Practical Application of the Law on Late Payment in Land Transport (Law 13/2021)

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The partial amendment of the Land Transport Law for the purpose of combating late payment in the field of road freight transport by application of the content of Law 13/2021, of 1 October, arose, among other reasons, from the need to solve the problem of late payment of commercial transactions in Spain, which amounts, let us remember, to an average of 90 days and is therefore in breach of the European regulations applicable to these transactions.

With effect from 3 October 2021 and on the general basis that any agreement on payment terms longer than 60 days can be considered null and void, even in companies belonging to the same group, this law creates a new type of offence providing for penalties for those cases in which the legal maximum payment limit is not respected and therefore does not comply with the provisions of Law 13/2021 (article 4) and the Land Transport Law (article 140).

Having said that, we can currently state that this regulation is already having tangible practical consequences, as in Aiyon we have had several consultations related to administrative sanctioning proceedings initiated by the General Directorate of Land Transport against road transport companies, in their capacity as subcontractors of land transport with other effective carriers.

Thus, following inspections carried out locally by the Administration in certain land transport companies, it has been observed that their contractors did not pay the invoices issued for their services within this 60-day period, which is why the inspection has initiated infringement proceedings against the debtors, warning them of this breach of the applicable regulations.

Administrative sanctioning proceedings which, although they can be defended, do not leave much room for refuting the position of the administrative inspector since, when this legal limit is exceeded within the different parameters for calculating the sixty days, little can be said in defence of the debtor’s position.

The fact that there is an agreement, express or implied, between the two carriers involved to relax this time limit upwards, or that there is a prior dispute between shipper and contract carrier that prevents the contract carrier from charging for the carriage, which could be considered a reason to condition the payment of its service to the actual carrier, we do not consider these to be valid excuses in law to justify the use of a longer payment period.

Once the accounts of a transport company have been randomly inspected, or after a complaint by the creditor, the Directorate General for Land Transport will notify those companies that have paid invoices outside the legal deadline of the initiation of the corresponding sanctioning procedure against them, proposing penalties which, in our experience, have ranged between € 2, 001.00 and € 3,000.00  (depending on different factors such as the excess over 60 days, the number of invoices pending payment, etc.), being classified as very serious offences under the Land Transport Law.

In view of the above, it is important to remind operators of the importance of respecting this regulation and of always regularising outstanding payments to road hauliers within the non-mandatory legal deadline (60 days), establishing internally adequate measures to avoid being sanctioned now or in the future.

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Reform of Civil Cassation following the entry into force of the Royal Decree-law 5/2023

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The Royal Decree-Law 5/2023 of 28 June adopting and extending certain measures in response to the economic and social consequences of the war in Ukraine, to support the reconstruction of the island of La Palma and other situations of vulnerability, to transpose European Union Directives on structural modifications of commercial companies and the reconciliation of family and professional life for parents and carers; and on the implementation and enforcement of European Union law, which came into force on 29 July 2023, introduces, among others, a series of modifications in the regulation of civil proceedings, especially in the regulation of civil cassation, the purpose of which is to make the processing of appeals more agile and to relieve the Supreme Court.

One of the main changes is the elimination of the extraordinary appeal for procedural infringement, as separating the reporting of procedural infringements from substantive infringements is not considered operative. Although RDL 5/2023 does not include a provision expressly repealing articles 468 to 476 and the sixteenth Final Provision of the Spanish Civil Procedure Act regarding the extraordinary appeal for procedural infringement, the fact is that these provisions must be understood to be repealed due to their manifest incompatibility with the new regulation about cassation’s appeal and in accordance, moreover, with the sole general repealing provision of RDL 5/2023.

On another note, the new regulation about cassation’s appeal includes the limitation of appealable decisions to two, on the one hand, “judgments that put an end to the second instance dictated by the Provincial Courts when, in accordance with the law, they must act as a collegiate body” and, on the other hand, “orders and judgments handed down on appeal in proceedings on the recognition and enforcement of foreign judgments in civil and commercial matters under international treaties and conventions, as well as under European Union regulations or other international rules, when the power to appeal is recognised in the corresponding instrument”.

