The legal regime of civil liability in the Prestige case

The Faculty of Law of the University of Deusto, within the framework of the Master in Maritime Law, organised yesterday a workshop to analyse the “Prestige case”. It was a special event because took part on it part of the direct protagonists of the procedure. 
 
The workshop was attended by the environmental prosecutor of Galicia, Mr. Álvaro García Ortiz, with a conference titled “Prestige case, spills of hydrocarbons in the criminal jurisdiction”; the Captain and surveyor Mr. Fernando Cayuela who was nominated at the time by the Basque Government to intervene in the technical-judicial actions; the lawyer Luis Figaredo, who could not be present for reasons beyond his control but sent his presentation in writing under the heading “Legal strategy in the PRESTIGE case in the courts of the United States”; and our partner and colleague of Bilbao Mikel Garteiz-goxeaskoa, who developed an interesting talk about the “Legal regime of civil liability in the Prestige case”.
 
From AIYON Abogados we want to thank those responsible for the Master and the University of Deusto for their invitation to take part in this interesting dissertation.

National Civil Aviation Security Programme, February 1st 2019

The objective of the National Civil Aviation Security Programme (NCASP) is to establish general guidelines to comply with the basic standards of the civil aviation safety, in particular with regard to the organization, practices and procedures necessary for the protection and safeguarding of the passengers, crew, general public, ground personnel, aircrafts, airports and their facilities, preserving the regularity and efficiency of the national and international air traffic.

By means of the Resolution of 1st of February 2019, published on 27th of February 2019, the update of the public part of the National Aviation Security Programme has been adopted. This resolution approves the amendments and updates of the public part of the National Aviation Security Programme, which complies with the standards and recommended practices of the ICAO Annex 17 to the Convention on the International Civil Aviation and the Regulation (EC) No 300/2008 of the European Parliament and of the Council and the implemented Regulations.

The authority responsible for the civil aviation security will ensure the compliance with the measures contained in it at:

  1. All national airports, heliports and air navigation facilities, both those included and not included in the airport premises.
  2. All operators, including air carriers, providing services at the airports mentioned in point a).
  3. All entities applying aviation security standards that operate from premises situated inside or outside airport premises and provide goods and/or services to or through airports referred to in point a).

When the application of certain measures is not possible at some airports or heliports, alternative measures will be applied in order to ensure an adequate level of safety in accordance with additional provisions. In any case, these airports and/or heliports will submit a Security Programme for its approval by the appropriate authority.

Royal Decree-Law 23/2018, of December 21, of transposition of Directives in the area of trademarks, rail transport and package travel and linked travel services

On December 27, 2018, Royal Decree-Law 23/2018, of December 21, transposing directives on trade marks, rail transport and package travel and related travel services is published in the BOE (Spanish Official Bulletin).

Title I, which comprises the first article, contains the modifications derived from the transposition of Directive (EU) 2015/2436 of the European Parliament and of the Council of 16 December 2015, on the approximation of the laws of the Member States in the matter of trade marks. As a novelty, the Royal Decree-Law increases the number of signs that are subject to registration to those that capable of representation in any appropriate form using generally available technology, and thus not necessarily by graphic means, as long as the representation offers satisfactory guarantees to that effect.

The distinction between “trade mark” or “well-known or renowned trade” name disappears and the concept of “infringement of trade mark” is extended to the use of the sign as a trade name or similar designation. Furthermore, the Royal Decree-Law streamlines the registration renewal procedure.

Likewise, it gives the trademark owner the power to prohibit not only the direct acts of infringement of the trade mark by third parties but also the preparatory acts in relation to the use of packing and other means and the power to exercise the rights thereof against goods coming from third countries without being released into free circulation.

As for the competence to declare the nullity and expiration, this is now shared by the Spanish Patent and Trademark Office (directly) and the Courts (indirectly).

