The European Maritime Safety Agency (EMSA) Continues to Deploy Drones to Monitor Emissions from Merchant Ships in EU Waters in 2022

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According to the Roadmap of the European Maritime Safety Agency (EMSA), in 2022, which is now beginning, the development of the capabilities of remotely piloted aircraft, commonly known as drones (Remotely Piloted Aircraft Systems or RPAS), will continue, especially regarding the detection of possible pollutant emissions from merchant ships exceeding the limits established in Annex VI of the International Convention on Marine Pollution (MARPOL). Sulphur content limit for marine fuels is currently set at 0.5 % by mass.

By 2022, these drones are also expected to be able to monitor the NOx content of smoke from ships underway, in addition to the SOx mentioned above.

In fact, during 2021, emission control campaigns were already carried out with drones in the waters of the Strait of Gibraltar, Lithuania, France, and the Baltic Sea. Specifically, in relation to the deployment of the drone in the waters of the Strait of Gibraltar between July and October, EMSA, together with the Directorate General of the Merchant Navy and Harbor Master of Algeciras, carried out a total of 319 controls on different merchant vessels while they were sailing through the Strait, detecting possible non-compliance in twenty-eight (28) of the vessels.

Although the readings obtained using these novel aerial means may be indicative of excess sulphur marine fuel consumption, they do not directly result in the initiation of a sanctioning proceeding or in the imposition of a penalty for the monitored vessel.  In order to corroborate the preliminary drone readings, a detailed Port State Control (PSC) inspection will always be required upon arrival of the ship in port, together with the corresponding sampling of the fuels used during the voyage.

After this inspection and chemical analysis of the fuel samples obtained, if the sulphur reading is above 0.5 % by mass, the corresponding Harbor Master’s Office will initiate an administrative sanctioning proceeding against the “ISM Manager” and against the master of the inspected vessel, and the vessel will be provisionally detained until sufficient guarantees have been provided at the discretion of the responsible Harbor Master’s Office.

The data obtained from the drone measurements are also communicated to the THETIS-EU database, also managed by EMSA. The purpose of this is to effectively monitor the non-compliance detected and to establish a system of alerts for the different maritime administrations of the Member States of the European Union, facilitating thus the taking of appropriate measures to prevent and/or sanction the aforementioned typified conducts.

P&I Clubs, a Key Player in Maritime Transport and Trade

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Canal Marítimo y Logístico, a magazine specialised in maritime and logistics information, publishes in its November issue an article on P&I Clubs written by Verónica Meana, partner of our Madrid office.

This article finds its origins in the publication of the Preliminary Bill to amend the revised text of the Law on State Ports and the Merchant Marine, and the Law on Maritime Navigation, which, among other things, includes the reform of article 465 of the latter set of regulation due to doubts that exist nowadays about the admissibility of direct action against protection and compensation clubs. It is worth taking a step back and going to the origin of these organisations and how they work.

The reform adapts to the purpose of these associations which remain fundamental to the development of maritime transport and trade as they currently insure the civil liabilities of shipowners from all parts of the world.

In itself, the article covers the basic concepts, background, established responsibilities, as well as Spanish legislation related to this key piece of maritime transport and trade.

Read article published HERE

El Canal Marítimo y Logístico Highlights the Trajectory of AIYON Abogados since its Foundation

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The journal El Canal Marítimo y Logístico analyses and highlights the trajectory of our firm since its foundation in 2015 and catalogues it as a model of success that continues to develop and grow.

The article confirms that, since the firm was founded more than six years ago, AIYON Abogados has formed a multidisciplinary, solid, and participative team of professionals, with marked quality standards in its services, and always respecting its concept of “boutique law firm” firmly connected with its clients and the sector.

From its basic nature with regard to maritime law, our firm aims to further reinforce the relationship with our international clients (maritime insurers, shipping companies and freight forwarders) on the basis of specialised training. This is one of the areas in which    we are involved as part of our activity, collaborating as regular lecturers in the Master of the Spanish Maritime Institute (Madrid), giving training talks at the University of Cadiz, maintaining collaborations with the universities of Deusto and La Laguna, as well as acting as members of the Court of Arbitration of the Madrid Bar Association. This is a commitment to the new generations, but also to clients, who expect andobtain personalised professional advice.

