkåra og omsetningsformene.”

Når det gjelder reglene om minstepris er det i lovens §§ 11 og 12 gitt regler om fastsettelsen av disse. Utgangspunktet er her at det skal være forhandlinger mellom partene, og at den pris man forhandler seg frem til skal legges til grunn. Er man uenig skal det mekles.  Dersom verken forhandlinger eller mekling fører frem er det imidlertid i lovens § 12 andre ledd slått fast at det er salgslaget som avgjør.

Et svært interessant juridiske spørsmål er hvilket grunnlag en kjøper eller selger av fisk underlagt salgslagenes regelverk kan ha for å angripe regler som han mener slår urimelig ut.

I en sak om omsetning av brisling gir Høyesterett treffende uttrykk for et generelt utgangspunkt i en dom fra 1962 (Rt. 1962 s. 854):

”I likhet med lagmannsretten antar jeg at det forhold at Salgslaget etter gjeldende bestemmelser har eneretten til å omsette brisling og slik alene kan disponere over anmeldt fangst, må føre med seg at laget har et meget strengt ansvar for at det varetar fiskernes interesser på beste måte og med størst mulig aktsomhet.”

Denne meget strenge forpliktelsen til å ivareta partenes interesser må etter min oppfatning gjelde på alle områder der salgslagene har eneretter, og i forhold til alle aktører som påvirkes av enerettene.

En konsekvens av dette er at salgslagene må følge utviklingen i næringene og endre minstepriser, salgsvilkår og omsetningsformer dersom disse får uheldige utslag i markedet, for eksempel ved at en av partene i avtaleforholdet får en urimelig sterk posisjon eller fordi det oppstår situasjoner der regelverket medfører at enkelte aktører kommer uheldig ut. Eksempler kan være at enkelte fiskere får dårligere betalt for råstoffet sammenliknet med andre eller at enkelte mottaksanlegg må betale mer for råstoffet enn sine konkurrenter.

Man kan selvsagt ikke kreve at salgslagene følger med i alt som skjer, og at regelverket til enhver tid hindrer urimeligheter. Men dersom salgslaget får beskjed om slike uheldige konsekvenser av sitt eget regelverk har de både plikt til å undersøke saken og gjøre nødvendige endringer for å rette opp i urimeligheter. Og dersom urimeligheten er klar, og salgslaget samtidig viker tilbake for å gjennomføre endringer uten god saklig grunn, kan det være aktuelt med erstatningskrav for den som rammes av urimeligheten.

Dette er den rettslige konsekvens av at fiskesalgslagsloven ikke bare gir salgslagene makt, den gir dem samtidig ansvar for å utøve sin makt på en rettferdig måte.

Den nye fiskesalslagsloven innebærer som nevnt først og fremst en modernisering av råfiskloven. Loven har blitt betydelig mer ordrik og en del spørsmål som man tidligere måtte slutte seg til er nå fastslått i lovteksten.

Det er for eksempel gitt langt mer omfattende regler om fiskesalgslagene og deres godkjenning, og det er også en egen bestemmelse om permanent eller tidsbegrenset inndragelse av et salgslags godkjenning.

Det er også verd å merke seg at strafferammen ved brudd på loven er økt betydelig. Tidligere var den maksimale straffen 2 år, mens den nå blir 6 år. Den nye loven er også uvanlig ordrik i sin beskrivelse av hva som skal tillegges betydning ved vurdering av straffeutmålingen.

I tillegg er den nye fiskesalgslagslova skrevet på godt nynorsk noe som gjør at lovteksten er enklere og mer praktisk skrevet enn de fleste lovtekster på bokmål.

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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