Changes in Land Transport Regulations

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On 14 September 2022, the “Organic Law 11/2022, of 13 September, amending the Criminal Code on reckless driving of motor vehicles or mopeds” was published in the Official State Gazette and “Royal Decree 750/2022 of 13 September, amending Article 3 and Annex I of Royal Decree 920/2017 of 23 October, regulating the technical inspection of vehicles“, with entry into force on 15 and 27 September 2022, respectively.

On the one hand, with regard to the amendments to Organic Law 11/2022 amending the Criminal Code in the area of imprudence in the driving of motor vehicles or mopeds, in general terms, it could be said that three new amendments have been introduced with the aim of reinforcing the spirit of the previous reform, that introduced by Organic Law 2/2019, of 1 March, amending Organic Law 10/1995, of 23 November, of the Criminal Code, on the subject of reckless driving of motor vehicles or mopeds and the penalty for leaving the scene of an accident, which provided the criminal justice system with greater legal certainty.

The first modification consisted in the reduction of the fine in the case of causing injuries through less serious negligence, which objectively require medical or surgical treatment of one or two months for their cure.

For its part, the second of the modifications has eliminated the requirement of a complaint by the injured party or their legal representative whenever death is caused by less serious negligence using a motor vehicle or moped, thus converting the offence typified in Article 142.2 of the Penal Code into a public offence.

And, thirdly, it has eliminated the possibility of imposing the sanction of deprivation of the right to drive motor vehicles and mopeds in offences of less serious negligence, stipulating that the imposition of this sanction is mandatory.

On the other hand, in relation to Royal Decree 750/2022 amending Article 3 and Annex I of Royal Decree 920/2017, of 23 October, which regulates the technical inspection of vehicles, two changes are introduced.

The first of these is the transposition into our legal system of the “Commission Delegated Directive (EU) 2021/1717 of 9 July 2021 amending Directive 2014/45/EU of the European Parliament and of the Council of 3 April 2014”, as regards the updating of the designation of certain categories of vehicles and the inclusion of eCall, an in-vehicle emergency system that automatically makes a free emergency call to 112 when a serious road accident occurs.

Finally, Royal Decree 750/2022, in its Single Additional Provision, increases, exceptionally and for a single time only, the period of validity of the next inspection date for vehicles affected by Order SND/413/2020, of 15 May, establishing special measures for the technical inspection of vehicles as a result of the situation caused by Rulings 1237/2021, of 18 October 2021, 1243/2021, 1244/2021 and 1246/2021, of 19 October 2021, of the Third Chamber of the Supreme Court.

AIYON Algeciras Strengthens its Team

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We would like to announce the incorporation of our colleague and lawyer Rocío López  to the AIYON Algeciras team, who will be in charge of the local AIYON office together with the head of the office, José Antonio Domínguez. After spending more than a year collaborating with our entire team from our offices in Cádiz and Algeciras and gaining extensive experience, Rocío has joined our team of lawyers in AIYON Algeciras on a permanent basis.

Algeciras is of great importance as it has the largest Spanish port with a large volume of passenger traffic, as well as all types of goods in bulk and containers, in addition to road traffic. Whether acting as a port of destination or origin, or as a strategic transhipment port, the port is an essential area for the passage of cargo and passengers to and from the mainland and the islands, as well as from all types of locations worldwide.

Therefore, in order to provide the most complete service and confirm its essential position, Algeciras has a large port community of which AIYON Abogados has been a part for years, with a very active presence in associations such as Cádiz-Port or Comport- Algeciras Port Community.

Our new colleague, Rocío López, holds a Degree in Labour Relations and Human Resources from the University of Seville (2016) and a Degree in Law from the University of Cádiz (2020). She also holds a Master’s Degree in Maritime-Port Company Management and Maritime Law from the University of Deusto (2020) and a Master’s Degree in Access to the Legal Profession from the UNIR (2022). Her training includes previous work coordinating services and quality in a company in the maritime-port sector in Algeciras, as well as a subsequent internship in a maritime law firm in Bilbao.