Likewise, the publication makes special mention of the website on the lifting of the ship arrest that the firm launched in 2021, which can be consulted at: shiparrestrelease.com.

On the other hand, the AIYON team informs that we continue to be clearly committed to handling matters related to land transport, especially in the area of national and international road transport, and the world of insurance and trade, where we have great professionals advising our clients on a daily basis and accompanying them on theirprofessional journey.

Finally, our firm’s clear vocation to deepen its knowledge of Air Law – air chartering, incidents, claims or purchase and sale of aircraft, among others – and Space Law is reflected in the “Postgraduate Specialist Course in Aeronautical and Space Law”, taught by the Faculty of Law (ICADE) in collaboration with the Spanish Association of Aeronauticaland Space Law (AEDAE).

You can read the article at the following link: https://www.diarioelcanal.com/aiyon-abogados-socio-fiable-prioriza-relacion-estrecha-cliente/

AIYON Abogados strengthens its position in Aeronautical and Space Law

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AIYON Abogados maintains its commitment to becoming a benchmark law firm in Aeronautical and Space Law. Its position in these areas is reinforced by the new qualification obtained by Zuberoa Elorriaga, partner of Aiyon’s Bilbao office. Her graduation was held last October 25, becoming the first class of the “Postgraduate Course of Specialist in Aeronautical and Space Law” offered by the Faculty of Law of the Universidad Pontificia Comillas (ICADE), in collaboration with the Spanish Association of Aeronautical and Space Law (AEDAE).

These two prestigious entities have launched this pioneering initiative whose objective is solving the existing training deficit in Spain in these two fields, which have traditionally been monopolized by the Administration and other public entities until their liberalization.

AIYON Abogados will continue advising its clients in matters derived from the dynamics of airports, such as handling its legal regime, aircraft contracts, certification and legal regime related to the manufacture and financing of aircrafts, code sharing and interlining in contracts with airlines, insurances, aeronautical inspections and labour contracts, among others.

It is also worth mentioning the training acquired in the increasingly present and relevant space law environment: international treaties and conventions, legal aspects of satellite navigation systems, use of resources, space waste, etc.

The interest and involvement of AIYON Abogados in these areas will be evident on November 5 with the participation of partners from Bilbao and Algeciras,  Zuberoa Elorriaga and José Antonio Dominguez, in the 33rd Annual Conference of the European Air Law Association (EALA) in Copenhagen.

During this meeting of experts, issues related to competition in the sector will be addressed in relation to state aid and EU legislation, the impact of Brexit, changes in the financing of the airline industry and sustainable aviation, among many other issues.

Read article published…

Verónica Meana joins the Arbitration Team of the Madrid Bar Association

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Verónica Meana Larrucea, partner in charge of the AIYON Abogados’ office in Madrid, has recently joined the Arbitration Court of the Madrid Bar Association.

The arbitrators are appointed by the Arbitration Court at the proposal of an Evaluation Committee designated by the governing body of the Bar Association after considering their curriculum and eligibility.

Since her nomination for the area of Maritime and Transport Law was accepted, Verónica will participate together with the other fifteen members in the resolution of the conflicts that may arise within this sphere.

Air and Sea Workers, and the Reduction Coefficients

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Workers in the transport sector generally endure difficult working conditions due to the long periods of work they must perform away from their homes, the distance from their families, the arduous schedules and, on occasions, the dangerous and unhealthy nature of their work; in short, the working conditions of all these workers could be defined as, at least, complicated.

In view of this reality, different Social Security systems in various countries have provided early retirement procedures for those workers who, foreseeably, suffer a deterioration in their health and put their physical or psychological integrity at risk in the performance of their professional duties. Good examples of this are workers of maritime and air transport sector, who we will focus on in this article.

In accordance with the above, different international regulations establish regimes for taking early retirement, i.e., they apply what in Spain are called “reduction coefficients” (COE).

These “reduction coefficients” of retirement pensions are coefficients that are applied to determine the amount of the pension when there has been an early retirement allowed by the Special Regime for Sea Workers (RD 1311/2007 of October 5) for example, or the Special Regime for Flight Personnel or Aerial Work (RD 1559/1986, of June 18). But when and how should these reduction coefficients be applied?

