Comments on Spanish Law 13/2021, of 1st October, on combating late payment in the carriage of goods by road

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On 2 October 2021, the Act 13/2021 was published in the Official State Journal, which amends the Land Transport Act to combat late payment in the field of land freight transport; this regulation came into force one day after its publication.

The need for this regulation arises from the fact that in Spain the average payment term for commercial transactions is 90 days, well above the European average, and that the existing asymmetry between the parties to the land transport contract may generate possible situations of unfair competition in the regulatory framework regulating the activity.

In order to correct this situation, a new type of infringement has been created under this new law, which will penalize cases in which transport prices are paid more than sixty days in advance (payment terms of more than 60 days were already void according to pre-existing regulations).

THUS, AND IN A VERY SCHEMATIC WAY:
Two new infringements are created: a very serious one, in the event that the price of the transport exceeds EUR 3,000 and another serious one when it is less than or equal to EUR 3,000.

The regulation establishes a scale of penalties depending on the price of transport, ranging from a minimum fine of EUR 401 to a maximum of EUR 6,000, which, in the even of a repeated offence, may be increased to a maximum of EUR 18,000, with aggravated fines of up to EUR 30,000.

For dissuasive purposes, the regulation contemplates the possibility of publishing the sanctioning resolutions imposed for incurring in very serious infringements.

The regulation does not establish when the maximum period of 60 days starts to be calculated, and although it is most likely to begin with the provision of the service (delivery of the goods at destination), the alternative would be that this period would be calculated from the issuance of the invoice for which the carrier has a maximum period of 15 days from the date of transport/delivery of the goods at destination.

The offending party may be any type of company that owes the price of a transport (even a carrier in the case of subcontracting), regardless of whether the creditor company is a carrier or not. To this effect, it must be taken into account that in the case of subcontracting for transport between companies belonging to the same group, these will also be considered as offending parties and will have to face the corresponding penalties in the event of not complying with the maximum payment term.

It will not be necessary for the creditors to denounce the non-payment of the transport price, that is, the Administration will act ex officio, and we assume that it will be by the inspectors of the Ministry of Transport within the inspections they perform in the transport companies. Although it seems that the sense of this amendment is to support and facilitate the collection of the transport price by the carriers, it is also true that this makes it unlikely that it will be applied to foreign clients of Spanish carriers.

The regulation does not apply retroactively, that is, to transports carried out prior to October 3, 2021.

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.

“The Legal 500” joins the list of international distinctions of AIYON Abogados

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AIYON Abogados SLP has received a special recognition for its areas of Maritima and Land Transport Law by “The Legal 500”, a prestigious international guide that investigates the activity of more than 2,700 law firms in 80 countries. This evaluation is added to the gradually extending relation of distinctions granted to the firm: “The International Comparative Legal Guides (ICGL)”, “The Insurance Disputes Law Review” and “Chambers”, among others.   

In its 2021 edition for Europe, “The Legal 500” places AIYON Abogados in leading positions in Maritime and Land Transport Law and recommends its services for being considered, according to collected testimonies, “a top-rate boutique law firm with a team available 24 hours every day of the year and comprising of professionals with an ample formation in law and in-depth knowledge of recent Spanish jurisdiction. The guide also underscores the “fairness and the easy communication of its lawyers”, “who have been involved in the majority of the main maritime, trade, insurance and transport cases in Spain with excellent results”. 

Maritime Law

With regard to the performance in maritime transport, the references consulted by “The Legal 500” stresses that it is “a solid firm that, from its offices in Bilbao, Madrid, Cádiz and Algeciras, offers an on-site service throughout the whole country”. “The extensive legal and technical training of its lawyers in maritime transport – the guide adds – provides them with deep knowledge of the business, the operations and its physical execution”. In the same way, “the proximity and the permanent communication with the clients (shipowners / charterers, masters, crew members, ship agents, insurance companies, etc.) and their successful and renowned trajectory in advising on sea pollution, collisions, salvage, wrecking, insurance, stowaways, ship arrests, piracy, ship repair and construction contracts are positively pondered.

Land and Air Transport 

The firm also receives excellent references for its “experience in any kind of issues arising in the sector of land transport”. Particular consideration shall be given to their efforts in national and international transport (cargo claims and theft, contracts of guarantee, contracts of logistics and multimodal transport, sanctioning proceedings, etc.) The expert capability and practice in air transport is also being addressed (insurance contracts and air traffic accidents, as well as purchase, leasing and financing of aircrafts, etc.) 