We also take this opportunity to announce the departure of AIYON Cadiz lawyer Encarnación Quevedo who has embarked on a new adventure in the world of administrative law with great enthusiasm, and always with all our support and good wishes. Good luck in this new stage, Encarni!

El Diario de Cádiz Highlights the Work of Aiyon Lawyers in Algeciras and Cádiz

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El Diario de Cádiz has recently published an article highlighting the work carried out by Aiyon from its offices in Algeciras and Cádiz, its solid presence in the south and its active participation in the sector, not only as expert lawyers in Maritime Law, International Trade, Insurance or Transport Law, but also as teachers and trainers of the new generations being part of the teaching staff of the “Master in Legal Consultancy of Companies” taught at the University of Cadiz.

From its headquarters in Algeciras, José Domínguez Castro, partner and head of the firm, who in addition to being a lawyer has a degree in Nautical and Maritime Transport, a Diploma in Civil Navy and a Merchant Navy Pilot with accredited experience in passenger ships and ro-ro cargo, confirmed to the Journal that the local client is fully aware of the need of specialised lawyers to provide legal advice in the different areas of our speciality. We refer to all matters relating to trade, transport and insurance, and all that this entails in terms of the lawyer’s knowledge of the world of logistics, port handling, storage and warehousing, shipbuilding and ship repair, ship supplies and services, land transport, sanctioning procedures, insurance claims, etc. Legal advice is provided from a purely contentious point of view when the dispute has already arisen and in order to try to reach a negotiated resolution, or judicial if unavoidable, as well as from a previous moment in order to obtain preventive advice and avoid possible future risk situations.

Together with Enrique Ortiz, partner in charge of Aiyon’s office in Cadiz and expert lawyer, our colleagues have actively participated as speakers and trainers in Universities and companies. An example of this are the recent lectures on transport and insurance in the international sale and purchase given int June in the “Master’s Degree in Business Legal Consultancy” at the University of Cadiz. With regard to his teaching work, we would like to echo José’s words: “We have really enjoyed giving these conferences and we are grateful to the University of Cadiz for having counted on us for this Master’s Degree. With the regulatory selection we made and the case study method, taking advantage of our real experience, we think that the students have been able to acquire a global vision of real and common risks that arise in this complicated sector and how to advise their companies or clients so that they can prepare themselves in the best possible way and protect their interests when facing operations of this type”.

Read article…

Enrique Ortiz and José Antonio Domínguez participate in the “Master in Business Legal Consultancy” of the University of Cadiz

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We would like to thank the University of Cadiz for their warm welcome to our partners of Aiyon Cadiz and Aiyon Algeciras, who had the honour of being part of the teaching staff of the “Master in Legal Business Consultancy (MAJE)” organized by the Faculty of Law of the University of Cadiz and the University Business Foundation of the province of Cadiz (FUECA).

A Master’s Degree that offers its students the opportunity to broaden and deepen their legal and accounting knowledge in the business world, from a comprehensive, up-to-date and practical perspective, so that they can plan their professional career in the specific field of legal-business advice, and which is taught by renowned professionals with extensive experience in legal-business advice, both from the University itself and from the private sector.

In their classes, our colleagues, Enrique Ortiz and José Antonio Domínguez, have worked with the students on two subjects of great relevance in the field of international trade, such as the international transport contract and insurance in the international market. All this within the rest of the subjects that made up the module entitled “International Dimension of the Company” of which they have been part.

Likewise, Enrique and José have shared with the attendees their long and extensive professional experience, acquired during the many years they have been active in managing matters for all types of clients related to the transport, insurance, and international trade sector, commenting on practical cases and common situations in their day-to-day work in AIYON Abogados.

We are sure that these new generations of professionals will be very well received, and we wish good luck to all of them!

Royal Decree-Law 3/2022 on measures for the improvement of road freight transport

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In recent months, fuel prices have risen sharply following the start of Russia’s invasion of Ukraine. This is having serious consequences for the transport sector, among others.

Royal Decree-Law 3/2022 of 1 March was enacted to mitigate the effects of this rise, to ensure the sustainability of the road freight transport sector, whose structure makes it more difficult to adapt to unfavourable scenarios, and to combat unfair competition from “letterbox companies” that operate de facto outside their States of establishment.