They will be applied exclusively when the worker has considered it necessary to lower his retirement age. The period of time during which the worker’s retirement age is lowered will be counted as having contributed for the sole purpose of determining the percentage applicable to calculate the amount of the retirement pension. In other words, the objective of the COE is none other than to compensate for the effects that retirement at an earlier age has on the amount of the retirement pension.

That is to say, if the worker has not considered it necessary to lower the retirement age, it will not be possible to apply the reduction coefficients to increase the amount of the pension to be received by the worker.

This explanation is supported by Supreme Court Ruling 807/2021, of July 20, 2021, which concludes that the reduction coefficients cannot be computed when the worker is 65 years old, since, in that case, he would be receiving a higher pension than the one he would have obtained if he had retired at 65 years of age. Since he/she is not entitled to the application of the reduction coefficient for being over 65 years of age, the reduction coefficient will not be recognized for the calculation of the pro-rata contribution percentage.

For this reason, we recommend that all workers who may be affected by the early retirement age and, therefore, by the application of the reduction coefficients be appropriately informed and advised by professionals on the optimum age at which to retire and the resulting contribution percentage at the time of retirement.

The Single European Sky

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In the late 1990s, among other initiatives, Europe decided to promote the creation of the single aviation market and the Single European Sky initiative.

The “Single European Sky” initiative aims primarily at reducing the fragmentation of European airspace, thereby increasing its capacity and the efficiency of air traffic management and air navigation services by reducing flight times, reducing flight costs and aircraft emissions, separating regulatory functions and service provision, interoperability of equipment, harmonised upper airspace classification and establishing common requirements for the licensing of air traffic controllers.

Until the late 1990s, air transport was carried out under the supervision and control of the national authorities of each country, and international air transport was mainly based on bilateral agreements between countries.

The evolution in Europe came with the signing of the “Single European Act” when national markets became a single competitive market for air transport. At that time, national airlines gave way to Community airlines and it was established as a basic principle that any Community airline could freely set fares for passengers and cargo, as well as access any route within the European Union, without any express permission or authorisation.

Both the European Parliament and the European Council have been key in this context. Indeed, the Treaty on the Functioning of the European Union recognises in article 100.2 the ability of the European Parliament and Council to lay down such provisions as they deem appropriate in relation to aviation.

In the field of the common conditions of competition, some of the common rules adopted to ensure the proper functioning of the European aviation system would be:

  1. The proposal for a Regulation on safeguarding competition in air transport and repealing Regulation (EC) No 868/2004 was published in June 2017.
  2. Regulation (EEC) No 95/93 and its amendments.
  3. Directive 96/67/EC.
  4. Directive 2009/12/EC.
  5. COM (2017) 0289, mechanism to ensure fair competition between Union air carriers and third countries.

In the area of passenger protection, the steps taken and to be assessed are:

  1. Creation of a European Aviation Safety Agency (EASA).
  2. The harmonisation of security requirements in all European Union airports.
  3. Regulation (EC) No 261/2004, aimed at protecting passenger rights.

These initiatives are expected to bring benefits for operators, carriers, passengers and shippers. Benefits such as tripling airspace capacity by 2035, reducing the cost of air traffic management, multiplying the safety of the sector and even reducing the environmental impact of air aviation. Examples of some of the improvements that can already be observed to date include:

  • The reduction of the average en-route delay caused by traffic flow management.
  • The decrease in average arrival delay caused by air traffic flow management.
  • The average length of the direct horizontal route has started with a downward trend.
  • The improvement of cost efficiency.

However, there are still some areas for further improvement, such as the shortcomings of the slot allocation system; avoiding that most routes departing from an airport in the Union continue to be operated by only one or two airlines; reducing the financial difficulties faced by airlines and some airports (which have increased alarmingly in these complex times of pandemic we are experiencing); improving the supervision of some airlines currently operating in some Member States.

There is no doubt that European airspace has developed to an important extent in recent years, creating a trend that has not yet been implemented in other continents despite the great efforts that have been invested in this direction.

Although there is still a long way to go, global airspace is moving towards union, transversality and sustainability, thus facilitating the intermodality of means of transport, the reduction of costs (economic, personal and environmental), as well as the development of new technologies, which undoubtedly results in a more positive progress of society.

