Decision on refund of fee related to transit of wild marine resources
Wiersholm recently represented several foreign shipping companies demanding a refund of the team fee imposed on the catch of shrimp and cod in the Barents Sea, which was landed via an agent in Norway before being transported further to countries outside the EU.
The further transport of catch “brought ashore from vessels sailing the flag of a member state of the European Union or the United Kingdom” was initially exempt from the obligation to pay the team fee, cf. the Fish Sales Act § 8 and the transit regulation of April 21, 2006 no. 433 § 1.
The Norwegian Raw Fish Association interpreted an additional requirement, which did not appear from the wording of the law or regulation, that the fish had to be transported to a country that is an EU member or to the United Kingdom. The shipping companies disputed that there was such an additional requirement and referred to the importance of the principle of legality.
In recent years, the authorities have almost adopted a schizophrenic interpretation of the transit regulation:
- The additional requirement was first claimed to apply in the transit regulation in a letter of October 18, 2017 from the Directorate of Fisheries to the Norwegian Raw Fish Association
- In a letter of November 11, 2021, the Ministry of Trade and Fisheries (NFD) assumed that no condition could be set about the destination precisely because such a condition cannot be derived from the regulation
- On May 10, 2023, the department turned around, and the department now claims that conditions about the destination could still be set
- On December 19, 2023, the department turned around again and assumed that the regulation did not authorize any such additional condition
The NFD thus fully accepted the complaint and stated that there is not sufficient legal basis for imposing a fee on catches that are transported to a country other than an EU country or the United Kingdom when the other conditions in the transit regulation are met. The case was decided on the principle of legality:
“The principle of legality is one of the cornerstones of the Norwegian legal system. In addition to the component that interventions against the individual must have a legal basis, there are two more components in the principle. The principle of legality limits the possibility of expansive interpretation and analogical application of a legal rule, and a requirement that the current law should be accessible and sufficiently precise so that the individual can understand the duties and rights that apply to him. […]
After a specific weighting of the various elements, the department in this case comes to the conclusion that the components of the principle of legality about the limitation for expansive interpretation and the requirement for the legal rule’s accessibility and precision weigh the heaviest.
The complainant’s arguments are accepted.
The decision of May 11, 2023 is reversed, and the department asks the Raw Fish Association to make a new decision in the case.”
The case concerns the refund of the fee imposed on catches in the period 2016 to November 2021, as well as any fee imposed after May 2023 until August 2023.
Based on the decision, other shipping companies in a similar situation should also consider submitting a request for reversal and refund.
It should be noted that the NFD, effective from 3 September 2023, has changed the regulation, and it now follows from the transit regulation a destination requirement where the catch must be landed in the EU or the United Kingdom.
- fiskesalgslagsloven
- transittforskriften av 21. april 2006 nr. 433 om transitt av fisk fanget av og brakt i land fra britiske eller EU-fartøy (fremt til august 2023)
- videretransportforskriften 3. september 2023
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