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

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.

AIYON Abogados collaborates with the “ICLG Shipping Laws and Regulations, 2020”

Our partners of Madrid and Bilbao offices, Veronica Meana and Mikel Garteiz-goxeaskoa, have participated in the chapter dedicated to Spanish Law of the ICLG Shipping Laws and Regulations: 2020,publication which covers common issues in the area of Shipping law in forty jurisdictions.

Among these common issues are: the regulation of maritime casualties, cargo claims and passenger claims, the regulation of ship arrest and procedural issues such as the collection of evidence, judicial and other dispute resolutions methods applicable to maritime claims and the enforcement of court judgments and arbitration awards.

Please click here to have access to the publication:

 

Evaluation of Electronic Evidence

Nowadays, a large part of our relationships, both at social and professional level, develops through the use and management of new technologies; a reality that, beside generating a social revolution, has also brought about a revolution in the labour and legal environment in which we, lawyers, operate. Among other questions, we should ask ourselves: is the evidential value of an email equivalent to a read receipt and a registered letter?; are video surveillance recordings or publications on social networks valid as evidence for the Courts?; is a contract always valid when it is concluded through electronic means, be it emails, telephone messages or other means of communication?; questions that both companies and legal professionals ask themselves when a deal or contract is called into question, and whose lack of a firm answer leads to a certain legal insecurity in this respect.

When we refer to electronic evidence, we mean all the information with evidential value that has been transmitted by electronic means or that is included in it; that is to say, we can differentiate between two modalities of electronic evidence; on the one hand, we have the data that has been stored in a technological device, and, on the other hand, the information that has been transmitted through communication networks. 

We can confirm that the Courts generally consider an electronic evidence valid as long as there are no doubts about its veracity. And this is the complicating factor since, to this effect, there is a need to demonstrate the authenticity of these proofs in two basic aspects: that their apparent author is their real author and that the data they contain has not been altered. Moreover, for an electronic evidence to be regarded as valid, it must have been obtained in a lawful way. Therefore, the evidence will have to incorporate data of legality, ownership, necessity, and procedural admissibility to the procedure.

These requirements are more than justified since modifying an electronic evidence is a simple task for any user with basic computer knowledge. In fact, you can easily edit an attachment or alter an e-mail message with respect to its (sender, receiver, date, etc.), its content or the folder of its location. Similarly, people with high computer skills can access servers and digital platforms, public or private, obtaining the information they want, whether confidential documents, passwords, account numbers, contacts, etc. leaving no trace of their presence in our “clouds”. This reality often falls within the phenomenon of “cyber-attack”, a figure that we already referred to in the article published by our firm on our website in June 2019: “Piracy, a Reality in the Twenty-First Century”.

In the hypothetical case that the Court or one of the parties questions the authenticity of the evidence, it will be necessary to verify it by a study carried out by a computer expert. If it is not provided voluntarily, to access the evidence always requires judicial authorisation, which will be granted provided that the basic principles of regulation, suitability, exceptionality, necessity, proportionality, and speciality are respected with this intervention. Let us not forget that when a technological device is intervened in a judicial context there are several fundamental rights that may be affected, both of the victims or people linked to the event, as well as of third parties not connected to the conflict, such as the right to privacy, communications or data protection.

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

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. 

The importance of “Rebus Sic Stantibus” clause in a crisis scenario

In times of crisis such as the one Spain is currently facing due to the COVID-19, both personal and commercial circumstances may drastically change without someone or something being able to avoid it; exceptional circumstances during which individuals and companies are prevented from complying with any contractual obligation of any kind they are engaged in. In this scenario, the so-called “rebus sic stantibus” clause becomes important. 

The purpose of this clause is to cope with substantial amendments to conditions that might occur unexpectedly and unpredictably, and that will undoubtedly affect the contracting parties during the validity of the contractual relationship. These amendments, presumably, avert current conditions from those that favoured the contract signing under the agreed terms and make that the fulfilling of obligations and commitments arising from the contract cause extraordinary damages to one of the parties.