In both sections, the guide evaluates the added value of AIYON Abogados that, according to the references obtained by “The Legal 500” rests upon the ample experience of every member of the team (on average 17 years) and a large teamwork culture, since all the partners have been working together for most of the time of their careers. This allows the firm to choose the best team for every case and client in particular with the aim to protect and promote the business of their clients. 

“The Legal 500” 

The ´purpose of “The Legal 500” is to help lawyers and operators find the most suitable advisors by means their classification, based on the opinion of 300,000 respondents that are processed and evaluated by independent researchers. Merit is the only criterion applied for including law firms into the classification, which is thoroughly reviewed every year. 

Read the article published…

Direct Action by the Effective Carrier against the Principal Sender in case of Bankruptcy proceedings of an intermediary carrier

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The Additional Provision Sixth of Law 9/2013, of 4th July, which amends Law 16/1987, of 30th July, related to the Spanish Land Transportation Regime (“LOTT) establishes the right of the effective carrier to claim, for the unpaid part of the price of the carriage, against the principal “sender” and all those parties that have preceded him in the contract chain, in case of lack of payment by his contractor. This provision has been analysed in various occasions by the Spanish Supreme Court (in judgement such as nº 644/2017, of 24th November, and 248/2019, of 6th May) as reported by Aiyon Abogados in the past.

The Spanish Supreme Court has stated, in the aforementioned judgments, that the direct action of the effective carrier, of the Additional Provision Sixth of LOTT, is not limited to the amount owed by the principal sender to the intermediary as the goal of the Provision is to provide a guarantee to final carriers who are considered to be the weakest link of the chain. For this reason, this direct action has been configured as a supplementary payment guarantee.

Recently, however, in its judgment nº 4405/2020, of 29th December, the Supreme Court has had the chance to examine the effect of bankruptcy proceedings in the direct action of the effective carrier. In this judgement, the Supreme Court analyses once again the Additional Provision Sixth of LOTT and corroborates that such Provision does not make any exceptions for bankruptcy proceedings. The Supreme Court also notes that, after the Additional Provision Sixth, the Amendments approved in the Bankruptcy Laws did not include carrier’s direct action amongst those that cannot be exercised once bankruptcy protection has been afforded. Since it considers that this direct action is not analogous to the action of the person that provides work and material to a contract against the owner of the works, which cannot be prosecuted once bankruptcy proceedings have been initiated, the Spanish Supreme Court confirmed the option to exercise the direct action by the effective carrier when the intermediary carrier is in bankruptcy regardless of whether the principal sender has previously paid or not its contracting party.

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.

Transport Insurance: Limiting Clauses vs Delimitation Clauses

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Transport insurance is characterised by the principle of universality of risk, that is, the object of the insurance will be the damage that can be suffered by the goods during or as a consequence of the transport, without any other precision and independently of the nature of the incident occurred. In this context, the clauses delimiting the insured risk emerge. These should be differentiated from the limiting clauses of the insured party’s rights.

The character of the delimiting clauses consists of stipulating: (i) which risks constitute the object of the contract; (ii) in what amount; (iii) during what period; (iv) in what time frame. That is to say, the objective of these clauses is to individualise the risk and establish its objective basis, eliminating possible ambiguities and specifying the nature of the risk in coherence with the object of the contract.

This type of clause will never delimit the insured risk in any way that is  contradictory to the particular conditions of the contract or in an infrequent or unusual way (Sentence STS 853/2006 of September 11, STS 1051/2007 of October 17, STS 598/2011 of July 20 and STS 273/2016 of April 22).

With respect to the limiting clauses, their character is completely different since their main objective is to condition or modify the insured party’s right. The main characteristic of these clauses is that for the insured party they imply the introduction of exclusions that go beyond the natural content of the contract, restricting, conditioning or modifying his right to receive the compensation or benefit guaranteed in the contract (Rulings, STS 273/2016 of April 22, STS 58/2019 of January 29, STS 609/2019 of November 14 and STS 421/2020 of June 14).

Contrary to what might be expected, the limiting clauses are accepted by Spanish regulations and are perfectly valid as long as they comply with the requirements of the Law of Insurance Contracts. Specifically, Article 3 of the mentioned regulation states that the clauses limiting the rights of the insured party must be specially highlighted and must be specifically accepted by both parties in writing.

