Structural fish quotas with no time limitation are contrary to the prohibition against retroactive force in the Constitution
Supreme Court judgment of 23 October 2013, HR-2013-02200-P (case no. 2012/1548), civil case, appeal against judgment
The sate repr. by the Mininstry of Fisheries and Coastal Affairs (Counsel Ida Hjort Kraby) v. Volstad AS (Counsel Stein Owe)
Justices: Tønder, Normann, Skoghøy, Tjomsland, Matningsdal, Stabel, Endresen, Indreberg, Webster, Noer, Bull, Bårdsen, Falkanger, Øie, Matheson, Kallerud, Gjølstad
The Regulation relating to structural quotas for the deep-sea fishing fleet, as it originally read after its entry into force in 2005, contained no limit as to the number of years during which a vessel could be allocated such quotas. In 2007, the Regulation was amended so that a time limit for the quotas was introduced. The Supreme Court majority of nine justices concluded that the amendment of the rule did not imply any retroactive effect in conflict with Article 97 of the Constitution. The majority took for their starting point that this was a question of an infringement of an established legal position and that the norm for constitutional protection was accordingly whether the retroactive effect would be particularly unreasonable or unfair.
In the assessment of reasonableness the point of departure was that the owner of a vessel that had been allocated a structural quota without any time limit based on the 2005 Regulation, and where the timeframe had now been limited to 25 years, could, objectively speaking, have strong expectations of retaining the quota without any time limit. On the other hand, importance was attached to the fact that the financial loss resulting from the time limit would not be very significant in view of the tax depreciation rules. The majority also considered it important that the shipping company would obtain advantages as a result of other elements of the established structuring regime, that the brunt of the effect would occur at some point well into the future and that the state should have considerable freedom to act when it comes to regulating the content of the fishing fleet’s framework conditions. The amendment to the regulation accordingly did not represent any particularly or clearly unreasonable or unfair infringement vis-à-vis the shipping company. Nor was the amendment in contravention of Article 1 of the 1st Protocol to the ECHR.
The majority found that it was the control rule in paragraph 2 of the Article that was applicable and that the infringement satisfied the proportionality requirement in this provision. A minority of five justices held that the amendment to the regulation was in contravention of the prohibition against retroactive effect in Article 97 of the Constitution. Another minority of three justices endorsed this position and furthermore held that the infringement was also in violation of Article 1 of the 1st Protocol to the ECHR.