Royal Decree-Law 3/2022 on measures for the improvement of road freight transport

In recent months, fuel prices have risen sharply following the start of Russia’s invasion of Ukraine. This is having serious consequences for the transport sector, among others.

Royal Decree-Law 3/2022 of 1 March was enacted to mitigate the effects of this rise, to ensure the sustainability of the road freight transport sector, whose structure makes it more difficult to adapt to unfavourable scenarios, and to combat unfair competition from “letterbox companies” that operate de facto outside their States of establishment.

Among the measures included in this Royal Decree-Law applicable to land transport are the following:

 

1.- Mandatory transport price review subject to fuel price variation

RDL 3/2022 amends article 38 of Law 15/2009, of 11 November, on the Land Transport of Goods Contract (“LCTTM”) relating to the revision of the price of road transport in accordance with the variation in the price of diesel fuel. In accordance with the new wording of the aforementioned article 38:

It is compulsory to revise the price of the transport contract in line with the variation in the price of fuel, either by an increase or a reduction in the price of fuel. Any agreement to the contrary shall be considered null and void.

This duty to review applies to all transport contracts, whether verbal or in writing, whether they relate to the performance of a single journey or to continuous contracts. In the case of single-trip transport, the review shall apply if the price of fuel has changed between the day of conclusion of the contract and the time of transport. In the case of continuous contracts, which will be more affected by this measure, increases or reductions shall be applied on a quarterly basis in relation to the initially agreed price, being possible to agree on a shorter period, but under no circumstances a longer one.

The review of the price of transport will be conditional on the price of fuel having undergone a variation of more than 5%, although the parties may agree on a lower threshold.

Only one revision formula can be applied, and it will be the same for all transport contracts. In other words, it is not possible for the carrier and its customer to agree on another formula. This formula is established in article 3.4 of the Ministerial Order FOM/1882/2012 of 1 August, which approves the general contracting conditions for the transport of goods by road. The formula depends on both the variation in the price of fuel and the maximum mass of the vehicle and applies a coefficient to the percentage variation in the price of fuel.

In continuous transport contracts entered into prior to the Royal Decree-Law, these revisions shall be made:

a) If the contract includes different review formulas, these formulas must be updated to the one set by the Administration within a maximum period of 6 months from the entry into force of the Royal Decree-Law.

b) For those contracts that do not include a price revision clause due to variations in the price of diesel, it shall be compulsory to revise the price of those transports carried out after the entry into force, considering the variation in the price of fuel in the last 12 months.

The variation in the price of fuel shall be reflected in the invoice in an itemised manner, unless another way of reflecting the adjustment is agreed with the client.

 

2.- Regulation of goods loading and unloading operations

Taking up a historical demand of the transport associations, the Royal Decree-Law introduces an amendment to the thirteenth additional provision of Law 16/1987, of 30 July 1987, on the Regulation of Land Transport (“LOTT”) prohibiting drivers of goods transport vehicles of more than 7.5 tons. of MAM (Maximum Authorised Mass), whether they are self-employed or salaried, to participate in loading and unloading operations carried out in Spanish territory of goods or their supports, packaging, containers or crates, except in the following cases:

(a) Transport of removals and furniture storage.

(b) Carriage in tank vehicles.

(c) Carriage of aggregates or carriage in tipper vehicles or vehicles fitted with a crane or other devices inherent to the vehicle for the purpose of loading and unloading.

(d) Carriage in vehicle carriers and roadside assistance cranes.

(e) Carriage of break-bulk, parcels and any other similar carriage

(f) Carriage of live animals.

(g) Cases in which the regulations governing certain types of carriage specifically provide otherwise in relation to the participation of the driver.

(h) Those cases established by regulation, provided that the safety of the driver is guaranteed.

This ban also applies to drivers of foreign transport companies operating in Spain.

Unlike the rest of the Royal Decree-Law, the entry into force of this ban will take place on 2 September 2022, so that loading and unloading centres can prepare themselves.

In relation to the above, the Royal Decree-Law amends article 20 of the Land Transport of Goods Contract. The new wording stipulates that loading and unloading will be for the account of the shipper and the consignee unless, prior to the actual presentation of the vehicle for loading, it has been agreed in writing that these operations will be carried out by the carrier against payment of a supplement to the price of the transport. This agreed consideration must be shown on the invoice separately from the carriage. As regards the stowage and unstowage of the goods on board the vehicles, these will be the responsibility of the shipper and the consignee respectively, unless they are expressly assumed by the carrier.

In the event that the parties agree in writing that the carrier will carry out the loading and unloading operations, and except in the case of one of the aforementioned specialities, a person other than the driver will have to carry out these tasks.

 

3.- Regulation of stoppages

The Royal Decree-Law also modifies article 22 of the Land Transport of Goods Contract on stoppages and reduces from two hours to one hour the period of time that a vehicle must wait for loading or unloading to be completed from the time it is made available under the terms of the contract.

The stoppage of the vehicle for reasons not attributable to the carrier, including loading and unloading operations, shall give rise to compensation equivalent to the Public Indicator of Multiple Effect Incomes (“IPREM”) per day multiplied by 2 for each hour or fraction thereof, with a maximum of 10 hours per day. If the stoppage is longer than one day, this amount shall be increased by 25% for the second day and by 50% over the amount indicated for the first day for the following days of stoppages.

The parties, however, may agree on a higher amount.

This amount shall also be used to assess the compensation to the carrier when the vehicle is paralysed due to an accident or breakdown for which the carrier is not responsible.

 

4.- Other amendments affecting transport companies and employees

Royal Decree-Law 3/2022 also introduces an amendment to Law 45/1999 of 29 November 1999, on the posting of workers in the framework of a transnational provision of services in road transport, imposing an obligation of communication in the case of the posting of drivers who are employees. This communication will be made by means of the form of the public interface connected to the Internal Market Information System (“IMI”) established in Regulation (EU) 1024/2012.

Finally, the Royal Decree-Law extends the system of penalties contained in Articles 140, 141 and 143 of the Regulation of Land Transport.