A limitation is also introduced in relation to the means of access to the appeal, specifically, these channels of access are reduced to two: the first channel requires the appeal to have a cassation interest and the second requires the appealed decision to have been issued for the protection of fundamental rights that can be protected even when there is no cassation interest, thus eliminating the previous channel of access to appeal for an amount greater than 600,000 euros.

On the other hand, according to the modifications introduced by RDL 5/2023, there is a cassation interest when the contested decision infringes the case law of the Supreme Court, when it resolves issues on which there is contradictory case law of the Courts of Appeal (“Audiencias Provinciales”) or when rules are applied on which there is no case law of the Supreme Court, in the latter case removing the requirement that the rule on which there is no case law has not been in force for more than five years.

Likewise, it will also be possible to appreciate a notorious cassation interest when the contested decision has been issued in a process in which the disputed issue is of considered of “general interest”, that is to say, when the issue potentially or effectively affects a large number of situations, either in itself or because it transcends the case that is the object of the process.

This new regulation of the appeal in cassation eliminates the possibility to challenge the admission or rejection of the appeal. The Admissions Chamber of the Supreme Court will simply limit itself to admitting the cassation by means of an order expressing the reasons why it must rule on the issue or issues raised in the appeal or, where appropriate, to rejecting the cassation by means of a succinctly reasoned order which will declare, where appropriate, the finality of the appealed decision.

The need to hold a hearing when requested by all the parties is abolished, with the Court now having the power to decide on the pertinence of holding such a hearing for the better delivery of justice.

Another novelty is the incorporation into the Civil Procedure Act of the formal requirements that had been demanded in the Agreements on criteria for the admission of appeals in cassation and extraordinary appeals for procedural infringement, of January 2017, criteria such as, the identification of the channel of access and the rule infringed, the articulation of the appeal in grounds or the summary of the infringement, among others.

Likewise, among other questions of format introduced by RDL 5/2023, the First Chamber (i.e., Civil Docket) of the Supreme Court is empowered to determine the maximum length of the cassation appeal and the opposition brief by means of an agreement that must be published in the Official State Gazette (“BOE”).

It also establishes the possibility that appeals in cassation may be resolved by means of an order in those cases in which the Chamber considers that the consolidated doctrine reported has indeed been infringed. By means of this order, the case will be returned to the court of origin so that, in accordance with the jurisprudential doctrine, it may issue a new decision.

Finally, and in accordance with the transitional regime, it should be clarified that this new regulation will only apply to appeals lodged against decisions handed down after its entry into force.

Royal Decree 186/2023 and Situations of Anchoring of Tankers or Other Vessels Carrying Substances Harmful to the Marine Environment, when They Are Not Bound for Any Port or Terminal Located in Spain

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Pursuant to its Sixth Final Provision, Royal Decree 186/2023, of 21 March, which approves the Regulation on the Organisation of Maritime Navigation (which is inserted below), came into force on 11 April 2023, with the exception of Chapters II, III and IV thereof, on the regime applicable to the dispatch of vessels, the role of dispatch and manning, and the enrolment and disenrolment regime of crew members, respectively, of the Regulations on the Organisation of Maritime Navigation, which will enter into force on 1 July 2024.

As stated in Article 2, Maritime Navigation Regulation is applicable both to civil ships and vessels flying the Spanish flag, as well as to those flying foreign flags when sailing in maritime areas in which Spain exercises sovereignty, sovereign rights or jurisdiction (reference to the United Nations Convention on the Law of the Sea / UNCLOS), with the exception of warships, other State ships and vessels, ships and vessels of the State Security Forces and Corps and of the Customs Surveillance Service.

Having determined its scope of application and entry into force, we will now focus on the regime of this Royal Decree in relation to the use of Spanish maritime spaces outside the territorial sea (i.e. the contiguous zone or the exclusive economic zone) as a place of anchorage by product tankers, chemical tankers, gas tankers or other vessels carrying substances polluting the marine environment and not bound for any port or terminal located in Spain, as set out in Articles 44 and 45, within Chapter VIII of the Royal Decree.

Article 44 states that this type of vessel, when transporting substances that pollute the marine environment and which, without having a port or terminal located in Spain as a destination or discharge point for all or part of their cargo, intend to use Spanish maritime spaces outside the territorial sea as a place to anchor, while awaiting orders, instructions or any other similar circumstance, must have the express authorisation of the corresponding Harbour Master.

