Sanctioning Powers of the Directorate General of the Merchant Navy (DGMN)

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Receiving notification of the initiation of an Administrative Disciplinary Proceedings is something that leaves no one indifferent, not only because of the final amount of the sanction, but also because of the general lack of knowledge that exists about the particularities of this administrative procedure.

Specifically, in this article we will analyse the characteristics of the Administrative Sanctioning Proceedings in the maritime field, as well as the sanctioning discretion of the Directorate General of the Merchant Navy (DGMN) in this regard.

COMPETENCE

The competence for the processing of a maritime Administrative Sanctioning Proceedings is stipulated in Annex II, article two of Royal Decree 1772/1994, of 5 August, which adapts certain administrative procedures in matters of transport and roads to Law 30/1992, of 26 November, on the Legal Regime of the Public Administrations and Common Administrative Procedure.

In accordance with this regulation, the Directorate General of the Merchant Navy, and the corresponding Maritime Harbour Master’s Office where applicable, will be responsible for the investigation and processing of an Administrative Sanctioning Proceedings.

PROCEDURE

The Administrative Sanctioning Proceedings of the Spanish maritime administration is generally governed by the same provisions that regulate such procedures for any other Spanish administration, i.e. by Law 39/2015 of 1 October, on the Common Administrative Proceedings of Public Administrations.

The Sanctioning Proceedings will be initiated once the irregularity has been noticed by the Administration, generally after an ocular inspection of the vessel or by a complaint from another competent authority, and the interested party or affected party must be notified of this Agreement to initiate the Administrative Sanctioning Procedure.

In the case in question, the competent body for sending this notification will be the competent Maritime Harbours Master’s Office of the place where the ship is located. In this communication, in addition to advising the parties concerned of the irregularity(ies) or deficiency(ies) identified and the possible rule(s) infringed, they shall also be required to provide a financial guarantee to terminate the detention of the vessel subject to the sanction, where this is stipulated. The guarantee shall remain deposited while the administrative procedure is being processed and at the expense of its outcome.

Following notification of the Agreement, interested parties shall have 15 working days to submit any observations they may wish to make. This period may be extended for a maximum period of 7 days beyond the expiry date, provided that the interested parties so request, and the Harbour Master’s Office authorises it.

Once the allegations of the interested parties have been reviewed, the Harbour Master’s Office will issue a Resolution Proposal, in which, in addition to identifying the precepts it considers having been infringed, it must also quantify them, thus determining the amount of the proposed sanction.

Interested parties shall have a further period of 15 days to make representations, should they consider it appropriate.

This point of the procedure is very important, not only because it is the procedural moment in which the Administrative Sanctioning File is transferred from the Harbour Master’s Office to the DGMN, which is ultimately responsible for issuing the Resolution, but also because it gives the interested parties the possibility of ending the process, by voluntarily acknowledging their liability and making prompt payment of the proposed amounts, in compliance with the provisions of Article 85 of Law 39/2015. Thus:

  • Voluntary acknowledgement of liability grants the interested party the benefit of a discount of 20% of the amount of the proposed penalty. However, on the other hand, it also obliges the interested party to renounce any subsequent administrative action or appeal.

In short, whoever acknowledges his or her responsibility for the alleged facts will lose the possibility of denying them in the future or appeal them.

  • Prompt payment of the penalty, before the Resolution was issued, entitles the interested party to a discount of 20% of the amount of the proposed penalty.

Both discounts are cumulative, and the interested party may therefore obtain a discount of at least 40% on the amount of the proposed penalty.

LIMITATION PERIOD

The Administration shall have a maximum period of 12 months from the date of issue of the Agreement to Initiate the Sanctioning Proceedings, to resolve the proceedings (1).

The lack of an express decision will result in the proceedings lapsing and they will be closed, which does not prevent a new one from being initiated if the possible infringements are not time-barred.

EFFECTS OF PROMPT PAYMENT ON THE DGMN’S DISCRETION TO IMPOSE PENALTIES

The power to impose penalties in the maritime field lies with the Ministry of Public Works, and more specifically in the hands of the DGMN, articles 263.k and 315.1.d of the Consolidated Text of the Law on State Ports and the Merchant Navy. There is an express obligation for the DGMN to resolve the procedure before the end of the one-year period granted for this purpose (art. 21 of Law 39/2015).

