Fiskeridirektoratet kan mangle grunnlag for å avvise søknader om ”grønne konsesjoner”

04 Nov 2013

I juni 2013 utlyste Fiskeridirektoratet ut 45 såkalte ”grønne konsesjoner”, akvakulturtillatelser på spesielle miljørettede vilkår. Frist for å søke på konsesjonene ble satt til 1. oktober 2013. Det kom inn […]

I juni 2013 utlyste Fiskeridirektoratet ut 45 såkalte ”grønne konsesjoner”, akvakulturtillatelser på spesielle miljørettede vilkår. Frist for å søke på konsesjonene ble satt til 1. oktober 2013.

Det kom inn hele 225 søknader fordelt på tre ulike grupper av konsesjoner, men den 30. oktober publiserte Fiskeridirektoratet på sine nettsider at 118 av de 225 sakene ikke vil bli behandlet fordi de formelle kravene til søknadene ikke var oppfylt. De fleste søknadene ble avvist på grunn av manglende dokumentasjon på innbetalt søknadsgebyr, noen på grunn av utilstrekkelig dokumentert betalingsevne, mens atter andre ble avvist fordi søknadene angivelig var signert av en person som ikke hadde fullmakt til å signere på vegne av virksomheten. Det er denne siste gruppen vi vil omtale nærmere i dette blogginnlegget. 

Vi kjenner selvsagt ikke de konkrete omstendigheter i alle enkeltsakene, men en gjennomgang av utlysningsgrunnlaget holdt opp mot alminnelige aksjerettslige regler gir oss grunnlag for å hevde at direktoratet her har stilt krav til dokumentasjon som ikke kan utledes i utlysningsgrunnlag. Det ser også ut til at ”Faggruppa for tildeling av grøne løyver”, som har avvist søknadene, har vurdert de alminnelige aksjerettslige regler omkring beslutningskompetanse og hvem som kan representere selskapene utad feil. Videre har de overtrådt plikten til å forhåndsvarsle søkeren om et mulig avvisningsvedtak. Dette betyr trolig at det for flere av søknadene er besluttet avvisning på et sviktende rettlig grunnlag. 

Hjemmelen for å avvise søknader er forskriftens § 5 tredje ledd annet punktum som lyder:

”Søknader som ikkje inneheld opplysningar som nemnt i bokstav a og c-e blir avviste.”

Ingen av de nevnte bokstaver gjelder signatur av søknaden. Den presise angivelsen av avvisningsgrunner tilsier at det er en uttømmende regel – det vil si at forskriftsgiver har opplistet alle mulige avvisningsgrunner, og at ”Faggruppa for tildeling av grøne løyve” ikke av eget tiltak kan oppstille andre avvisningsgrunner.

Videre taler uklarhetene i de øvrige utlysningsdokumentene for at søkerne må kunne forholde seg til forskriftsteksten.

Om utlysningen av løyvet står det i forskriftens § 4 bokstav d at Fiskeridirektoratet kan stille krav til søknaden.

I utlysningsteksten fra direktoratet sto det:

”Søknaden skal signerast av den eller dei som har fullmakt til å binde søkjaren etter det som er registrert i enhetsregisteret.”

I følge utlysningsteksten skulle bare den eller de som etter opplysningene registrert i Enhetsregisteret kan binde selskapet, kunne signere søknaden.

Av teksten i selve søknadsskjemaet, fremgår det imidlertid at et slikt strengere vilkår om hvem som kunne representere selskapet, likevel ikke er tiltenkt. På søknadsskjemaet sto det:

“Signatur frå nokon som har fullmakt til å binda søkjaren.”

Dette viser at forskriften ikke gir rettslig grunnlag for å avvise søknadene fordi fullmakt til å binde selskapet ikke er lagt ved søknaden.

Når det gjelder hvem som har fullmakt til å binde aksjeselskaper (og det er vel nærmest uten unntak slik søkerne er organisert), vil kretsen av de som kan binde selskapet omfatte både de som etter vedtekter og meldinger til Enhetsregistret har en alminnelig rett til ”å tegne selskapet” og de som eventuelt er gitt en særskilt fullmakt av styret, jfr. aksjelovens §§ 6-30 og 6-31. I tillegg kan daglig leder i kraft av sin stilling ha fullmakt til å foreta slike disposisjoner. Det må imidlertid vurderes konkret i hvert tilfelle.  

Det er vanskelig å forstå hva som skulle være begrunnelsen for å begrense den alminnelige krets av de som kunne opptre på vegen av selskapet, og valgte man en slik løsning måtte dette uttrykkes klart og gjennomgående i utlysningsmaterialet. Når så ikke er tilfelle taler det med tyngde for at de alminnelige regler må legges til grunn. De som er legitimert til å representere selskapet utad, må i alle tilfelle ha en beslutning om søknad fra et kompetent organ i selskapet, noe som i alminnelighet vil være et styrevedtak. Der styret beslutter å søke vil det være hensiktsmessig at styret også bemyndiger en daglig leder til å effektuere søknaden og vedkommende vil da ha en fullmakt til å binde søkeren i så måte.

Siden mange søknader er blitt avvist på grunn av formfeil knyttet til signatur, kan det tyde på at fullmakt til å signere på vegne av selskapet ikke har vært sendt inn sammen med søknadene. I utlysningsgrunnlaget (forskriften, merknadene til forskriften eller i søknadsskjemaet) oppstilles det derimot ingen plikt til å dokumentere et slikt særskilt fullmaktsforhold og derved kan ikke manglende dokumentasjon utgjøre et grunnlag for avvisning. Som vist gir forskriften heller ikke grunnlag for å oppstille et slikt krav, jfr. § 5, tredje ledd annet punktum. I etterkant må det være tilstrekkelig at kompetent organ i selskapet, bekrefter at slik fullmakt forelå på søknadstidspunktet.      

Avvisningsvedtakene kan imidlertid påklages innen tre uker, jf. fvl. §§ 28 og 29. Dersom søknaden i utgangspunktet ble sendt inn i tide, og det forelå gyldig fullmakt fra styret til den som signerte søknaden, er det vår mening at avvisningen bør påklages og fullmakten vedlegges klagen.

Av forskriftens § 4 bokstav c følger:

”at det ikkje er mogleg å endre søknaden eller komme med tilleggsopplysningar etter at søknadsfristen er gått ut”

Det følger av merknadene til § 4 at denne regelen er inntatt på grunn av den særlige karakteren som tildelingsrunden har – det er en konkurranse om å ha den beste mulige løsningen. Etter vår mening kan dokumentasjon på at den som signerte hadde gyldig fullmakt til å binde selskapet, ikke anses som endring eller tilleggsopplysninger da det ikke rokker ved innholdet i søknaden. Følgelig bør ikke endringsforbudet være til hinder for at klager gis medhold slik at søknaden kan behandles.

Det foreligger i tillegg brudd på den alminnelige plikt til å forhåndsvarsle søkeren der direktoratet mener det kan foreligge grunnlag for slik avvisning.

Kontakt:

Ole-Martin Lund Andreassen, dr. juris/partner
oma@sands.no
Tlf.: 480 16 513

Lisa Mattea Elvevold, advokatfullmektig
lme@sands.no
Tlf.: 930 99 913

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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