The health crisis that we are undergoing might serve us well as an example of substantial amendments to conditions; phenomenon we might observe in the transportation sector (cancellation of maritime line services, cancellation of flights, breach of charter contracts, paralysis of supply chains, suspension of orders, etc.) as well as in many other sectors of industry and commerce, which in general terms have been severely struck since the declaration of the state of alarm. A crisis that has been defined by the World Health Organization (WHO) as an absolutely unpredictable and unavoidable situation.  

In a situation like this, the “rebus sic stantibus” clause might open up possibilites for contract amendments on the basis of articles 7 and 1258 of the Civil Code, among others, in accordance with the requirements of good faith. This clause does not, under any circumstances, have recessive, resolutory or extinctive effects on the contract; the purpose of this clause is to set a framework of renegotiation of conditions of the contract between the parties in order to compensate, to some extent, for the generated imbalance.   

Although the legal regulation does not explicitly recognize this definition, the Spanish jurisprudential doctrine does as it is evidenced by the Judgements delivered by the Supreme Court in the previous national economic crisis. However, this clause does not apply automatically and in order to be able to apply the “rebus sic stantibus” clause, the jurisprudence lays down some essential requirements: 

  • – Extraordinary alteration of circumstances during the validity of the contractual relationship, in contrast to the circumstances existing at the time of the execution of the contract. 
  • A radical change in the obligations assumed by one of the parties that destructs the balance of the services in an exorbitant manner.
  • Everything is produced by the occurrence of absolutely unpredictable circumstances.

As we can observe when analysing the requirements for the application of the clause demanded by the jurisprudence, its historical application has been very restrictive. Nonetheless, the scenario of the economic crisis (for instance, the 2009 crisis) has extended its application since such circumstances may seriously affect the development of contractual relations.

Hence, the Supreme Court in its Judgment No. 214/2019, rec 3204/2016, of the Civil Chamber, First Section, April 5 2019, and in the Judgement No. 455/2019, of 18 July 2019, in order to accept the alleged amendments to contract, stipulates that these modifications must alter the relationship and the provisions of the contract, and must occur in an unpredictable and unavoidable manner. In other words, if the parties have been able to assume expressly or implicitly the risk that something might occur or they had to do so because this risk already existed at the time of executing the contract or it was reasonably predictable, the clause cannot be invoked. Nor can it be invoked in cases where the alteration is within the normal risks of the contract.

Similarly, in its Judgement of the First Civil Chamber No. 156/2020, rec 2400/2017 of, March 6 2020, the Supreme Court stipulates that, in order to be able to apply the clause, the referred contract must have duration equal to or more than one year, must be of a consecutive nature or of deferred execution. In fact, the Court assumes that it is unlikely that, in the case of contracts of less than one year, anything extraordinary and unpredictable, which would create a disproportion between the claims of the contracting parties, might occur. It remains to be seen if this aspect prevails in a situation such as that arising from the COVID-19 crisis. 

In addition to these two criteria, the Supreme Court considers that in order to effectively apply the “rebus sic stantibus” clause, the alleged situation cannot be contemplated or qualified as a habitual, normal or inherent risk or deriving from the contract (Judgement of the SC (Civil) Section 1, S 30-06-2014, rec 2250/2012).

If we analyse the actions of the Spanish Government, we can realize that it is adopting particular measures which seem to be inclined towards the effectiveness of the clause. An example of this is the Royal Decree Law 11/2020, of March 31, which exceptionally authorizes the suspension of electricity, natural gas and oil derivative products invoicing during the period of validity of the State of Alarm. 

As a conclusion in view of this difficult crisis situation that individuals and companies are facing, from AIYON Abogados, we advise to avoid, to the most possible extent, disputes and litigations in a situation that affects us all. Therefore, we recommend to preserve the contractual balance and respect the criteria of equity and good faith that should always underpin the agreements, promoting so the reestablishment of the balance in the relationship. For that reason we advise to foster agreements and negotiations between the affected parties to a contract, who can always count on the expert advice of our team of lawyers in pursuit of a satisfactory conflict resolution.      