Title II, which includes the second and third articles, contains the modifications derived from Directive 2012/34 / EU of the European Parliament and of the Council, of 21 November 2012 (modified by Directive 2016/2370, of December 14) establishing a single European railway area. It achieves the completion of the single European Area, which had already been applied to international freight transport and international passenger transport, by extending the principle of open access to domestic rail markets.

In view of the potential entry of new actors as infrastructure managers, the Royal Decree-Law incorporates the category of “vertically integrated undertaking” that allows an infrastructure manager and a transport services operator without a different legal personality to coexist in the same company. This implies the need to introduce requirements for the independence of the infrastructure manager and shielding it from possible influences or conflicts of interest with the railway undertakings. This Title also includes the concepts of reasonable margin of profit and alternative route.

The need to register the railway company license in a Registry is eliminated. In addition, the State Agency in charge of Railway Safety has the obligation to communicate without delay the resolution on the license without it being possible to understand the license not approved by administrative silence.

In another order, the Royal Decree-lay includes manoeuvres (previously auxiliary), those services to be supplied in essential service facilities, the supplies in fixed installations and the loading and unloading of merchandise among those essential services and establishes the obligation to inform about the prices and conditions of access to service facilities not managed by the infrastructure manager.

Title III, article four, contains the modifications derived from the transposition of Directive (EU) 2015/2302 of the European Parliament and of the Council, of 25 November 2015, related to package travel and linked travel arrangements.

Among the main modifications of the Royal Decree-Law, it is worth mentioning the modification of the scope of application and the harmonized definitions. The protected subject becomes now the “traveller”, which is a broader than the concept of “consumer”. In addition, the scope of the package is extended, and the concept of “linked travel arrangements” is introduced, establishing which combinations of services can be considered as linked travel services.

In addition, the Royal Decree-law reinforces the obligation to provide pre-contractual information to the traveller. The organisers may not unilaterally alter the contract unless: (i) they have reserved that right in the contract, (ii) the alterations are insignificant and (iii) the traveller has been informed in a clear and understandable manner.

The Royal Decree-Law grants the traveler the power to terminate the contract when the proposed changes significantly alter the main characteristics of the travel services with the right to a refund of the price in 14 calendar days. The traveller in such instance may be required to pay an appropriate and justifiable termination fee to the organiser, which must meet certain criteria. On the other hand, it regulates under which conditions the price can be increased.

The organisers and retailers are required to provide a security for the refund of all payments made by or on behalf of the travellers insofar as the relevant services are not performed as a consequence of the organiser’s insolvency. If the carriage of passengers is included in the package travel contract, organisers shall also provide security for the travellers’ repatriation.

Reduction of speed limit for passenger and freight transport vehicles

The Spanish Official Gazette (“Boletín Oficial del Estado-BOE”) dated December 29th 2018 published the Royal Decree 1514/2018 of December 28th 2018, which amends the General Traffic Regulation (Royal Decree 1428/2003 of November 21st) and whose objective is to establish a reduction of speed limit of certain vehicles in traffic on public conventional roads.

This amendment is part of the strategy pursued by the administration which aims at minimizing the number of road accidents since, as underscored by the R.D. 1514/2018, two particularly important facts must be considered in addressing this issue: on the one hand, 75 % of accidents involving fatalities occur on these conventional roads, and, on the other hand, the inadequate speed is the concurrent cause of 20 % of the accidents.

One of the objectives of this amendment is, among others, to establish new speed limits for passenger and freight transport vehicles. More specifically, in the case of trucks, it standardizes the speed limit in 80 km/h on conventional roads, a limit common in most of the EU countries. The general limitation of 90 km/h for buses is due to the ongoing law accident rate of these vehicles, however, those that are not equipped with seat belts will not be allowed to excess 80 km/h.

The Royal Decree will come into force one month after its publication.

Royal Decree-Law 16/2018, measures to combat the illicit traffic of persons and goods

On 23rd of November of 2018, the Spanish Parliament confirmed the Royal Decree-Law 16/2018, of 26 October, which adopts certain measures to combat the illicit trafficking of people and goods in relation to the RHIBS boats used for that purpose, and which was published in the Spanish Official State Bulletin (BOE) of October 27, 2018. We already announced this Royal Decree -Law in our article “Amendment of the Organic Law on Counter Smuggling” dated 20 July 2018.