BREXIT: The New European Scenario

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The European Union ended the year 2020 with breaking news. It was the agreement reached “in extremis” with the United Kingdom on the management of trade relations after 1st January 2021; the date on which, after approximately 4 years of extensions and postponements, BREXIT would finally enter into force.  

After arduous negotiations, on 24th December, Ursula Von der Leyen (President of the European Commission) and Boris Johnson (Prime Minister of the United Kingdom) announced that an agreement had been reached, avoiding so the much feared “Hard Brexit” or “extreme Brexit”, whereby the United Kingdom would leave the European Union without a previous agreement.

There is no doubt that the close trade relations that exist between the two territories have produced significant pressure which has led to this final agreement. In any case, whether by means of a global agreement or by means of sectoral agreements, trade relations with the United Kingdom would ultimately be signed since UK is a vital trading partner for the European Union. In fact, for Spain, the United Kingdom is the fifth in the scale of its trading partners, moving (between imports and exports) over 32 billion Euros during 2019. 

The importance of this agreement arises, to a certain extent, from the fact that thanks to it, bilateral trade relations can be maintained without customs duties or quotas, an aspect that is of particular interest to exporters and importers, but which in general affects the whole society, since the costs to be assumed in import operations, as well as in export operations, will always have an impact on the final cost and customer. However, this agreement does not prevent bureaucratic, administrative, and fiscal procedures from being multiplied due to this departure. Examples of it are customs declarations, sanitary and phytosanitary controls, and the payment of VAT on the declared value of the goods at the time of import.

In other words, since 1st January 2021 the United Kingdom is a third country for the European Union, and as it happens with goods entering and leaving third countries outside the EU, the Spanish Customs Authorities will have to ensure that they are informed on and have control of the goods that are to be introduced into their territory and, consequently, into the European Union. 

This information about entries and exits will generally be provided by the company carrying out the transport of the goods (shipping companies, airlines, or land carriers) and must coincide with the presented customs declarations. In fact, efficiency and speed in the transmission of this information will be key to facilitating border formalities and thus avoiding discontinuities and delays, which for now are unavoidable. Companies that usually trade with importers or exporters from third countries outside the Union are already aware of the formalities required for these operations.

 

TRADE AND COOPERATION AGREEMENT BETWEEN THE EUROPEAN UNION AND THE EUROPEAN ATOMIC ENERGY COMMUNITY, ON THE ONE HAND, AND THE UNITED KINGDOM OF GREAT BRITAIN AND NORTHERN IRELAND, ON THE OTHER HAND

With respect to the Agreement reached, we would like to highlight its second part, which includes aspects related to trade, transport, fishing and other provisions that are of interest to our sector with the aim of facilitating trade of goods between the parties and maintaining liberalized trade to the extent agreed in the Agreement. 

To this end, different aspects are addressed, such as:

  1. The recognition of the freedom of transit through their territories to persons with nationality of either Party. 
  2. The prohibition of customs duties, that is, a Party may not adopt or maintain any duties, taxes and other charges imposed on the exportation of a good to the other Party or in connection with such exportation, or any tax that is higher than the tax or charge that would be imposed on similar goods but destined for domestic consumption. 
  3. With respect to taxes and charges, the Parties may not assess these amounts ad valorem, but may simply charge such taxes and charges limited in amount to the cost of the services rendered and shall not constitute indirect protection of domestic products. There are exceptions for some specific services.
  4. Agree that the Parties may not impose restrictions, prohibitions or monopolies on imports or exports of goods destined for the territory of the other Party (except Article 11 of the GATT 1994). 
  5. That each Party shall determine in its territory the customs value of the goods of the other Party. 
  6. To create rules for determining the origin of goods for the purposes of applying preferential tariff treatment and to establish origin procedures. 
  7. Agree on the sanitary and phytosanitary measures to be applied on goods imported into the Parties to this Agreement. 
  8. Ensure customs cooperation for trade simplification. To this end, measures such as the rapid release of goods, the presentation and advance electronic processing of documentation, the promotion of the association of authorized economic operators, the establishment of the single window, the facilitation of roll-on-roll-off traffic, etc., are taken. 

Although this agreement regulates many aspects of interest for the sector, there are other things that it does not resolve and that are fundamental for the correct development of commercial relations. In particular, we would like to make special mention of the exequatur or recognition of foreign judgments, as well as the jurisdiction applicable in the resolution of disputes between the Parties. 