AIYON Abogados cooperates with the Master’s programme of the IME (Spanish Maritime Institute)

AIYON Abogados maintains its commitment to cooperate with diverse institutions and associations involved in the progress and application of maritime law in Spain, as well as with Universities and educational institutions engaged in the formation of future professionals of the sector. This is evidenced by our already consolidated relationship with the IME (Spanish Maritime Institute) over the last several years, teaching subjects that belong to our area of expertise.

This year, due to the lock-down, the partners of our Madrid and Bilbao offices, Ms. Verónica Meana and Mr. Mikel Garteiz-Goxeaskoa, gave their annual lecture at the IME through video-conferencing system.  In particular, the lecture was focused on the applicable wreck removal provisions and the Nairobi Convention (not in force in Spain), as well as on the Civil Liability for Carriage of HNS goods regime under the 2010 Convention (still to enter into force).

We hope the students enjoy the lectures in the same way as our partners do, and we are grateful for IME’s support and effort that makes possible that the formation continues also during the COVID-19 crisis.

 

 

Current situation arising from Covid-19, developments in Mobility and Transport

One of the main reasons why the Spanish Government advocates maintaining the State of Alarm is to be able to guarantee restrictions on citizens’ mobility, both in and beyond their territory.

At national level, the Ministerial Order TMA/400/2020, of 9 May, which establishes the conditions to be applied in the first phase of the de-escalation of mobility, was approved. In order to guarantee the mobility of the Canary and Balearic Islands by means of Air Transport, it has been decided, among others, to lift the ban on regular commercial operations between islands, to establish a minimum of daily frequencies, always guaranteeing the safety distance, as well as to keep the Directorate General of Civil Aviation (DGAC) informed.

With regard to Railway Transport, either in suburban trains or in any other state-owned service, it has been agreed to gradually increase it until the effective recovery of 100% of its services and lines.

If we refer to the Maritime Transport of the Balearic and Canary Islands, specifically in the Canary Islands:

1) The disembarkation of passengers from RoRo passenger ships that provide regular services between the Peninsula and the Islands is prohibited, with the exception of drivers on board of ro-ro cargoes.

2) The Autonomous Community of the Canary Islands is authorised to lay down conditions for the provision of regular inter-island services or shipping lines.

3) The following vessels and boats may navigate between ports or points on the coast of the same municipality and nearby inhabited islands

– Those of tourist transport of passengers.

– Those devoted to practical trainings and courses.

– Those used for recreational/sports purposes by their owners or in nautical rentals.

If we focus on the Balearic Islands, and conditioned to guarantee health protection measures:

1) Transport on lines between the Peninsula and the Balearic Islands is authorised.

2) The embarkation/disembarkation of passengers and vehicles is permitted on RoRo passenger ships and passenger ships providing regular services on the inter-island maritime lines of the Autonomous Community.

3) Recreational sailing is permitted between points on the coast of the same municipality and nearby uninhabited islands.

On both islands, the above restrictions shall not apply to state ships or cargo ships, or to ships sailing for humanitarian, medical or emergency purposes.

At international level, three Ministerial Orders have been agreed which directly regulate entry to and exit from the country by the different means of transport (Order INT/396/2020, of 8 May, Order INT/409/2020, of 14 May and Order TMA/410/2020, of 14 May), and a fourth additional one (Order SND/403/2020, of 11 May).

Order INT/396/2020, of May 8, extending internal border controls and maintaining limited access, among others, for Spanish citizens and residents in Spain, cross-border workers, persons traveling for exclusively work purposes. It is important to note that these restrictions will not affect the transport of goods. Under the heading “transport of goods” we must also consider the crew members of ships in order to ensure the provision of maritime transport services and fishing activities, and the aviaiton personnel necessary to carry out commercial air transport activities.

The restrictions set out in this order are complementary to those already established at land borders and at the external borders of ports and airports (originating in countries outside the Schengen area).

Order INT/409/2020, of 14 May, extending the criteria for the application of a temporary restriction on non-essential traveling from third countries to the European Union and associated Schengen countries for reasons of public order and health, as a result of the health crisis caused by COVID-19.