In fact, the jurisprudence of the Supreme Court (Judgment of 6 October 2022) is well known, confirming that until the competent Administration has issued an express resolution for the procedure, it will not have imposed any sanction, and may even incur the expiry of the actions when the time comes.

We highlight this fact, since the obligation to resolve provided for by law, together with the provisions of article 315.1.d. of the Consolidated Text of the Law on State Ports and the Merchant Navy, clashes with the usual practice of the sector, and more specifically with the right to prompt payment recognised by article 85 of Law 39/2015, which could turn the DGMN’s power into a merely declaratory power lacking any real power to impose a sanction.

Article 85 of Law 39/2015 on the Common Procedure of Public Administrations is clear in stating that “voluntary payment by the allegedly liable party, at any time prior to the resolution, will imply the termination of the procedure”. What is discussed in this case is the effect that article 85.2 of Law 39/2015 could have on the sanctioning power of the DGMN, according to article 315.1.d of Consolidated Text of the Law on State Ports and the Merchant Navy.

What we consider clear is that payment by the interested party should entail the Administration’s commitment to terminate the Sanctioning Proceedings, as is the case in other administrative sanctioning areas. The question to be asked is, how will the proceedings be terminated?

  • The first of the criteria shared by some of the professionals of the sector argues that, in those cases in which the interested party proceeds to make prompt payment of the proposed penalty and to recognise their responsibility, the DGMN may only terminate the procedure without modifying the Resolution Proposed by the Harbour Master’s Office in charge of the investigation of the proceedings.

The main argument defended by this current is that the fact that the DGMN retains the discretion to modify the amount of the sanction, once the interested party has acknowledged his liability and renounced his actions, having thus lost all possible means of defence, would place him in a situation of absolute vulnerability, due to defencelessness, incompatible with the Fundamental Right to effective judicial protection of article 24 of the Constitution. This trend is supported not only by the wording of Article 85 of Law 39/2015, but also by the Supreme Court’s Ruling 1830/2018, which was handed down on 19 February 2018, which interpreted Article 8 of Royal Decree 1398/1993 of 4 August 1993, which has the same content as the current Article 85 of Law 39/2015.

  • On the other hand, the DGMN and other professionals in the sector consider that the Consolidated Text of the Law on State Ports and the Merchant Navy, as a specific regulation of the maritime sector, should prevail over the general provisions contained in Law 39/2015, as the sanctioning power of the administration is an inalienable right of that body. This trend bases this power of the DGMN on Article 90(2) of Law 39/2015, which allows the decision-making body to deviate from what was proposed by the investigating body when it considers the infringement to be more serious. Therefore, they argue that limiting the DGMN’s ability to freely issue the resolution of the case it deems appropriate would be an unjustified limitation of its powers, transferring part of them directly to the Harbour Master’s Office.

This second criterion is the one followed and shared to date by the Spanish Administration, so that all parties involved in a Maritime Administrative Sanctioning proceedings should take this competence of the DGMN into account when assessing whether or not to assume their responsibility and make prompt payment, thus waiving any possible future action to defend their position. In practice, prompt payment and the assumption of responsibility do not guarantee the termination of the procedure, and there is a risk that the DGMN will increase the penalty paid and acknowledged by the defendant.

In any case, as we always advise, each case and scenario should be assessed individually, and be advised by professionals such as the team that makes up AIYON, since relations with the handling of these files and relations with the administrations are part of our day-to-day work.

(1) This is stipulated in Annex 1 of Additional Provision 29 of Law 14/2000 of 29 December on fiscal, administrative and social measures, amended by Article 69 of Law 24/2001 of 27 December on fiscal, administrative and social measures, applicable by virtue of the provisions of the Sole Repealing Provision, section 3 of Law 39/2015 of 1 October.

“ESTRATEGIA EMPRESARIAL”, echoes our almost 9 years of experience in the market

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As a firm founded in 2015 in Bilbao, the publication highlights our multidisciplinary team of eight expert lawyers, valuing our comprehensive 360º legal advice. 