In other words, the above types of vessels in such circumstances, prior to carrying out the anchoring operation, must have formulated and submitted a request to this effect (the content of which shall be as provided for in paragraph 2 of this Article 44, such as estimated time of arrival, port of origin, type of cargo, etc.) and obtain the express authorisation (not tacit) of the corresponding Harbour Master’s Office.

The Harbour Master may authorise or refuse such a request, taking into account the conditions under which the anchoring will be carried out, as well as the avoidance of damage that could result from an accident involving this type of vessel.

Once an authorisation to anchor has been granted, the ship shall (i) anchor in the geographical position indicated, (ii) undergo, where appropriate, a safety inspection on arrival at the anchorage, the result of which may lead to the adoption of precautionary measures or even the revocation of the anchoring authorisation.

Likewise, if it is desired to remain at anchor, the vessel must hire a tug with sufficient pulling power in relation to the vessel in question, which must be equipped with pollution control equipment, which must be kept permanently operational for the duration of the stay. Furthermore, the propulsion equipment must be kept in immediate operation at all times, the fire-fighting system line must be pressurised and, in addition, the regulatory anchoring signals must be maintained, and all deck and bridge lights must be illuminated throughout the night.

Furthermore, a vessel wishing to remain at anchor must check its geographical position periodically and record it in the logbook every hour. Along these lines, the captain must inform the Rescue Coordination Centre every four hours of the exact anchoring position and of any new development that may affect the safety of the vessel and crew, especially when the anchoring position is altered for external reasons, such as weather conditions. Obviously, the duty is also imposed to maintain the corresponding bridge and engine watches, checking the starting system in each of them. In particular, there is a requirement that at least one suitably qualified officer and one suitably qualified crew member must be on the bridge at all times.

It is also forbidden to carry out any cargo transfer, tank cleaning or repair work on machinery and deck without the corresponding authorisation while at anchor, given the high risk of pollution to the marine environment that such operations would entail.

Finally, it is imposed that all changes and movements of the vessel’s crew during its stay in the anchorage shall take place for justified reasons and with the prior authorisation of the Harbour Master.

Protocol to the Agreement on the International Occasional Carriage of Passengers by Coach and Bus (Interbus Agreement)

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As we know, the policies of the European Union and its contracting states always and everywhere promote international passenger transport in and through Europe.

It is a fact that European tourism has been increasing for years and continues to grow. The contracting parties to the Protocol to the Agreement on the International Occasional Carriage of Passengers by Coach and Bus have therefore extended the scope of application of the Interbus Agreement to include regular services and special regular services under certain conditions, as it has hitherto covered only occasional services.

This new Agreement has been negotiated between the European Commission and other fourteen third countries outside the European Union, thus regulating transport between the EU and these signatory countries.

The main features of the Agreement include the following:

  1. The liberalisation of regular services, and regular services subject to authorisation, should apply only to services to or from the contracting party of establishment of the road transport operator in which his vehicles are registered.

As a general rule, regular services shall be available worldwide, subject to compliance with the obligation to settle where appropriate.

  1. Regular or scheduled services to and from the same Contracting Party may not be operated by carriers established in another Contracting Party.
  2. They are extended to regular services, which are services that ensure the transport of persons with a specified frequency and route. These services can pick up and set down passengers at predetermined stops.

Special regular services mean regular services which provide for the carriage of specified categories of passengers to the exclusion of other passengers. These services shall include, inter alia, carriage to and from the place of work for workers and carriage to and from the educational institution for school pupils and students.

  1. The principle of non-discrimination on the grounds of nationality or place of establishment of the transport operator, and of the origin or destination of the coach or bus, and/or of the service provided, is prioritised as a basis for the provision of international road passenger transport services.
  2. It is necessary for the Contracting Parties to apply uniform social measures concerning the work of crews of buses and coaches engaged in international road transport, which are governed by the rules enshrined in the Interbus Convention, to which this Protocol should refer.
  3. The technical conditions applicable to buses and coaches operating international services between the contracting parties should be harmonised and should be governed by the rules enshrined in the Interbus Agreement.
  4. Carriers established in the European Union require an authorisation issued by the competent authority of the Member State of origin or destination of the transport.