Entry shall be denied on grounds of public policy and public health in connection with the health crisis caused by COVID-19 to any third-country citizen, subject to the proposed exceptions which include habitual residents in the European Union, the Schengen associated States or Andorra, cross-border workers or personnel engaged in transport of goods in the course of their work (ship and flight crews). This shall not apply at the land border with Andorra or at the checkpoint of persons with the territory of Gibraltar.

The Order TMA/410/2020, of May 14, which limits entry to aircrafts and passenger ships restrictions on mobility of citizens through designated points of entry with the capacity to respond to public health emergencies of international importance, updated by Order TMA/415/2020 of May 17, which aims to designate the ports and airports that will be enabled as the only point of entry into Spain, for passenger flights from any airport located outside Spanish territory or for passenger ships or passenger vessels and ROROs that provide a regular line service originating in any port outside Spanish territory (provided that the passengers transported are not the drivers of the road vehicles). Specifically, the airports of “Sevilla”, “Menorca”, “Ibiza”, “Lanzarote-César Manrique”, “Fuerteventura”, “Tenerife Sur”, “Alicante-Elche” and “Valencia”, and the ports of Barcelona, Bilbao, Las Palmas de Gran Canaria, Málaga, Palma de Mallorca, Tenerife, Valencia and Vigo will be operational.

These limitations do not apply to State aircrafts or vessels, aircrafts making stopovers for non-commercial purposes, exclusive cargo flights or vessels, or positional, humanitarian, medical or emergency flights or vessels.

Bearing in mind, in any case, the Order SND/403/2020, of May 11, by which all persons coming from abroad will be quarantined for 14 days after their arrival; order that came into force on May 15.

Maritime transport

With regard to the maritime transport sector, there have been abundant Ministerial Orders and recommendations of the Ministry of Transport, Mobility and the Urban Agenda since the State of Alert was decreed on 14 March. Therefore, we have decided to emphasise two Ministerial Orders, Order TMA/419/2020, of 18 May, and Order TMA/374/2020, of 28 April, for their relevance.

If we delve into its content, the Order TMA/419/2020, of 18 May, which updates the measures in general  management of maritime navigation adopted during the state of alarm  to deal with the health crisis caused by the COVID-19 to the de-escalation process. It presents restrictions on the entry of ships into Spanish ports (i) for cruise ships from any port; (ii) for foreign ships or recreational vessels that do not have their port of stay in Spain (with exceptions).

On the other hand, it regulates the management of ballast water and ship sediments, the procedures to be followed for the transfer of ships, whether for repair or maintenance purposes or for sale and purchase, and the transfer of ships between ports. In addition, in its Single Repeal Provision it repeals certain Orders and modifies Order TMA/258/2020, of 19 March, by rewriting the article on titles whose validity is extended and on inspection activities.

On the other hand, Order TMA/374/2020, of 28 April, which establishes the documentation with which the crew members of the vessels may prove their condition in order to facilitate their movement to ensure the provision of maritime transport services, due to the health crisis situation caused by the COVID-19. The order stipulates the necessary documentation to allow changes of crew in Spain and the return to their countries of residence or boarding another vessel calling at a Spanish port. Specifically:

– Certificate of Competence or Seafarers’ Identity Card or Discharge Book

– Employment agreement or letter of appointment. This documentation shall include at least the name of the vessel and its flag, the port where the vessel is located and the estimated date of embarkation/disembarkation.

Likewise, the Ministry of Transport, Mobility and Urban Agenda has published preventive recommendations to be implemented in maritime passenger stations and on board of the ships for the restart of passenger traffic in order to prevent and minimize the risks of possible COVID-19 infections when passenger traffic is re-established.

Maritime Administration Inspection activities / Administrative Certificates

Due to the exceptional situation generated by COVID-19, the Administration has taken action by extending the validity of certain administrative titles and suspending significant part of its inspection activities.

