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20 Dec 2013

Som ventet har Fiskeri- og kystdepartementet skåret gjennom og kommet frem til at det ikke er grunnlag for å avvise noen av de 28 søknadene om grønne konsesjoner som i […]

Som ventet har Fiskeri- og kystdepartementet skåret gjennom og kommet frem til at det ikke er grunnlag for å avvise noen av de 28 søknadene om grønne konsesjoner som i første instans ble avvist av formelle grunner som feil signatur eller mangelfull kvittering for betalt søknadsgebyr. For Faggruppa – som behandler disse søknadene i første instans – vil dette forhåpentlig ikke oppleves som prestisjenederlag eller blåmandag. I alle fall vil departementets avgjørelse bli hilst med glede i store deler av oppdrettsnæringen. Først og fremst er avgjørelsen en klar seier for alle som ønsker en bredest mulig konkurranse for å få frem de miljømessig og teknologisk beste løsningene for å sikre en bærekraftig vekst i havbruksnæringen.

Departementet har latt lovens og forskriftens formål gå foran en uklar forskriftstekst.  Departementet har til gangs holdt sitt løfte om å gi behandlingen av klagene høy prioritet. Det gikk 14 dager fra de fikk klagene oversendt til avgjørelsene ble fattet. I mellomtiden har departementet sørget for at Regjeringsadvokaten har vurdert saken, og dessuten innhentet en ekstern juridisk vurdering.

Det er første pulje med klager departementet nå har avgjort. Det gjelder 28 saker i den såkalte gruppe B, hvor tildelingene av grønne konsesjoner skal gå til høystbydende etter prekvalifisering. Men også de fleste av de andre avvisningene fra Faggruppa vil nå måtte omgjøres. De er avvist på stort sett samme grunnlag. Det gjelder søknadene om de 20 tillatelsene til Troms og Finnmark (gruppe A), og de 10 som er øremerket for miljøteknologiske foregangsprosjekter, de ”særlig grønne” (gruppe C). Faggruppa har avvist i alt 118 av 255 søknader på grunn av formelle feil.

Mange av avvisningene gjaldt manglende dokumentasjon av kvittering av innbetalt søknadsgebyr, jf tildelingsforskriftens § 5 tredje ledd, jf første ledd bokstav d. Gebyret er på kr. 12.000 per søknad. Selv om pengene var innbetalt før fristens utløp, viste det seg at mange av kvitteringene ikke hadde tilstrekkelig verifisering av at pengene faktisk var overført til Fiskeridirektoratets konto. Fagnemnda mente at det ikke kunne forventes at nemnda eller dets sekretariat (direktoratet) skulle sjekke om pengene var innbetalt, og at et slikt krav ville gå på bekostning av ”en effektiv gjennomføring av tildelingsrunden”.  Utenforstående har stilt seg undrende til at det skulle være særlig krevende å sjekke egen bankkonto for innbetalte gebyr. De fleste har antatt at et myndighetsorgan i alle fall måtte foreta en slik undersøkelse for å sikre seg at pengene faktisk var kommet inn på konto.

Departementet konstaterer nå at ”tildelingsforskriften ikke er klar nok til å hjemle et avslag på grunn av utilstrekkelig dokumentasjon for innbetalt søknadsgebyr”. Departementet mener tildelingsforskriften heller ikke stiller opp en plikt til å avvise søknader som har feil signatur. Dermed omgjør altså departementet alle avvisninger som har skjedd på dette grunnlaget.

Klagene i gruppe A og C er nå også oversendt departementet til behandling. Departementet tar sikte på å behandle disse i løpet av januar. Men etter som alle klagerne i gruppe B har fått medhold i departementet, kan trolig de aller fleste oppdretterne som har sendt inn klager i de to andre gruppene gå julen i møte med ro i sinnet. I hvert fall når det gjelder muligheten for å delta videre i tildelingsprosessen.

Om forfatteren

Harald Ellefsen
Harald Ellefsen Harald Ellefsens kompetanseområder er særlig knyttet til strategisk rådgivning, prosjekt- og forretningsutvikling, myndighetskontakt og offentlig forvaltning. Han har gjennom mange år som advokat drevet et omfattende arbeid for havbruksnæringen overfor offentlige myndigheter både på politisk og administrativt nivå, også med forvaltningsmessige problemstillinger og saker overfor fiskeriforvaltningen. Ellefsen sitter i styret i Kverva AS – et av Nordens ledende investeringsselskap innen marin sektor.

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