With a proven impact at national level acting from our four offices located in Bilbao, Cadiz, Madrid and Algeciras, with which we cover strategic areas for the transport and logistics sector, ESTRETAGIA EMPRESARIAL also highlights the fact that we have all kinds of collaborators at national and international level that help us to cover all the demands for advice and assistance that our clients may have anywhere in the world.

Likewise, the publication points out our commitment to disseminate all kinds of legislative and jurisprudential developments related to the logistics sector, both in terms of maritime law, transport law in general, insurance and national and international trade via our conferences, talks to clients or the two corporate websites: www.aiyon.es and shiparrestrelease.com.

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Brief comments on the reform on digital and procedural efficiency (Royal Decree-Law 6/2023 of 19 December for the Administration of Justice)

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Following in the wake of the now repealed Law 18/2011, of 5 July, regulating the use of information and communication technologies in the Administration of Justice, and driven by the COVID-19 pandemic crisis suffered in 2020, which made even more evident the urgent need to achieve technological adaptation of the Administration of Justice, the Royal Decree-Law 6/2023, of 19 December, approving urgent measures for the implementation of the Recovery, Transformation and Resilience Plan in the field of public service in the public administration of justice, has recently been legislated, Royal Decree-Law 6/2023 of 19 December, approving urgent measures for the implementation of the Recovery, Transformation and Resilience Plan for the public service of justice, civil service, local government and patronage, published on 20 December 2023 in the BOE.

This RDL introduces several changes to different legal provisions, seeking to modernise and digitalise the administration of justice, as well as to implement procedural efficiency measures that contribute to reducing the number of lawsuits and increasing the dynamism of procedures in all the different jurisdictional orders.

The aim is thus to make the digital relationship with the Administration of Justice the most common and ordinary one, providing a new, faster, and more efficient channel under this cover of norms and rules, if possible, to better satisfy the rights of citizens when they come into contact with the Administration of Justice. In any case, effective judicial protection, regulated in art. 24 of the Spanish Constitution, is an absolute priority.

It seems that the “Electronic Court File” will be called upon to be the centrepiece of the future of digital justice, which will be developed in conjunction with the application of the general principle of data orientation, with the aim of opening the door to new technological solutions and the use of artificial intelligence in the administration of justice.

So, within the enormous list of modifications contained in this Royal Decree-Law 6/2023, of 19 December, this article will focus below on the new features of digital efficiency and telematic hearings introduced, as well as on the changes for civil proceedings.

It must be assumed that its provisions will be applicable exclusively to legal proceedings initiated after its entry into force, and therefore its retroactive application is not envisaged. This entry into force will take place twenty days after its publication in the Official State Gazette (on 9 January 2024), except for the new provisions on procedural efficiency, which will enter into force three months after their publication in the Official State Gazette (on 20 March 2024).

a) The telematic hearing as a general rule:
With this new RDL, and the required modification of the LEC, the holding of telematic hearings will be the new general rule in civil jurisdiction, conditional, of course, on the judicial offices having the necessary technical means (art. 129 bis 1 LEC).

As an exception to the above, only those hearings in which the appearance, declaration or testimony of the parties, witnesses or experts is required will be held in person; however, even in these cases, the telematic modality may be chosen if certain circumstances are met (for example, if the person who must intervene lives in a different location from that of the court).

b) The first summons shall be served electronically:
Given that telematic means of notification are preferable, it is not surprising that the new content of art. 155 LEC indicates that the first summons will be made electronically, except in the case of natural persons who are not represented by a solicitor, who may choose whether they are communicated on paper or by electronic means. If three days have passed without the addressee accessing its content, it will be published by means of the Single Judicial Notice Board.

The Constitutional Court’s interpretation that, according to the previous regulations, the first summons had to be made in paper format to entities obliged to relate to the Administration of Justice by electronic means, such as companies, will thus go down in the history of law (STC 47/2019, of 8 April).