The titles whose validity is extended if they expire during the State of Alarm are: (i) professional cards and certificates issued to seafarers, as provided for in international conventions and national regulations; (ii) certificates and documents issued to ships governed by international instruments of the IMO, ILO and the European Union; (iii) certificates and documents issued to ships and vessels operating services, as provided for in national regulations; (iv) certificates of maritime training issued to seafarers in accordance with the STCW Convention and health regulations; (v) certificates of medical fitness issued to seafarers in accordance with the STCW Convention and national regulations; (vi) certificates of medical fitness issued to seafarers in accordance with the STCW Convention and national regulations; (vii) fitness certificates expired during the State of Alert.

In addition, the conduct of scheduled inspections and surveys by the Maritime Administration, as provided for in the Regulations on Inspection and Certification of Civilian Ships, has been suspended, unless they result from emergency situations, and the conduct of periodic inspections of foreign ships, with the exception of those to (i) ships subject to a report or notification by another Member State; (ii) ships which cannot be identified in the inspection database; (iii) ships which have been involved in a collision, grounding or stranding on their way to port; (iv) ships which have been accused of violating allegedly the provisions in force concerning the discharge of hazardous substances or effluents; (v) ships which have manoeuvred in an erratic or unsafe manner.

Plan for Transition towards a “New Normality” – RDL 16/2020, of April 28

Within the State of Alarm which continues in force in Spain, a plan for transition towards a “new normality” or “de-escalation” of confinement that currently is living the society and that affects, to a great extent, small and medium-sized companies, was approved last Saturday, April 28.

The plan has been divided into four differentiated phases (from phase 0 to phase 4) that will start on May 4. These phases, as a general rule, will last fifteen days each and will follow a preconceived schedule but, in case of a new resurgence of the pandemic, might be modified or even revoked. In fact, the criteria established by the Government as a marker to advance from one phase into the following one are the health-system capacity, the epidemiological situation of the area, collective protective measures and socio-economic and mobility data. The State of Alarm confers on the central Government power of control over “de-escalation”, although meetings with the Autonomous Communities will be maintained to establish criteria adapted to each area.

If we focus on the area of Administration of Justice, on April 29, the Royal Decree-Law 16/2020 issued on April 28, regarding the procedural and organizational measures to deal with the COVID-19 in the field of the Administration of Justice, was published. The RDL comes in force on April 30 and incorporates:

Impulse to Recover Judicial Activity and Digital Transformation   

With the aim to resume the ordinary court activity and in order to address the expected increase of litigations which will arise as a consequence of the health crisis we are undergoing, the creation of judicial units of cases deriving from the COVID-19 is expected and August 2020 will be, exceptionally and partially, enabled as a working month, being the working period established between August 11 and August 31, excluding Saturdays, Sundays and public holidays.

With this regard, there are several Bar and Procurators Associations (among them the Bar Association of Biscay) that have shown their concern regarding the decision to enable a part of August for judicial practices. In fact, they have already revealed their total opposition to this decision, since they consider that it violates the right to rest, underscoring the implicit sacrifice that this decision will entail for the professionals working in the justice system when there is no evidence that this decision will be efficient against the collapse of the Courts.

Similarly, it will be permitted to assign the regionally appointed Judges preferentially to matters arising from the pandemic. It will also be permitted that the officers of each court, public prosecutor’s office or tribunal perform their duties in other units of the same locality and jurisdictional, and lawyers in the Administration of Justice in training, those who have passed the competitive examination but have not yet joined in the courts as official lawyers, are authorized to carry out substitutions and tasks of reinforcement.

Lastly, the use of digital identification and signature systems in the administration of justice will be enabled and improved to ensure that the procedural management systems of the courts and tribunals allow telework of the professionals and the parties concerned.

Procedural Measures  

After the suspension of the terms and procedural deadlines on March 14, with the necessary exceptions, the RDL determines to restart the calculation of the time limits, not taking into account the time that has elapsed prior to the declaration of the State of Alarm. Therefore, the time limits will be calculated again from the beginning, being the first day of the calculation the first working day following the day on which the State of Alarm ends.