Among the measures included in this Royal Decree-Law applicable to land transport are the following:

 

1.- Mandatory transport price review subject to fuel price variation

RDL 3/2022 amends article 38 of Law 15/2009, of 11 November, on the Land Transport of Goods Contract (“LCTTM”) relating to the revision of the price of road transport in accordance with the variation in the price of diesel fuel. In accordance with the new wording of the aforementioned article 38:

It is compulsory to revise the price of the transport contract in line with the variation in the price of fuel, either by an increase or a reduction in the price of fuel. Any agreement to the contrary shall be considered null and void.

This duty to review applies to all transport contracts, whether verbal or in writing, whether they relate to the performance of a single journey or to continuous contracts. In the case of single-trip transport, the review shall apply if the price of fuel has changed between the day of conclusion of the contract and the time of transport. In the case of continuous contracts, which will be more affected by this measure, increases or reductions shall be applied on a quarterly basis in relation to the initially agreed price, being possible to agree on a shorter period, but under no circumstances a longer one.

The review of the price of transport will be conditional on the price of fuel having undergone a variation of more than 5%, although the parties may agree on a lower threshold.

Only one revision formula can be applied, and it will be the same for all transport contracts. In other words, it is not possible for the carrier and its customer to agree on another formula. This formula is established in article 3.4 of the Ministerial Order FOM/1882/2012 of 1 August, which approves the general contracting conditions for the transport of goods by road. The formula depends on both the variation in the price of fuel and the maximum mass of the vehicle and applies a coefficient to the percentage variation in the price of fuel.

In continuous transport contracts entered into prior to the Royal Decree-Law, these revisions shall be made:

a) If the contract includes different review formulas, these formulas must be updated to the one set by the Administration within a maximum period of 6 months from the entry into force of the Royal Decree-Law.

b) For those contracts that do not include a price revision clause due to variations in the price of diesel, it shall be compulsory to revise the price of those transports carried out after the entry into force, considering the variation in the price of fuel in the last 12 months.

The variation in the price of fuel shall be reflected in the invoice in an itemised manner, unless another way of reflecting the adjustment is agreed with the client.

 

2.- Regulation of goods loading and unloading operations

Taking up a historical demand of the transport associations, the Royal Decree-Law introduces an amendment to the thirteenth additional provision of Law 16/1987, of 30 July 1987, on the Regulation of Land Transport (“LOTT”) prohibiting drivers of goods transport vehicles of more than 7.5 tons. of MAM (Maximum Authorised Mass), whether they are self-employed or salaried, to participate in loading and unloading operations carried out in Spanish territory of goods or their supports, packaging, containers or crates, except in the following cases:

(a) Transport of removals and furniture storage.

(b) Carriage in tank vehicles.

(c) Carriage of aggregates or carriage in tipper vehicles or vehicles fitted with a crane or other devices inherent to the vehicle for the purpose of loading and unloading.

(d) Carriage in vehicle carriers and roadside assistance cranes.

(e) Carriage of break-bulk, parcels and any other similar carriage

(f) Carriage of live animals.

(g) Cases in which the regulations governing certain types of carriage specifically provide otherwise in relation to the participation of the driver.

(h) Those cases established by regulation, provided that the safety of the driver is guaranteed.

This ban also applies to drivers of foreign transport companies operating in Spain.

Unlike the rest of the Royal Decree-Law, the entry into force of this ban will take place on 2 September 2022, so that loading and unloading centres can prepare themselves.

In relation to the above, the Royal Decree-Law amends article 20 of the Land Transport of Goods Contract. The new wording stipulates that loading and unloading will be for the account of the shipper and the consignee unless, prior to the actual presentation of the vehicle for loading, it has been agreed in writing that these operations will be carried out by the carrier against payment of a supplement to the price of the transport. This agreed consideration must be shown on the invoice separately from the carriage. As regards the stowage and unstowage of the goods on board the vehicles, these will be the responsibility of the shipper and the consignee respectively, unless they are expressly assumed by the carrier.

