Royal Decree-Law number 8/2017, of 12th March, amending the regulation of port workers as well as of the supply of port service handling of cargo, in compliance with the judgment handed down by the Court of Justice of the European Union (ECJ) on 11th December 2014, has entered into force. This regulation liberalises the right of establishment for companies and modifies the Spanish Port Law.
AS FROM 18.01.17 IN FORCE THE EUROPEAN ORDER OF CONFISCATION OF ASSETS (Regulation (EU) No 655/2014 of the European Parliament). The purpose of the regulation is the establishment of a procedure that allows the creditor to obtain a quick Court Order regarding confiscation of assets.
In force Ministry Order of Development FOM1684/2016, of 20th October, approving the substantial modification of the delimitation of spaces and port uses at the Port of Barcelona.
As from the 26th March 2016 Regulation from the Ministry of Transport number FOM/1684/2016 of 20 October approving a substantial modification of the public spaces of the port of Barcelona in Spain is in force. This regulation basically excludes the port waters belonging to Zone II of the port of Barcelona and releases certain buildings and spaces in the city port from the port public domain, as well as changes certain port uses in Nova Bocana and Levant Dock.
As from the 23rd March 2016 Regulation from the Ministry of Transport number 372/2016 of 9th March approving a substantial modification of the public spaces of the port of Melilla in Spain is in force. This regulation basically incorporates the port waters belonging to Zone II of the port of Melilla and releases the beaches of Hípica, Hipódromo and Cárabos from the port public domain.
New social regulation: applicable to sea and fishing workers. Law 47/2015, of 21st October, ruling the social protection of sea and fishing workers, will come into force on the 1st November 2015. This law gives social cover to the personnel on board of ships (of merchant marine, fishing, port waters and pleasure boats), to divers and stevedores, amongst other social groups.
Royal Decree 357/2015 of 8th May, about the enforcement and compliance system established under the Maritime Labour Convention, 2006, on Spanish vessels, came into force on 10 May 2015. The coordinated procedure for inspection and compliance will be carried out jointly with the Inspectorate of Work and Social Security, the Social Marine Institute and the General Directorate of the Merchant Marine (through the Harbour Master offices).
Amendments to Spanish Court Fees since 1st March 2015. Natural persons and legal entities entitled to free legal assistance, are exempted of payment of Court Fees / Legal Taxes since the publication of Royal Decree-law 1/2015, of 27th February, which modifies Law 10/2012, of 20th November ruling taxes on the Administration of Justice.
The law 18/2014, of 15th October, of approval of urgent measures for the competitiveness and the efficiency, modifies Spanish Law of Ports and Merchant Marine. This new modification is related to the increasing loss of competitiveness of the Spanish ports in the international scenario due to their high costs and the possibility of loss of important inversions due to this reason. It basically increases the possibility to increase the period of the existing port concessions for more than 50 years.
New coastal regulation in Spain. In force since 12th October 2014 the new implementing Regulation of the Coastal law, Royal Decree 876/2014, of 10th October. This replaces the previous Regulation approved by Royal Decree 1471/1989, of 1st December. This Regulation develops in detail the extension of the coastal concessions up to 75 years.
New maritime regulation in Spain. As from 25th September 2014 the new Spanish Shipping Act (Ley 14/2014, de 24 de Julio, de Navegación Marítima) will be applicable, thus finalising the application of a shipping legislation outdated, incoherent and dispersed in many different texts. This new law incorporates applicable international conventions, which, despite being applicable in Spain they were in contradiction with domestic law. The following applicable maritime legislation will be repealed as from then: Commercial Codes (Book III and related articles), Law of 22nd December 1949 for the Unification of Certain Rules for Bills of Lading, Ship Mortgage Law of 1893, Law 60/1962 on Salvage and Rescue, Ports Law of 2011 (articles 261, 262 and 263.f).
Increase of port concessions up to 50 years. The state ports legislation allows, as from the 5th July 2014, the increase of the port concessions from 35 to 50 years, and lifts the ban for hotel accommodation in historic port buildings, amongst other measures approved by Royal Decree Law 8/2014, of 4th July 2014, on urgent measures for the efficiency, growth and competitiveness of economies, State Official Bulletin 04.07.2014.
New ports law in the Community of Valencia.New ports regulation in the Valencia Community with the publication in the Valencia Official Bulletin, as well as in the State Official Bulletin, of Law 2/2014, of 13th June, of Ports of the Regional Government. This law rules in a new way the port taxes and the abandonment and dismantling of ships, recreational craft, vehicles, equipment and goods at port.
Cargo vessel “SV NIKOLAY” on public sale at the port of Cadiz for 796,886 euros VAT excluded.