It is also agreed to extend, for a period equal to that determined by law, the deadlines for filing appeals against sentences and other resolutions that end the process and are notified during the suspension of the deadlines established by the RD nº 463/2020 of March 14, as well as those that are notified within 20 working days following the lifting of the suspended procedural deadlines, allowing thus these to be filed in stages. These deadlines will be extended by a period equal to that established for the announcement, preparation, formalization or filing of the appeal in its corresponding regulatory law. The provisions will not apply to procedures whose deadlines were exempted from suspension in accordance with the second additional provision of the RD nº 463/2020 of March 14.

On the other hand, and without prejudice to the preferential nature of other procedures recognized in accordance with procedural laws, the following procedures will be processed in a preferential manner:

  1. – The proceedings or files of voluntary jurisdiction in which the measures referred to in article 158 of the Civil Code are adopted, as well as the special and summary proceedings provided for in articles 3 to 5 of this Royal Decree-Law.
  2. – In the civil jurisdiction order, the processes deriving from the lack of recognition of the legal moratorium on the mortgages of habitual residence and of properties affected to the economic activity by the creditor entity, the processes derived from any claims that could be raised by the tenants due to the lack of application of the legally foreseen moratorium or of the obligatory extension of the contract, as well as the bankruptcy procedures of debtor who is a natural person and that does not have the condition of entrepreneur.
  3. – In the contentious-administrative jurisdictional order, the appeals lodged against the acts and resolutions of the Public Administrations denying the application of the aid and measures legally provided for to relieve the economic effects of the health crisis produced by the COVID-19.
  4. – In terms of social jurisdiction, proceedings for dismissal or termination of contract, those arising from the procedure to declare the duty and form of recovery of working hours not worked during the paid leave provided for in Royal Decree Law 10/2020, of 29 March, which regulates recoverable paid leave for employees who do not provide essential services in order to reduce the mobility of the population in the context of the fight against COVID-19; the procedures for the application of the MECUIDA plan under article 6 of the Royal Decree-Law 8/2020 of 17 March; the procedures for individual, collective or ex officio challenges to temporary employment regulation proceedings on the grounds regulated by articles 22 and 23 of Royal Decree-Law 8/2020 of 17 March; and those for the implementation of distance working or the adaptation of the working conditions provided for in article 5 thereof.

In accordance with the procedural modality of Collective Conflict, claims filed regarding suspensions and reductions in working hours, adapted in application of the provisions of article 23 of Royal Decree Law 8/2020, of 17 March, will be processed, when these measures are applied to more than 5 workers. The representative commission provided for in the labour regulations to mitigate the effects of the COVID-19 in relation to temporary employment regulation proceedings will also be entitled to promote this collective conflict procedure.

In relation to family law, a special and summary procedure will be regulated “ex novo” for the resolution of issues relating to family law directly arising from the health crisis, articles 3 to 5 of the present RDL. It will last throughout the State of Alarm and up to three months after its termination.

With regard to the Civil Registry, a provision is introduced to ensure that marriage files that have already been processed and suspended due to confinement do not have to be processed again (the idea is that people who have planned their wedding and have not been able to celebrate it will not face further delays. In other words, the “vacatio legis” of Law 20/2011 of 21 July on the Civil Registry is amended and extended until 30 April 2021.

Increase of Bankruptcy Proceedings in Commercial Courts

With regard to the bankruptcy and corporate area, new measures are added to those already adopted by the Royal Decree Law nº 11/2020 of 31 March, with three objectives: a) economic continuity of companies and professionals and the self-employed, b) to encourage the financing of companies to meet their temporary need for liquidity c) to avoid the collapse of the Commercial Courts.