Authorisations shall be issued in the name of the carrier and shall not be transferable.

The maximum period of validity of the authorisations shall be 5 years, and the minimum content of the authorisation shall include aspects such as: the type of service; the route; the period of validity of the authorisations; the stops and timetables.

These modifications are just some of the new guidelines for action implemented by the European Union to continue promoting cultural exchanges between the contracting parties to this

Damage to Cargo During Carriage by Sea Covered by CMR Consignment Note

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The International Convention for the Unification of Certain Rules Relating to Bills of Lading of 25 August 1924, better known as the Hague-Visby Rules, is the law applicable to contracts of carriage made “in a bill of lading or any similar document serving as a document of title for the carriage of goods by sea“, which means that its provisions apply to claims arising out of any damage or loss, preservation, stowage, carriage, supervision and discharge of cargo.

On the other hand, the Instrument of Accession of Spain to the Convention on the Contract for the International Carriage of Goods by Road (CMR), done in Geneva on 19 May 1956, shall apply to claims arising from land transport contracts formalised under the CMR document. For national transport, Law 15/2009, of 11 November, on the contract of carriage of goods by land, shall be applicable.

Both regulations provide for different regulations in their fields of application which, apart from general features such as the limitation of the carrier’s liability, are quite different.

This does not seem to pose a problem when both means of transport are not combined; however, the issue becomes more complicated when we find cases, much more common than might be imagined, in which different means of transport coexist to carry out the transport of certain goods under a single transport document (land – air – land // land – maritime – maritime, etc.).

In this specific case we will analyse, we are dealing with the transport of goods on a lorry, loaded in a factory in Burgos and bound for Cheltenham (United Kingdom), in which the need arises to load it onto a ferry from Santander to Portsmouth (United Kingdom) to complete the transport by sea crossing the Cantabrian Sea. There is a maritime transport, but this international transport contract is documented in a consignment note governed by the CMR Convention. In this case, which law will be applicable to damage occurring during the maritime transport phase, the CMR Convention or the Hague-Visby Rules?

Article 2.1 of the CMR Convention stipulates that in cases where one of the stages of a carriage covered by a CMR consignment note is carried by sea, without freight interruption, i.e. without unloading the goods, the CMR Convention will apply (complete transfer of the load with the truck or trailer); however, this regulation will not apply when the freight is interrupted, as in the case of a container, initially loaded on the platform of a truck, which is then loaded on board a ship, and subsequently reloaded onto another truck trailer.

Nor does the CMR Convention apply where it is proved that, in a carriage under a CMR consignment note without freight interruption, damage has occurred during the maritime phase; in this case, the potential liability of the road haulier will be determined in the way liability has been established for the maritime carrier.

In conclusion, for the law governing the non-road means of transport, in our case the Hague Visby Rules, to apply, it is required that the loss or damage was not caused by an act or omission of the road transport operator, and that such loss or damage could only have occurred during the carriage of the road vehicle on board the ship.

In any case, the identification of the applicable law is of vital importance, especially in terms of statutes of limitation and/or lapse of time, protests, or actions to be taken. Each case should be studied with the support of experts in the field.

Royal Decree-Law 14/2022 of 1 August and its most significant developments in the field of air transport

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Title II of this Royal Decree-Law contains measures on air transport that “counteract”, two years later, some of the measures that were implemented to reactivate the economy in the face of the impact of COVID-19 established by RDL 26/2020 of 7 July.

One of these measures that were implemented as a result of RDL 26/2020 of 7 July was Article 3, which included the procedure for the incorporation into Spanish domestic law of the Operational Guidelines adopted by the European Aviation Safety Agency (EASA) and the European Centre for Disease Prevention and Control (ECDC) for the management of air passengers and aviation personnel in relation to the COVID-19 pandemic at airports, thus establishing their mandatory nature once they were incorporated.

However, given the good evolution of the degree of immunisation achieved against COVID-19, which has been maintained over time since the RDL was issued, it has been decided to eliminate the obligatory nature of the application of these operational guidelines, which in the European Union were originally created as recommendations for its Member States, in order to give them the mere character of an original recommendation, thus avoiding imposing additional obligations to those required in the European Union.