Given the transcendence that an incorrect choice of the applicable jurisdiction may imply for the subjects involved in international trade operations, from AIYON Abogados we would like to recommend all agents involved in trade with the United Kingdom, before starting a new commercial relationship, to make express agreements where the jurisdiction to which they will submit their disputes is agreed. In case of pre-existing commercial relations, we recommend analysing whether the jurisdiction agreed upon at the time is still the best for the defence of their present and future commercial interests.

Royal Decree-Law 26/2020, of 7 July, on economic recovery measures to deal with the impact of COVID-19 in the areas of transport and housing

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On Wednesday 8 July 2020, Royal Decree Law 26/2020, was published in the Official State Bulletin, with the aim of approving a set of measures required for the purposes of economic recovery in the transport sector and in the field of housing, protecting the health of workers and travellers, guaranteeing the availability of essential goods and services, providing liquidity to companies and reducing administrative burdens.

In this article, we will analyse this regulatory text, focusing on the specific measures arising for the transport service. 

1. AIR TRANSPORT

Articles 2 to 7 include the management measures adopted for air transport. General prevention measures against COVID-19 that companies in the sector must guarantee compliance with, as well as all those that the Autonomous Communities have adopted. 

Operational guidelines have been established from Europe, which are applicable to the entire Spanish territory. The EASA/ECDC Guidelines will be compulsory not only for airport managers but also for companies that carry out their work as auxiliaries at airports: 

– Inform users on the preventive measures and health reasons why they should refrain from accessing the airport, as well as the consequences of detecting a person suspected of having COVID-19 during health checks. 

For its part, the Transport Facilitation Committee will be responsible for coordinating and supervising all the actors who have a role in the application or definition of these measures.

 

2. MARITIME TRANSPORT

Articles 8 to 14 set out the measures taken to revitalise the maritime sector. Firstly, the reasoned reduction of maritime traffic requirements for 2020 at the request of the concessionaire will be permitted, due to the impossibility of compliance (deriving from COVID-19). 

Likewise, the liquid quota of the occupation rate accrued during the financial year 2020 may be reduced, being determined this reduction depending on the decrease in maritime traffic or, failing this, on incomes attributable to the activity, the different types and also depending on the economic and financial situation of the Port Authority. 

With regard to the activity tax, the Port Authorities may (upon request of the taxpayer) leave the lower limit of the annual activity tax quota without effect for the year 2020. In turn, the enforceability of the activity fee established in the authorisation may also be modified. 

As we have already commented in other publications, this Royal Decree confirms that the fees for vessels (between 1 March 2020 and 31 October 2020) may be modified, depending on the reason for the stay in port waters. Likewise, the Port Authorities may grant deferrals of tax debts accrued (between 1 March and 31 October 2020) and not paid.

As a final comment, it should be noted that the provision of human resources at the passenger terminals serving the regular maritime services during the state of alarm, are considered as emergency services for all purposes.

 

3. RAIL TRANSPORT

With regard to Railway Transport, it should be mentioned that RENFE is authorised to arrange credit operations during the 2020 financial year, for the amount of 1 billion euros. 

It is also planned to authorise extraordinary credits to be financed with Public Debt.

 

4. ROAD TRANSPORT

Articles 18 to 30 contain the provisions relating to road transport. Firstly, moratoriums will be granted for the public goods and occasional passenger transported by bus. 

Among other measures, deferrals of payments of instalments on loan, leasing and renting contracts used by self-employed persons and public undertakings for the purchase of buses and public transport vehicles of more than 3.5 tonnes, maximum authorised mass, are accepted. 

With regard to the approval of road transport authorisations, this will be extended, establishing 2021 as an open deadline for approval of transport authorisations that should be endorsed in 2020 and have not been yet. Also, for those authorizations that should be endorsed in 2020 and have done so, the deadline for their next endorsement is extended until 2023. In addition, the opportunity to apply for extraordinary rehabilitation for public transport authorisations invalidated during 2020 is provided due to the inability to certify the requirements for their endorsement. 

Finally, an extension of 3 months is established for those technical inspection certificates of vehicles that expire between 21 June and 31 August.