This brings with it a new and clear “de facto” obligation for this type of entity, which must now categorically manage and control each and every one of the electronic platforms to which judicial notifications may reach them, namely:

  • The Justice Folder.
  • The Electronic Judicial Headquarters.
  • The Single Enabled Electronic Address (DEHú).
  • The Single Bulletin Board.

Hence the importance of subscribing to the so-called “alert systems” contained in these electronic platforms, in order to receive an email notification that a new notification has been made and to access it, otherwise you will have to check these platforms on a daily basis if you want to be diligent, in case one has been made.

c) Modifications to the procedure of the Verbal Judgment:
As a result of the new wording of art. 249 LEC modified by this RDL, the amount of the ordinary trial procedure is raised from 6,000 to 15,000 euros. Consequently, the matters that must now be heard by means of a Verbal Trial will be those that are determined by the amount of 15,000 euros or less.

Its scope of application is also extended by reason of the subject matter, covering for the first-time lawsuits in which individual actions are brought in relation to general contracting conditions (art. 250.1.15º LEC).

d) Amendments concerning appeals and review of final judgments:
As a result of the new wording of articles 458 and 461.1 LEC, introduced by this RDL, the Appeal will no longer be devolutive and will be lodged directly before the Provincial Court, instead of before the Court of First Instance that heard the case, as has been the case until now.

The regulation of the Appeal in Cassation has also been modified in two main aspects, namely (i) withdrawal of the Appeal in Cassation will not be permitted once the date for deliberation, voting and ruling has been set (art. 450.1 LEC) and (ii) with regard to the costs of the Appeal in Cassation, there will be the possibility that the appellant who has seen his appeal rejected will not be ordered to pay the costs in those cases in which our highest court appreciates circumstances that justify it.

To conclude, we would like to point out that the first phase, which began more than a decade ago, aimed at the transition from paper to digital in the Administration of Justice, is now behind us, and that we are now in a new, much more advanced phase, in which the aim is to achieve substantial and concrete improvements in the already existing digital environment. This is why the wording and content of this RDL should not surprise us, as even greater changes are expected in the future in this line of digitalisation, promoting greater effectiveness and efficiency in the Administration of Justice, which we will always consider more than welcome.

Notes to the Judgments of the CJEU and the High Court KBD of England on the Prestige Case

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The English Court does not apply the doctrine of the CJEU which confirmed the possibility of recognising the Spanish conviction in the Prestige case in England.

The environmental tragedy of the M/T Prestige initiated a long-running legal dispute between the insurer of the M/T Prestige (The London Steam-Ship Owners’ Mutual Insurance Association Limited, hereinafter “the Club”) and Spain, through two different proceedings in two Member States at the time, the United Kingdom and Spain.

This article is based on Spain’s application to the UK courts in 2019 under Article 33 of “Regulation 44/2001 on Jurisdiction and the Recognition and Enforcement of Judgments in Civil and Commercial Matters” to recognise and enforce the Spanish court’s judgment. This decision was the Enforcement Order of 1 March 2019 of the Provincial Court of A Coruña enforcing its previous judgment, confirmed in cassation by the SC on 19 December 2018. It condemned the Master, the owners of the Prestige and the Club against the Spanish State and more than 200 other parties. As far as the Club was concerned, up to the contractual limit of USD 1 billion on the basis of the insurance policy.

The High Court of Justice Business and Property Courts of England and Wales Commercial Court (hereinafter High Court KBD) granted that application in May 2019, which was ultimately appealed by the Club on the basis of two main arguments under art. 34 of Regulation No 44/2001: (i) argument of incompatibility with the English judgment (ii) recognition of the Spanish judgment would be contrary to English public policy principles for violation of the res judicata rule.

At this procedural stage, the High Court KBD referred a question to the CJEU for a preliminary ruling, in relation to the interpretation of Regulation 44/2001, as to whether the recognition and enforcement in the UK of the sentence imposed in Spain could be refused, due to the existence in the UK of an award and a subsequent judgment upholding it, the effects of which were irreconcilable with the Spanish judgment.

The CJEU ruled on 20 June 2022 that a judgment given by a court of one Member State (UK) on the terms of an arbitral award cannot prevent the recognition, in that Member State, of a decision given by a court of another Member State (Spain), where provisions or objectives of Regulation 44/2001 have been contravened.