The main reason for this is the fuller and more complete revival of the holiday tourism sector, as well as a return to highly competitive passenger air transport.

Nevertheless, the intention was to build on and not totally discard a procedure that has been shown to be at least partially effective, to have a permanent instrument for future response to such rapidly spreading diseases as COVID-19 that may emerge. Therefore, Article 9 of this Royal Decree-Law extends the application of the procedure for the adoption of operational guidelines to other public health emergencies of international concern declared by the World Health Organisation which, due to their impact, justify the adoption by the competent bodies of the European Union, or by an international organisation to which Spain is a party, of operational guidelines, guides or recommendations for the management of air passengers, aviation personnel or the use of airports. In other words, we are talking about measures that can only be adopted when there is an international public health emergency declared by official bodies.

It should be noted that the guidelines adopted in accordance with the provisions of this Royal Decree-Law will be called “operational guidelines”, which will have the character or nature of mere recommendations, but that without prejudice to the above, according to Article 10 of this Royal Decree-Law, it is stated that:

“by order of the Minister of Transport, Mobility and the Urban Agenda, following a favourable report from the Minister of Health, the mandatory nature of all the operational guidelines or any of their precepts may be established”.

The scope of application of these operational guidelines shall be both the persons transiting through the airports located in Spanish territory and the companies and personnel carrying out their activity in these facilities, as well as the managers of the airports located in the national territory; airlines and operators operating at these airports, including air taxi and general aviation operations; companies providing ancillary or related services and, in general, all persons transiting through airport infrastructures.

Airport managers and airlines should inform passengers, either through digital means (such as their mobile applications, or via email), the airport public address system, or signage about the preventive measures they have adopted in their case, following the recommendations set out in the appropriate operational guidelines for the future.

Regarding passengers, it should be pointed out that they must collaborate with airport managers, airlines and health authorities in the implementation of the measures of the operational guidelines that affect them. Likewise, they will continue to be obliged to submit to the health controls established by the Ministry of Health and to adopt the preventive measures that are established.

It is for all of the above reasons that we advise air passenger transport operators to be attentive to the new operational guidelines that may be drawn up in the future, in case they are interested in incorporating some of the recommendations that are contemplated internally, and likewise, to make them aware that according to art. 10 of this Royal Decree-Law, these future operational guidelines could become mandatory, so they should also monitor and consider whether, faced with an operational guideline about which there is a rumour that it could become mandatory, they should begin to incorporate it from its initial phase, i.e. when it is still in the nature of a recommendation, in order to be more efficient in its management.

Automated Ports

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Once again, the special edition of “Transporte XXI” on Ports of Spain, in this case in its April 2023 version, collaborated with our office by publishing the article “Automated Ports” prepared by our colleague from Bilbao, Irantzu Sedano.

Irantzu’s article shows how the continuous advances in technology are having a major influence on the automation of ships, as well as on the automation of the ports in which they work. It is a fact that autonomous navigation brings as a direct and main consequence the need for autonomous berths and moorings in ports, thus forcing ports to focus their efforts on this new reality that is getting closer and closer to us, and which undoubtedly cannot be ignored.

This is why most Spanish ports are already automated in many of their functions; in other words, they use advanced technologies to improve efficiency and productivity in their operations, be they loading and unloading, transport and storage of goods, access to the port, etc. Automation reduces operating costs, optimises space, improves the safety of operations, as well as it allows the handling of large volumes of cargo and the reduction of waiting times for ships and lorries in the port.

However, this scenario also poses many legislative challenges, which will have to be tackled prudently and tenaciously to ensure safe and sustainable development of this new maritime reality:

Much of the pre-existing regulation is not adequate to deal with issues related to port automation and needs to be updated or even new specific regulations developed. These include: (i) the pre-existing and traditional security regulations such as ISPS (International Ship and Port Facilities Security), which have been updated to take into account the risks of port and ship automation, cyber security and data protection, etc.; (ii) the IMO recommendations; (iii) ISO standards establishing a framework for information security management; (iv) SAE J3016 standards relating to vehicle automation levels, which have been adapted for use on ships; (v) SNAME (Society of Naval Architects and Marine Engineers) guidelines.