The jurisprudence of the Supreme Court: Limiting clauses vs Delimitation clauses

Before starting the jurisprudential analysis of the validity and characteristics of the different clauses included in insurance policies and which affect in a direct way the rights of the insured party, we consider to be relevant to study a prime and practical example where we can observe the difference between the delimitation and limiting clauses: the requirement to subject the vehicle and the cargo to “due vigilance” during the transportation. A concept that represents a clear example of how insurance companies try to limit and consolidate their policies, through their clauses, so that the insured party guarantees a cargo transport that fulfils some minimum and general security requirements.

When considering the requirement to subject the vehicle and its load to “due vigilance”, an obligation that is imposed on the insured party in the agreed coverage, the first thing that should be emphasised is that its interpretation is not uniform or steady, since each insurance company will determine the characteristics or requirements it will demand from the insured party. However, we can outline some common patterns that are recurrent in most of the policies, which we set out hereafter:

– The vehicle must be completely and properly closed.

– The vehicle must have all the locking, alarm and locking devices available to it in proper working order and use.

– The vehicle may not be parked in inappropriate and tentative areas, that is lonely, poorly lightened areas with uncontrolled entrance, not subject of surveillance, etc.

– The vehicle must be parked primarily in a monitored parking, in a completely closed garage or building or in a solidly built and locked area.

– If the insured party proves the impossibility to park in an appropriate place, it is possible to accept other options of parking if: the vehicle is parked with other lorries, in properly-lighted areas adjacent to establishments open 24 hours a day, provided that the driver spends the night inside the vehicle, etc.

Having analysed the requirements stipulated in the transport insurance policy, the question to ask is: are these delimiting or limiting clauses?

Already in 2017, we published an article on the validity of the limitation of coverage of insurance policies for the transport of goods due to the lack of due vigilance during road transport (“Limitation of coverage due to lack of due vigilance during road transport“). At that time the Supreme Court, with its ruling of 7 November 2017 (STS 590/2017) recognized that there were two opposing interpretative criteria regarding the qualification of such clauses:

1. Those that consider that these clauses are delimiting for the purpose of the insurance.

2. Those that consider that these clauses are limiting the rights of the insured party.

At that time, the Supreme Court opted for the second interpretation, establishing an interpretative criterion for the rest of the courts. That means, it considered that the clauses that developed the concept of “due vigilance” limited and modified the rights of the insured party. The Judgement of November 7, 2017, reads as follows: “The clause that is the object of the dispute cannot be qualified as a clause that delimits the risk, given that its content, interpreted systematically, does not adjust to the nature and function of these clauses, that is, it does not attempt to individualize the risk of theft of the goods and to establish its objective basis. On the contrary, the criterion which it incorporates, in a decisive manner, apart from establishing or defining the objective basis of the risk, limits the cover initially agreed with the establishment of a regulation which departs from the natural content of the contract concluded, and from what may be considered usual or deriving from the introductory or particular clauses”.

Now, three years later, the Supreme Court, once again, ratifies this criterion by means of its Ruling of October 22, 2020 (STS 3415/2020), in which the limiting character of these clauses is reiterated and it is stated: “With respect to the distinction between clauses that delimit coverage and limiting clauses, the delimitation clauses specify the object of the contract and establish the risks that, in the event of its occurrence, cause the insured party to have the right to the benefit because it constitutes the object of the insurance. While the limiting clauses restrict, condition, or modify the insured party’s right to compensation or the benefit guaranteed in the contract, once the risk covered by the insurance has occurred. (…). The regulation of the insurance contract for land transport of goods itself establishes a series of material, temporal, and spatial exclusions and limitations: damage due to the intrinsic nature or inherent defects of the transported goods (Art. 57.2 LCS); carrying out the journey within the time limit (Art. 58 LCS); carrying out the transport within national territory (Art. 107.1.a LCS). These legal limitations, together with the intrinsic purpose of this insurance modality of compensation for material damage that the transported goods may suffer on the occasion of or as a consequence of the transport, make up its natural content. Whereas the rest of the limitations, which are usually more or less literal and extensive transcriptions of national or international forms (in this case, according to the policy itself, of the Institute Cargo Clauses, of the Institute of Insurers of London) suppose the introduction of exclusions that go beyond the natural content of the contract and, therefore, are limiting clauses, in the sense and with the effects foreseen in art. 3 LCS. As we have already stated in the aforementioned ruling 590/2017, of 7th November. 6.- Consequently, we must conclude that a clause such as litigious clause, which established a series of determining factors (places and times of parking, locked premises, surveillance, etc.) to the coverage of the risk in the event of theft of the goods, is a limiting clause of the insured party’s rights, and not merely one that delimits them”.