The Port Authority of Bahia de Cádiz auctions cargo vessel of Bulgarian flag “SV NIKOLAY” next 18th July 2014. The day limit to apply to bid in the auction ends next 14th July 2014, 14:00 hrs., data limit when all the requested documents and a guarantee of 159,377.20 euros have to be presented.
New regulation in respect Custom’s representative. Royal Decree 285/2014, of 25th April, is effective as from the 15th May 2014 after its publication in Spanish State Bulletin number 117 of 14th May 2014. To act as Custom’s representative three cumulative conditions are necessary: to be established in Spain o in a State member, to accredit with the necessary training and to be inscribed in the Registry of Custom’s Representatives.
Designated Spanish ports as the main entry for public health matters. Resolution of 25th March 2014 of the General Secretary of Health and Consumer Affairs, publishing the Agreement of the Council of Ministers of 7th March 2014 establishing the Spanish ports and airports designated as the main entry points for all public health matters of international concern in accordance with the International Health Regulations (IHR 2005). Spanish designated ports are Barcelona, Bilbao, Las Palmas de Gran Canaria, Malaga, Palma de Mallorca, Tenerife, Valencia and Vigo.
Published in the Official Journal of the European Union of 28th March 2014 Directives 2014/23/UE, 2014/24/UE and 2014/25/UE in respect the award of public contracts of concessions, public contracts and public contracts by entities operating in the transport sectors (port authorities).
Ro-ro vessel “ISABEL DEL MAR” on public sale at the port of Barcelona for 1,601,820 euros VAT excluded.
The Port Authority of Barcelona auctions ro-ro vessel of Spanish flag “ISABEL DEL MAR” next 27 March 2014. The day limit to apply to bid in the auction ends next 24 March 2014, 13:00 hrs., were all the documentation and a guarantee of 400,455 euros to be enclosed is detailed in Spanish State Official Bulletin of 13.02.2013.
Increase in navigational aids tax
Royal Decree-law 1/2014, of 14th January, of reform of infrastructure and transport and other economical measures, introduces amendments to state ports law, air security law and railway law, amongst others. With this law, the increase in the navigational aids tax is of a 128 % as the users of this service will support the costs of the service instead of the general State Budgets. Also, the Ministry of Foment will be the responsible authority in respect railways safety.
Identification of car registration when entering / leaving the Port of Barcelona
30.01.2014. The port of Barcelona has established a system for the automatic electronic identification of car registration, following the recent agreement signed between the Port Authority of Barcelona and the Catalonian Civil Guard. This agreement is based, in principle, in Royal Decree 1617/2007, of 7th December, establishing measures to improve ports and maritime transport.
Establishment of the public Registry of Companies providing Port Services in Spanish ports
State Official Bulletin publishes Order FOM/36/2014, of 10th January, establishing details required to be included in the General Registry of Port Service Providers from State Ports, as well as those details to be included in the public registries of the Port Authorities. The process for the inscription on both registries is also detailed in this Order of the Ministry of Development (Ministerio de Fomento).
Public Registry of Insolvency.
Official State Bulleting of 3rd December 2013 publishes Royal Decree 892/2013, of 15th November, ruling the Public Registry of Insolvency, which will enter into force on the 15th February 2014. The initial start and maintenance of this registry will be in the hands of the Property, Mercantile and of movable property Registers College in Spain. In respect the functioning of the Public Registry of Insolvency, the Courts, The Mercantile Registers, the Notaries and the public registers will submit the information of the different insolvencies and out of Court dispute settlements to the Registry. The publicity will be obtained through internet.
New European Community Customs Code.
The Official Journal of the European Union of 10th October 2013 has published Regulation number 952/2013 of the European Parliament and of the Council of 9th October 2013, adopting the EC Customs Code. Despite this new Code will enter into force on the 30th October 2013, it will not be applicable until the 1st June 2016, with the exception of the application rule as established in article 288. Meanwhile, the 1992 Customs Code (Regulation EC 2913/92) will continue to applie.
The new contracting regulation of Port Authorities is applicable after its publication in the Official Journal of Spain of 23 September 2013.
This regulation guarantees that the award of the contract is to the bid economically more advantageous; modifies the regime of the administrative appeals allowing tenderers to appeal against the legal infractions during the selection proceeding; and review the selection criteria of the tender.
Modification of the Ports Law and the Coastal Law.
Modification of the Ports Law and the Coastal Law.
The Official State Bulleting publishes on 29.05.2013 Law 2/2013, of 29 of May, of protection and sustainable use of the coastal area and modification of the Law 22/1988, of 28 July, of Coastal Law. This law will be in force as from 30th May 2013. This law modifies certain articles of the Ports and the Coastal laws, and introduces important changes to concessions and increases the duration of term for port authorizations.