The development of a legal framework should define the liability regime in case of accidents or damage in the context of autonomous systems.

Privacy and data protection regulation is required, in terms of respect for privacy rights and protection of shared personal data.

Modernisation and adaptation of existing workplaces must take place. Automation will undoubtedly reduce the need for human intervention, and it will be necessary to regulate the retraining and relocation of workers whose functions have been automated. Therefore, automation and robotisation will have to coexist with the human factor, provided that adequate measures are put in place to ensure safety, redistribution of tasks and adaptation of the workforce.

The cybersecurity of operations will have to be guaranteed by establishing regulations to always ensure the security of autonomous systems and data protection. It is a reality that malware attacks on automated maritime infrastructures have increased due to this new way of working that has been implemented.

Not only will all operators and competent authorities have to implement state-of-the-art security protocols and systems, but the cyber insurance phenomenon will have to coexist with this new reality, as at the end of the day this will be the only way to transfer the risk of possible cyber security incidents to a third party that will cover us for this eventuality.

In conclusion, as has been the case so far, but now even more so, it will be important that national and international regulatory authorities, the maritime and port industry, and the other actors in the sector, work together to develop an updated legal and regulatory framework adapted to the new realities of the port sector and maritime navigation.

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AIYON visits the Port of Baiona and meets with the French association of transporters O.T.R.E.

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We would like to thank the Chamber of Commerce of Baiona for the excellent welcome we received during our visit to their port facilities on Wednesday 15th, a port that is currently undergoing a process of intense growth following the approval of important investments, which will greatly improve the area and will undoubtedly attract more traffic.

Zuberoa Elorriaga, from AIYON Bilbao, together with Sonia García acting as President of the Transport Business Association of Bizkaia (ASETRABI), met yesterday, Wednesday, with the commercial manager of the port of Baiona, Mr. Joxan Madinabeitia, who, as representative of the Chamber of Commerce and Industry of Baiona – Basque Country (CCI Bayonne Pays Basque), is working to establish a better understanding in cross-border logistics and wants to promote the possibilities of collaboration between companies and associations on both sides of the Basque-French border.

After visiting the port and getting to know the local traffic, the three of them had the opportunity to enjoy an interesting lunch with Mrs. Caroline Auge, head of the French hauliers’ association O.T.R.E. for the 64th (Pyrénées-Atlantiques area) and 40th (Landes area) departments. O.T.R.E. is the French representative organisation for small and medium-sized transport companies in France, grouping together more than 3,000 companies and 75,000 employees, and since 2021 it has been a member of the European Road Hauliers Association (UETR).

This lunch allowed them to share and discuss the realities experienced in each country in relation to road transport, as well as the new regulations being promoted by the European Union. Both associations considered this visit a good opportunity to establish the basis for future collaboration, with AIYON’s support and legal assistance when required by the heads of the associations or their members.

It should be recalled that AIYON is the firm of reference for ASETRABI and its associates in the areas related to land transport, insurance and other matters involved in its activity.

Royal Decree-Law 14/2022 of 1 August and its Most Significant Developments in the Field of Land Freight Transport

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As reflected in the Preamble of Royal Decree-Law 14/2022, of 1 August, on economic sustainability measures in the field of transport, in terms of grants and study aids, as well as measures for energy saving, efficiency and reduction of energy dependence on natural gas (hereinafter RDL 14/2022), the land freight transport sector in Spain is made up of small companies (53% of companies with heavy goods vehicles have only one vehicle), which exacerbates the difficulties that small road transport operators may have in adapting to scenarios in which sharp increases in transport costs occur unexpectedly and unpredictably (such as fuel, due to inflation and the war in Ukraine, or tyres and spare parts in general). This calls for greater intervention by the public authorities to guarantee the proper functioning of an activity that represents around 2% of Spanish GDP.

It is for this reason that on 2 August 2022, RDL 14/2022 came into force, which came to modify precepts of the national land transport of goods regulations such as Law 15/2009, of 11 November, on the Contract of Land Transport of Goods and Law 16/1987, of 30 July, on the Organisation of Land Transport.