Therefore, the English courts had indeed to recognise and enforce the said Order of Enforcement of the AP de A Coruña, since the arbitration award on the terms of which the English judgment was rendered would have infringed certain provisions of Regulation No 44/2001, namely (i) the effect of the arbitration clause inserted in an insurance contract since, according to the CJEU’s own case law, an agreement conferring jurisdiction concluded between an insurer and a policyholder cannot bind the person injured by the insured damage and (ii) the rules of lis pendens since, when the arbitration award was entered into, the insured person cannot be bound by the arbitration award, an agreement conferring jurisdiction concluded between an insurer and a policyholder cannot bind the person injured by the insured damage and (ii) the rules of lis pendens since when the arbitration proceedings were brought in the UK (16 January 2012), proceedings between the Spanish State and the Club were already pending before the Spanish courts. Therefore, in accordance with Article 27 of Regulation 44/2001, the English courts should have suspended the proceedings ex officio until the Spanish courts had declared themselves to have jurisdiction and, if they did so, as was the case, they should have declined jurisdiction in favour of the Spanish courts.

Following the preliminary ruling, the High Court KBD decided on 06 October 2023 on the appeal lodged by the Club:

i). That they were irreconcilable judgments, given that the English judgment declared that under the “pay to be paid” clause, as the shipowners had not paid any amount, the Club was not liable to Spain and the Spanish judgment maintains that the Club is liable to Spain. These positions cannot coexist and therefore, both judgments are irreconcilable and thus, in accordance with art. 34 of Regulation 44/2001, the Spanish judgment can neither be recognised nor enforced in England.

ii). The English judgment in line with the arbitral award is res judicata and as Regulation 44/2001 excludes arbitration from its regulation, the existence of potentially inconsistent decisions and lack of coordination with future arbitral awards is assumed by the Regulation. Furthermore, it understood that since the Regulation does not apply to arbitration, the English court’s decision to ratify the arbitral award did not alter the provisions of the European Regulation.

It also considers that the CJEU, in its ruling on the question referred for a preliminary ruling, exceeded the scope of the questions referred for a preliminary ruling, and purported to apply the law to the facts, which is outside its competence (reserved to the Member States). Considering that the CJEU had exceeded its powers, the High Court KBD considered that it was not bound by its decision.

In conclusion, we must remember that the interpretation issued by the CJEU is binding on the court that asked the question for a preliminary ruling, which may not, under any circumstances, depart from it or ignore it, either on its own initiative or because it is instructed to do so by a hierarchically superior court, and that in the future, this interpretation of the CJEU will be the one that will be applied in the EU. However, the English judgment may be seen as opening a small door to legal uncertainty if it allows a Member State to unilaterally consider that the CJEU has exceeded its powers and that its decision is therefore not binding on it, without prejudice to any liability it may incur for breach of Community law.

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ASETRABI counts on its collaborator, AIYON Lawyers, to analyse safety and efficiency in road transport

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On 30 October, the Bizkaia Transport Business Association, ASETRABI, held a conference on efficient driving and load stowage, with speakers including our partner in Bilbao, Zuberoa Elorriaga, as well as Andoni Gortazar, representing the Institute for Load Safety (ISEC), among other professionals from the land transport sector. This is an entity with which our firm also collaborates.

As part of the interesting training sessions that ASETRABI is holding this autumn in Bilbao, all of them of great interest due to the topics covered (loading and stowage, driving efficiency, decarbonisation, alternative fuels, etc.), on this occasion AIYON Abogados has been involved to explain to the participants of the event the complexity of the tasks and actions related to loading and stowage on lorries, all from a legal point of view.

For her part, Zuberoa tried to convey to the listeners the legal vision of stevedoring offered by the applicable international and national regulations, as well as the jurisprudential interpretation made by Spanish judges of the different regulations, always assessed on a case-by-case basis. This is because the extensive experience accumulated by our firm in more than eight years of activity always offers our lawyers a direct contact with the problems, as well as with each of our clients. This allows us to have a very close, as well as practical, view of the problems experienced in the road transport sector from all angles (shippers, receivers, carriers, insurance, etc.), which enables us to provide an appropriate and personalised solution in each of the consultancy services we offer.