In the event that the parties agree in writing that the carrier will carry out the loading and unloading operations, and except in the case of one of the aforementioned specialities, a person other than the driver will have to carry out these tasks.

 

3.- Regulation of stoppages

The Royal Decree-Law also modifies article 22 of the Land Transport of Goods Contract on stoppages and reduces from two hours to one hour the period of time that a vehicle must wait for loading or unloading to be completed from the time it is made available under the terms of the contract.

The stoppage of the vehicle for reasons not attributable to the carrier, including loading and unloading operations, shall give rise to compensation equivalent to the Public Indicator of Multiple Effect Incomes (“IPREM”) per day multiplied by 2 for each hour or fraction thereof, with a maximum of 10 hours per day. If the stoppage is longer than one day, this amount shall be increased by 25% for the second day and by 50% over the amount indicated for the first day for the following days of stoppages.

The parties, however, may agree on a higher amount.

This amount shall also be used to assess the compensation to the carrier when the vehicle is paralysed due to an accident or breakdown for which the carrier is not responsible.

 

4.- Other amendments affecting transport companies and employees

Royal Decree-Law 3/2022 also introduces an amendment to Law 45/1999 of 29 November 1999, on the posting of workers in the framework of a transnational provision of services in road transport, imposing an obligation of communication in the case of the posting of drivers who are employees. This communication will be made by means of the form of the public interface connected to the Internal Market Information System (“IMI”) established in Regulation (EU) 1024/2012.

Finally, the Royal Decree-Law extends the system of penalties contained in Articles 140, 141 and 143 of the Regulation of Land Transport.

Aiyon Abogados collaborates with Chambers in the shipping law 2022 Global Practice Guide

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Our partners Verónica Meana, Mikel Garteiz-goxeaskoa, Jose Domínguez and Enrique Ortiz  have collaborated, once again, in the section dedicated to Spanish Law of the Shipping 2022 Global Practice Guide published by Chambers. This publication focusses on practical legal issues affecting shipping in 26 key jurisdictions.

The guide provides information on marine casualties, Owners’ liability, cargo claims, maritime liens, ship arrests, Shipowners’ income tax relief, choice of Jurisdiction and Law agreements, Port State Control matters and in particular the implementation of IMO 2020 on sulphur content of fuel oil, and the implications of Covid-19, among other issues.

Read the AIYON Abogados contribution by clicking on the following link.

“Estrategia Empresarial” Stresse out our Consolidation in the Field of Aviation and Space Law

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We have had the pleasure of receiving “Estrategia Empresarial” in our Bilbao office, a prestigious publication that has been interested in getting to know in depth our activity, our team and our long professional trajectory as legal professionals. They were also interested in interviewing our partner, Zuberoa Elorriaga, in view of her recent qualification as a specialist in Aviation and Space Law, after completing the postgraduate course given by Icade University in collaboration with the Spanish Association of Aeronautics and Space Law (Aedae).

As our partner in Bilbao has rightly stated, at AIYON “we represent and protect the interests of individuals and companies immersed in a particularly complex, dynamic and multidisciplinary framework, which presents all kinds of issues affecting companies, operators, entities or individuals from all perspectives, bearing in mind that the ultimate goal is to comfort our clients by providing the most appropriate response to their query or the most beneficial solution to their problem”.

Read the full article

AIYON Abogados collaborates with the publication “The Insurance Disputes Law Review”, 2021

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We would like to thank “The Law Reviews” for allowing us to contribute to the 2021 edition of “The Insurance Disputes Law Review”, a work that we have carried out in collaboration with other prestigious international firms.

This cooperation is being carried out for the second consecutive year and has allowed our partners Verónica Meana and Mikel Garteiz-goxeaskoa to provide a broad and very complete overview of Spanish insurance regulation.

In addition to reviewing the general aspects of insurance and the legal framework, the study has also focused on studying the types of litigation that have increased in Spain in recent months in areas such as: limitation and delimitation clauses of insurance; compensation for loss of profit due to business interruptions due to Covid-19; malice and gross negligence; insurance contracts for large risks and possible negligence in the health sector, among others.

 

Read the AIYON Abogados chapter by clicking on the following link.

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/