Although the criterion applied by the Supreme Court is clear, in the lower courts these clauses remain a controversial concept and that is because limiting clauses are every time broader and their presence is very frequent in insurance policies in general.

For all these reasons, we recommend that users (insured parties) duly analyse every type of insurance policy offered to them, particularly what regards the limiting clauses contained in the policy, before agreeing to any type of insurance contract. To this effect, you can always count on the assistance and advice of our law firm, AIYON Abogados.

Useful Guide to Stowage for Road Transport of Goods

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Already in 2006, the European Union estimated that 75% of the goods transported by vehicles on its roads were not properly stowed. What is more, it then calculated that 1 of 4 accidents involving vehicles fitted out for the transport of goods had their origin in deficient stowage.

Cargo stowage is considered the adequate placement, distribution, protection and fixing of goods inside a container or vehicle so that they can safely arrive to their destination, under the custody of the carrier. 

This has always been an ill-defined, imprecise term and has led to various interpretations. In response to this, the courts have accumulated multiple sentences with contradictory definitions in relation to the interpretation of the concept itself, as well as with respect to the similarities or differences in relation to others, such as the lashing of the goods.

On the one hand, there are courts that understand that lashing and stowage are different concepts for which different agents may be responsible (Murcia Provincial Court – Decision 88/2016 or the Supreme Court – Decision of 22 November 2006), yet, on the other hand, there are courts that consider that lashing is an intrinsic part of stowage and, therefore, must be carried out by the loader as part of his duties (Barcelona Provincial Court – Decision of 30 April 2015). 

Although the situation has improved, this is still a burning issue and we need to work on it. For this reason, the Basque Government, together with the Institute for Cargo Safety and other agents and institutions in the sector, has promoted the creation of a complete Basque Guide for Road Transport of Goods, which we believe can be very useful for the agents involved in these tasks and in the area of transport.

The Guide is based on four general rules, as follows: 

– Directive 2014/47/EU of the European Parliament and of the Council of 3 April 2014 on the technical roadside inspection of the roadworthiness of commercial vehicles circulating in the Union and repealing Directive 2000/30/EC

– Law 15/2009, of 11 November, on the contract for land transport of goods.

– Law 16/1987, of 30 July, on the Regulation of Land Transport.

– Royal Decree 563/2017, of 2 June, which regulates the technical roadside inspections of commercial vehicles circulating in Spanish territory.

In addition, the guide is divided into several chapters which, among other matters, deal with aspects such as stowage tools; damage caused by deficient stowage; who is responsible for the cargo, stowage and lashing; or what criteria are used in the inspections and how they are carried out. Furthermore, it tries to clarify, to the most possible extent, the controversies raised by this term, and to this end it provides the following list of aspects that are considered to be inherent to the concept of STOWAGE: 

– Verification of the packaging, check that it is suitable for the transport of goods 

– Protection, if necessary. 

– Loading into the vehicle. 

– Conditioning of the goods for transport.

– Stabilisation, if necessary. 

– Adequate weight distribution. 

– Fixing and immobilisation of goods.

– Checking during the journey, and subsequent tightening if necessary.

The Guide promotes that the loader makes a correct description of the goods and ensure that it is correctly packed (paying particular attention to dangerous goods). In addition, they must ensure that the vehicle and the fastening equipment used for the transport are suitable and that the person or entity in charge of loading the goods onto the truck is duly informed of everything. 

Regarding the duties of the loader, these basically consist of two concepts: (i) the review prior to loading and (ii) the review of the operation at the end of the loading and before initiating the transportation.

Finally, and with respect to the responsibility of the Carrier, even if this has not assumed the tasks of loading and unloading the goods in the means of transport, it is required to: (i) carry out a visual inspection of the truck and the goods to ensure that there is no lack of security; (ii) ensure that the vehicle can provide all certificates and markings, if necessary; (iii) check periodically the securing of the transported goods; (iv)  carry out loading, stowage and lashing only in the event of express agreement and prior to the presentation of the vehicle. 