It is well known that there are criminal organizations that operate in Spain carrying out activities to smuggle merchandise as well as illegal transport of immigrants using the so-called RHIBS (rigid-hulled inflatable boats) or high-speed semi-rigid inflatable boats. On top of the problems posed by this traffic, per se illegal and punishable, unregistered vessels sailing at high speed in areas of fluid maritime traffic, often in the dark and without tracking devices or signage, constitute an additional risk for maritime safety. This is an activity that puts other vessels in serious danger due to the high possibility of accidents or collisions, apart from being a clear threat to the safety of certain port or coastal infrastructures.

In order to fight the smuggling performed in this type of high-speed boats, taking into consideration their technical characteristics, their ownership and the purpose of their use, they may be subject to seizure. It is possible to initiate the corresponding administrative sanctioning proceedings or appropriate criminal actions if they qualified as prohibited items for the purposes of the Organic Law 12/1995, of 12 December, on Counter Smuggling (https://www.boe.es/buscar/act.php?id=BOE-A-1995- 26836). Failure to comply with the conditions of the authorization of use and registration of these boats will determine the qualification of the vessel as a prohibited item and will permit the inspection and control of operators and vessels throughout the national territory, as well as in the territorial sea, inland waters and the contiguous zone.

As regards the rights, duties and freedoms of citizens, it does not affect the right to property since the prohibited item condition is only a consequence of the use of the vessels without their prior registration or in conditions other than those provided for in the granted authorization.

Sale contracts with the Incoterm DAP

In view of several cases managed by our law firm in which the use of the international commercial term DAP (Delivered At Place) has been of special relevance, in this article we will try to shed light on its origin and application.

As a global business organization, the International Chamber of Commerce (ICC) intends to provide the necessary practical tools to activate and simplify world trade through the use of standard terms that allow defining the rights and obligations assumed by of the parties to a sales contract, including those referring to the transportation of the goods from origin to destination. Incoterms or International Commercial Terms affect some relevant aspects of the commercial relation (sales contract) between seller and buyer, but they do not delimit the entire contents of said contract.

European and Spanish courts, to a greater extent the Spanish mercantile courts specialized in transport law, have been aware of the reality of the Incoterms and this is reflected in many resolutions. An example of this is the Judgment of the Court of Justice (EU) C-87/2010 of June 9, 2011, when it states: “In order to check whether the place of delivery is determined ‘according to the contract’, the national jurisdictional body that has knowledge of the matter must take into account all the terms and all the relevant clauses of said contract that clearly designate said place, including the terms and clauses generally recognized and enshrined by international commercial uses, such as Incoterms elaborated by the International Chamber of Commerce.”

DAP is one of the last terms incorporated in the publication “Incoterms 2010” issued by the ICC and, together with the term DAT, it replaces the previous DAF, DEQ, DDU and DES in order to adjust adequately to the current logistic reality. Consequently, as of 1st of January of 2011, date of entry into force of the aforementioned publication, the ICC reduced the Incoterms in use to eleven.

When the parties of a sales contract arrange the inclusion of the term DAP, they essentially agree, among other rights and obligations, that the seller-exporter will comply with its obligations by making available the cargo to the buyer-importer ready for unloading in the used means of transport  at the destination agreed in the contract; the buyer shall therefore be responsible for all expenses associated with the unloading of the merchandise from the means of transport used until destination, as well as for its clearance for importation. Since the seller will assume the organization and materialization of the transport to the place of destination agreed in the contract, he should make sure that this concrete place is duly specified in the sales contract since he runs with the risks of the cargo up to that point. Therefore, buying under DAP conditions will imply a lower risk for the buyer.

The DAP Incoterm is a multimodal term, which means that it can be used regardless of the means of transport used; therefore, its use is justified whether the goods are transported by road, sea, rail or air.