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The Relationship of Law with Generative Artificial Intelligence (AI) on a Practical Level

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Currently, there is no doubt that artificial intelligence or AI is attracting a lot of attention from all sorts of professional sectors, public entities, private entities, media, as well as individuals who are mostly looking for answers to two questions; namely, what practical applications AI can have in their respective fields/economic sectors, and whether or not their own field, business or raison d’être is endangered by AI.

Not surprisingly, AI may represent a revolution in our society equal to or greater than the internet era; some are even talking about the next industrial revolution.

In principle, artificial intelligence is not seen as an end in itself, but as a means to serve as a catalyst for other sectors. While it is true that it will apply to virtually all sectors of economic activity, its impact could be more decisive in some than in others.

This short article is not intended to delve too deeply into issues of such calibre but rather to highlight the practicality of the AI available to us today in relation to the field of law and to see what its practical applications are today.

We have to be aware that behind the AI showcase, we are currently witnessing the latest, if not the first of many battles between the big technology companies with which we are, to a greater or lesser extent, in contact every day. Recall the battle for dominance of the personal computer market in the 1980s and early 1990s between Apple and Microsoft, or the battles for dominance of internet browsers (Google Chrome-Internet Explorer) or for “free” email (Hotmail-Gmail) in more recent times between Google and Microsoft.

Well, from a practical approach, it seems that the products leading the race would be: the search engine Bing with built-in AI as a chatbox from Microsoft (derived from its synergies with Open AI, creator of the famous ChatGPT) and Google Bard; although it is true that other companies such as Apple and Meta have already announced that they have been investing time and resources to offer their products with built-in AI, to compete in this sector.

It can already be said that AI chatboxes can be used as if they were a “co-pilot”, which receives our orders and can help a lawyer in their day-to-day work, with an assistance role generating content ranging, for example, from a draft of letters of complaint of all kinds, to a draft email accepting a complex assignment, to designing drafts of budgets, or comparing documents, among others. And all of this, of course, in any language there is.

No more searching for content with keywords and segmenting what we need using a traditional search engine – none of that. You simply give a command to your co-driver, such as, “write, compare, summarise, calculate, create, suggest, quote examples, design, etc.”, and wait for his or her response. And then, as a good driver, we will have to review and examine everything our co-pilot instructs us to do before making any decisions.

Whether we like it or not, the legal profession and all judicial activity in general (think of sending and receiving notifications, for example) will be affected by AI. Moreover, everything seems to indicate that highly automatable tasks may be replaced by AI and will be affected to a greater extent than those that are not; we are referring to those that are a tailor-made suit for the customer or the citizen.

Be that as it may, it is indisputable that the irruption of AI is already presenting a whole set of global challenges for any economic sector, public and private entities; from the impact on employment, to ethical and security concerns that would require a separate analysis.

We therefore believe, and dare to recommend, that all professional sectors, including the legal and transport sectors, should be prepared to face these challenges proactively.

AIJA is held in Athens (Greece) with one of our lawyers as speaker

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As planned, the AIJA (International Association of Young Lawyers) Transport Seminar took place in Athens on 14-16 September.

It was a joint event in which the Arbitration Commission and the Public Procedure Commission also participated, bringing together more than 150 young international lawyers. Among them were our colleagues from AIYON Algeciras and AIYON Bilbao, Rocío López and Irantzu Sedano respectively. The latter is an active member of AIJA.

Both lawyers enjoyed six conferences dealing with relevant and topical issues in the transport sector, with the contribution of more than twenty professionals and experts in the field. Among them, the talk on “Blockchain”, “Double Twins” and Autonomous Transport, in which our colleague Irantzu Sedano actively participated as a speaker along with other colleagues from the association, deserves special mention.

In addition to the conferences and the work carried out by the commissions, the participants were also able to enjoy a wide range of leisure and local culture in their free time.

We would like to thank AIJA, and the entire organising committee of the event, for their work and dedication in carrying out this type of international event, which undoubtedly contributes to enriching greatly the transport sector and the professionals that make it up.

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.