The eternal question of who is responsible for incorrect stowage and/or lashing is answered in Article 20 of Law 15/2009, of November 11, on the Contract for Land Transport of Goods. This answer is still being worked on as it does not convince many of the agents involved in road transport, for whom the possible handling of the cargo by the carrier should be left without effect. The current response given by Law 15/2009 is clear: “The operations of loading the goods on board the vehicles, as well as those of unloading them, shall be carried out by the loader and the consignee, respectively, unless these operations are expressly assumed by the carrier before the actual presentation of the vehicle for loading or unloading. The same applies to the stowage and unstowage of the goods“.

In other words, if no express agreement is made prior to loading, the loader will be presumed to be responsible for securing of the goods. This is also ratified by RD 563/2017 and the subsequent clarifications of the “DGT” (Directorate General for Traffic), see our articles “Inspection of the securing of cargo on trucks, clarification by the DGT”  and “R.D. 563/2017, of 2 June 2017, Technical inspection of commercial vehicles”

Similarly, article 21 of Law 15/2009 reinforces this interpretation, considering that it will be the loader who must prepare the goods for transport, just as it will generally be the receiver of the goods who will be responsible for their rejection at destination, unless expressly agreed otherwise.

As we can see, the Guide is very extensive in its content and presents a very high degree of details, by which it attempts to stipulate a common terminology and criteria which will help to establish greater legal security in the sector, as well as it aims to improve the practices, training, and competitiveness of operators and shippers, and the purpose of all this to promote a more professional and safe road transport of goods.

The European “MOBILITY PACKAGE” and changes in the Land Transport Ordering Law (LOTT)

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After the intense legislative changes that the different regulations have undergone in recent months due to the new reality imposed on us by COVID-19, there are now several definitive changes in the area of land transport, adopted to renew and adjust national and European regulations to current needs.

Firstly, we must mention the “Mobility Package” approved on 9 July by the European Parliament, a package that includes two regulations and a directive whose main objective and purpose is to definitively achieve a single, fair and loyal European transport market, ensuring that all companies in the sector have the same competition rules regardless of their country of establishment.

In the first place, there is EU Regulation 2020/1054 of 15 July 2020 amending Regulation (EC) No 561/2006 as regards minimum requirements on maximum daily and weekly driving times, minimum breaks and daily and weekly rest periods and Regulation (EU) No 165/2014 as regards positioning by means of tachographs, which entered into force partially on 20 August, with the exception of Article 1. 15 and Article 2.12 which will enter into force on 31 December 2024, amending the regulation on driving and rest periods and positioning by means of tachographs, in order to generate clear, appropriate and proportionate rules which are uniformly enforced in order to achieve the strategic objectives of improving drivers’ working conditions and, in particular, to ensure fair competition between operators and contribute to road safety.

Furthermore, we have EU Regulation 2020/1055 of 15 July 2020 amending Regulations (EC) No 1071/2009, (EC) No 1072/2009 and (EU) No 1024/2012 in order to adapt them to developments in the road transport sector, which will enter into force on 21 February 2022 and which, among other things, aims to combat the phenomenon of so-called “letterbox companies” and to ensure fair competition and a level playing field in the internal market by ensuring that road transport operators established in a Member State have a real and continuous presence in that State by carrying out their activities from there. It is therefore necessary to strengthen the provisions relating to the existence of an effective and permanent establishment.

Finally, there is EU Directive 2020/1057 of 15 July 2020, which lays down specific rules with respect to Directive 96/71/EC and Directive 2014/67/EU for the carriage of drivers by road, and which amends Directive 2006/22/EC with respect to enforcement requirements and Regulation (EU) No 1024/2012. This directive essentially regulates the posting of workers in the inland road transport sector and for it to enter into force it must be accepted by the individual states before 2 February 2022, by which date they should have adopted and published all the regulatory and administrative measures necessary to ensure compliance with the directive.

In addition to the above, it is planned to amend the Inland Transport Regulation Act (LOTT) by modifying its content in order to bring the scales of penalties already laid down into line with the new offences provided for in the above-mentioned package of measures. Examples of this are offences relating to driving times and rest periods.

Furthermore, due to the international financial crisis resulting from the pandemic, on 15 September 2020 the Council of Ministers approved the urgent administrative processing of the amendment of the LOTT to include a penalty system against late payment in the road haulage sector. This is because many transport companies have seen their liquidity seriously affected since last March when the health crisis affected their regular traffic and it is clear that, if urgent measures are not taken, their economic situation may be aggravated by non-compliance with the payment deadlines agreed in transport contracts.

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.