The knowledge and proper use of the terms of international trade is an indispensable part in international sales contracts and increasingly in those of national scope, since their national use has been extended for the benefit of transactions. It is a reality that has been gaining strength since the entry into force of the “Incoterms 2010”.

In short, receiving adequate advice at the time of closing and drafting sale contracts in relation to the Incoterms that best suit the needs of the parties, as well as in relation to the other relevant aspects to be agreed, is essential to protect the position of our clients and achieve the good end of any commercial transaction.

Article 8.1-a) of the Regulation (EU) 261/2004

In its judgment dated 12th September 2018, Case C-601/17, the EUCJ held that Regulation EU n. 261/2004, and in particular Article 8.1-a) thereof, must be interpreted as meaning that the price of the ticket to be taken into consideration for the purposes of determining the reimbursement owed by the air carrier to a passenger in the event of cancellation of a flight includes the difference between the amount paid by that passenger and the amount received by the air carrier, which corresponds to a commission collected by a person (or authorised agent) acting as an intermediary between those two parties, unless that commission was set without the knowledge of the air carrier, which it is for the referring court to ascertain.

The Court took into account that the objectives of Regulation EU n. 261/2004 are not only to ensure a high level of protection for passengers but also to strike a balance between the interests of passengers and those of air carriers.

In the light of those objectives, the Court considered that, while a commission collected by an intermediary from a passenger when a ticket was bought must, in principle, be regarded as a component of the price to be reimbursed to that passenger in the event of cancellation of the corresponding flight, its inclusion must nevertheless be subject to certain limits, in view of the interests of the air carriers which it affects.

 

New revision of the “Tax Lease”

At the end of July, the Court of Justice of the European Union (CJEU), the highest authority of the Community, annulled the sentence delivered by the General Court of the European Union (GC) on the so-called “Spanish tax lease system” or “Tax lease”.

Let us recall that the now annulled sentence was delivered by the CJEU in 2015 and it set aside a previous decision of the European Commission by means of which the Commission ordered the recovery of the tax aids granted by Spain to the maritime shipping companies between 2007 and 2011 for considering the State aids illegal and incompatible with the internal European market. The Commission reached this conclusion after a formal investigation which concluded on July 17th 2013 with the Decision, now annulled by the CJEU, on the existence of tax aids granted by Spain whose only beneficiaries were Economic Interest Groups (EIG) and their investors. This decision, needless to say, had an important impact on the affected Spanish naval sector and was appealed before the CJEU by the Spanish government and by numerous investors of the EIGs.

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Scope and delimitation of article 3.1.A) of European Regulation No. 261/2004, according to the CJEU

The Court of Justice of the European Union (CJEU) has recently ruled on the scope and delimitation of Article 3.1.a) of Regulation (EC) No 261/2004 of the European Parliament and of the Council of 11 February 2004, which establishes common rules on compensation and assistance to air passengers in the event of denied boarding and of cancellation or long delays of flights. Read more

Amendment of the Organic Law on Counter Smuggling

On July 13th 2018, the Council of Ministers approved the preliminary draft of Amendment of the Organic Law 12/1995, of December 12th, on Counter Smuggling, proposed by the Ministry of Finance – Customs and Excise Department .

The aim of this legislative initiative is to strengthen the fight against the criminal organizations involved in drug trafficking and tobacco and drug smuggling in Spain by declaring, for the purpose of the preliminary draft, the so-called RHIBS (rigid-hulled inflatable boat) as a prohibited type. The preliminary draft specifies that the types to be considered illegal are: a) rigid-hulled inflatable boats over 8 meters in length; b) or under 8 meters in length but with power greater than 150 kW (203.94 CV); c) and any other boats that might be suspected, on the basis of reasonable indications, to be used for committing or enabling the commission of an offence of smuggling. If the preliminary draft is adopted, the bodies responsible for suppressing these criminal activities shall be allowed to confiscate those high-speed boats that “are supposedly used” for committing smuggling-related criminal acts. Read more