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.