Title I of RDL 14/2022 refers to land transport measures, and with the legislator’s objective in mind of guaranteeing that the price of transport be higher than the actual individual costs and expenses borne by the carrier, it has been considered necessary to require written documentation of transport contracts for a single consignment made with the actual carrier, provided that these exceed 150.00 euros, as well as of those contracts for continuous transport.

Similarly, it is now required that the transport price with reference to the related costs be expressly stated in the transport document, requiring that the transport price be equal to or higher than the actual individual costs incurred by the carrier (art. 1 RDL 14/2022 amending art. 10 bis Law on the Contract of Land Transport of Goods referring to the transport document in contracts concluded with the actual carrier).

This reformed article 10 bis of the Law on the Contract of Land Transport of Goods states that, in order to determine the actual cost of transport, it is possible to “take the time reference that best suits the carrier’s forecasts and business strategy”; in other words, a fairly flexible criterion has been chosen that allows the carrier to vary and adapt the cost of transport to the circumstances of the moment, or if desired, to the prices of the moment, and thus reflect it in the consignment note.

To translate the above into the daily practice of hauliers, and to know which costs can and cannot be included in the transport documents, we must refer to the new ninth additional provision of the Law on the Contract of Land Transport of Goods introduced by RDL 14/2022. This states that, in order to determine the actual individual cost of transport provided by the actual carrier, the cost item structure of the observatory of road freight transport costs drawn up by the Ministry of Transport, Mobility and the Urban Agenda will be valid. This cost item includes:

  • Depreciation costs of the different elements (tractor units, trailers, semi-trailers and auxiliary equipment);
  • Annual financing costs of the different elements purchased;
  • Costs of driving personnel;
  • Vehicle insurance costs;
  • Tax costs;
  • Fuel costs;
  • Urea dilution costs;
  • Tyre, maintenance and repair costs;
  • Driver’s per diem costs;
  • Toll costs;
  • Indirect costs that can be passed on to each vehicle (such as fleet management software).

Consequently, we would recommend that all land transport operators have these costs perfectly identified in a general way for their entire fleet (pro rata for each vehicle) and that, subsequently and for each specific transport, they take “the time reference that best fits the carrier’s business strategy and forecasts” and adapt these costs, as if they were a tailor-made suit, in order to reflect them in the consignment note and ensure that the price they will finally charge for the transport is higher than the costs and expenses of the transport.

Finally, it should be noted that, if these costs are not reflected in the consignment note, in accordance with Article 13 of the Law on the Contract of Land Transport of Goods, this absence or irregularity in the consignment note provided for in Article 10 bis does not render the contract non-existent or null and void, and that the omission of any mention of Articles 10.1 and 10 bis.1 does not render the consignment note ineffective.

AIYON Abogados participates in the Special Supplement on Transport and Logistics of El Correo

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On the occasion of the celebration of the “Empack and Logistics & Automotion” trade fair, which will take place at the Bilbao Exhibition Centre (BEC) in Bilbao on 1 and 2 March 2023, the newspaper El Correo has prepared a special on Transport and Logistics with the collaboration of our firm.

AIYON has prepared the article “Why is adequate legal advice necessary for transport companies“, which aims to explain the need for the legal advisor to take an active part not only in the dispute resolution phases or claims that clients may require, but also in the previous phases of consultation, advice or processing. In any case, accompanying the operators in the logistics chain in an active and participative manner, trying to avoid possible setbacks in the development of their work, or to tackle problems, optimising their work as much as possible.

This collaboration is also accompanied by the participation as moderator of our partner from Bilbao, Zuberoa Elorriaga in the round table organised by the Basque Institute of Logistics and Sustainable Mobility (IVL/LEE) for the 2nd of March under the title “Present and Future of Land Freight Transport in the Basque Country”, in which Zuberoa will share space with professionals such as Sonia García – President of ASETRABI, Almudena Palomera – Manager Director at TUBACEX, Iñaki Cepeda – Manager of the GUITRANS Foundation, Inmaculada Ugarteche – Director of UNIPORT and Antonio Jaraices – Director of Organisation, Communication and Corporate Strategy at EUSKOTREN.