The measures adopted are as follows:

  1. – The duty to request the opening of the liquidation phase is postponed when, during the term of the agreement, the debtor becomes aware of the impossibility of complying with payment commitments and obligations contracted after the approval of the agreement.
  2. – The modification of the agreement or the extrajudicial payment agreement or the approved refinancing agreement is facilitated. In addition, the filing of a new application is permitted without the need for a year to elapse from the filing of the previous application.
  3. – Claims arising from financing commitments or the provision of guarantees by third parties are classified as claims against the estate in the event of liquidation. The claims of persons especially linked to the debtor in insolvency proceedings that may be declared within two years of the declaration of the State of Alarm shall be classified as ordinary claims.
  4. – A series of rules are established to speed up the bankruptcy process.
  5. – The suspension of the duty to apply for a declaration of bankruptcy is extended until 31 December 2020.
  6. – It is foreseen that for the purposes of the legal cause for dissolution due to losses, those of the current financial year will not be taken into account.
  7. – Article 43 of Royal Decree Law 8/2020 of 17 March is repealed.

Safety at Work

During the term of the State of Alarm and up to 3 months after its end, the celebration of procedural acts is established through the telematic presence of the intervening parties to guarantee the protection of health and minimize risks. However, in the Criminal Jurisdictional order, the celebration of trials by means of telematic presence is excluded in the cases of procedures for serious crimes, in which the physical presence of the accused is necessary.

Likewise: (i) public access to all oral proceedings is limited; (ii) the public will be served by telephone or e-mail and, only if necessary, in person but always by appointment; (iii) medical – forensic reports may be made on the basis only of the existing medical documentation available to them; (iv) lawyers are exempted from  wearing of togas in public hearings; (v) morning and afternoon sifts are established to prevent overlapping of workers, which allows trials and hearings to be held not only in the morning but also in the afternoon.

In a nutshell, this Royal Decree Law 16/2020, of April 28, extensively develops, with a relatively sound approach, diverse areas which are of vital importance for the impulse and development of tasks related to justice and which, undoubtedly, will lead to recovering normality as soon as possible.

The Spanish Congress of Deputies authorized a new extension of the State of Alarm until the 26th of April

At the last plenary session, the Congress of Deputies authorized the extension of the State of Alarm enacted in the Royal Decree 463/2020 of March 14th, which declares the state of alarm to manage the health crisis situation caused by COVID-19. 

This extension will be prolonged until 00:00 hours on Sunday April 26th and will maintain the same conditions established in the Royal Decree 462/2020 of March 14th, but it is subject to further extensions if necessary.

The Government has also decided to extend the controls at the land borders with France and Portugal for a further 14 days. The extension will be in force until midnight on Saturday April 25th.

With regard to the last 15 days, some differences can be observed with respect to the conditions and restrictions to which we are subjected. For example, transport recovered, since Monday 13th, the service level of the second week of confinement, established by Order 273/2020 of the Ministry of Transport, Mobility and Urban Agenda of March 23rd, which issued instructions for the reduction of passenger transport services. On the other hand, the Ministry of Justice, the General Council of the Judiciary, the Public Prosecutor’s Office and the Autonomous Communities agreed to maintain essential services in the Administration of Justice. The telematic presentation of documents, limited since March 18th, will be authorized from today, April 15th. 

Despite this, each competent authority in each Autonomous Community will specify which documents can be submitted telematically. For example, in Biscay, the distinguished Lawyers Association of Biscay has specified that its telematic platform “JUSTIZIASIP” does not allow, for the time being, the submission of initial documents of a procedure; thus only documents relating to legal proceedings already in progress that are not linked to interrupted or suspended terms or deadlines may be submitted, until they give rise to procedural actions that initiate procedural time periods that must be suspended. 

To ensure the proper functioning of the Administration of Justice during the state of alarm, in addition to determining staffing levels of headquarters and courts to cover essential services and those that are available, the following provisions have been adopted, among others:

– Registration of births and deaths in the shortest possible time, as well as the management of non-essential services of the Civil Registry (as far as the resources permit it). 

– Registration of documents submitted electronically to the judicial and public prosecutor’s offices and their distribution to the competent judicial bodies. This shall not affect the suspension of procedural deadlines. 

– Services that are considered essential will be provided. 

– Management of all non-essential procedures, as far as the resources permit. 

This decision shall not affect the fact that the procedural time bar, as well as the prescription and expiration time bar, remains suspended.