MV “ARHON abandoned at the port of Malaga.
The Port Authority of Malaga has started the abandonment proceeding of MV “ARHON” in accordance to Spanish Ports Law. The announcment of the abandonment is published in the Spanish State Official Bulletin of 4th May 2013. If owners or interested parties do not provide allegations in the term of 15 days, the vessel will be declared abandoned and property of the Spanish State.
Registry of Custom’s Representation.
The Spanish State Official Bulletin has published in March 2013 the Order HAP/308/2013, of 26th February, creating the Registry of Custom’s Representatives. The inscription in this new registry allows the excercise of the activity of cutsom’s representation on behalf of third parties.
Today 21st November the Official State Bulletin has published Law 10/2012, of 20th November, ruling state taxes for the access to justice. Lawsuits and Appeals in Spain will have a cost of from 150 euros to 1,200 euros, in civil, labour and administrative proceedings. To this judicial tax, that of the autonomous communities will be added. We are against this law, which can be read at: www.boe.es/boe/dias/2012/11/21/pdfs/BOE-A-2012-14301.pdf.
The approval of the restated text of Port Law 2/2011 has consolidated the modification process of port legislation. The restated text ultimately provides Spain’s port system with a tool that harmonizes the previous four legislations in one single text, resulting in a working instrument that offers increased security and transparency to those affected. However, the European Commission has invited Spain, in September 2012, to adopt within the term of two months, the necessary measures to make compatible its legislation with European legislation in respect manipulation of cargo and stevedore companies (SAGEP).
The draft bill on the reform of the Spanish Coastal Law affects concessions. Any concessions that expire or are extinguished before the new amendment to the Coastal Law comes into effect shall expire and may not be extended. On the other hand, any concession processes that are underway will benefit from the new regulations contained in the draft bill. It will have to be seen whether the reform of the law that limited rights to 30 years will result in an improved concession term by increasing it to 75 years.
The commercial information that a ship’s captain shares with a State or Autonomous Community port during a stay in port (FAL form), has to be protected, in accordance with Royal Decree 1334/2012 on information formalities required of merchant ships arriving at Spanish ports.
Ports and port facilities have to apply the International Ship and Port Facility Security Code (ISPS) in a uniform manner. The Port Facility Protection Plan has to be correctly managed under a concession arrangement in order to avoid liabilities to concession and ports in case of incidences.
Liability can be sought if anchoring and docking areas and mooring facilities do not meet adequate safety requirements.
Abandoned vessels and scrapping
- Advisory services in connection with the abandonment and public auction of vessels abandoned by CONTENEMAR in the Ports of Barcelona and Vigo.
- Advisory services in connection with the public auction of abandoned foreign-flagged vessels in the Port of Las Palmas de Gran Canaria.
- Advisory services in connection with the scrapping of a vessel in the Ports of Las Palmas de Gran Canaria and Tenerife.
- Advisory services to render null and void the public auction of a vessel in the Port of Vigo.
- Advisory services in connection with the management of the scrapping of abandoned vehicles and boats in a port in Catalonia.
Arrest of vessels
- The Provincial Court uphelds claimant’s appeal against the decision of the Mercantile Court allowing to lift the arrest of the vessel, as claimed by the owners of the vessel. The Provincial Court states that the arrest of the vessel obtained under the Brussels Convention cannot be lifted by the relevant third party domain, unless the requested guarantee is deposited, given that the arrest has been obtained to secure the credit before the debtor that does not own the vessel.
- In order to adopt a court decision to arrest a vessel inaudita parte, the vessel must be in port or due to arrive.
- Arrest in the Port of Pontevedra for 50,000 € por damages to cargo (bond of 5,000 € to cover damages).
- Release of the arrest of vessel in the Port of Barcelona due to the elapse of the twenty days granted to file principal proceedings.
- Arrest in the Port of Palamós for 320,00 € for damages to passangers (bond of 40,000 € to cover damages).
- Release of the arrest of vessel by the Labour Court of La Rioja for unpaid wages.
Concessions and Permits
- Avisory services in connection with a public tender for the construction and operation under public concession of a plant for the scrapping of vessels in the Port of Las Palmas.
- Advisory services in connection with the occupation of plots under concession in the Port of Seville.
- Advisory services for the occupation of public space in a marina under the authority of the Catalan Autonomous Community Government.
- Report on applicable regulation for the valuation of a port concession.
- Report on tax reduction in a concession in the port of Alicante and request of reduction.
- The Court declares null and void the adjudication process by the Port Authority of a mooring concession in Spanish state port due to lack of motivation. The Court considers that the port’s technical report lacks the necessary information as regards why the proposal of the awarded concessionaire is considered to be the best proposal compared to the other proposals in the selection process. The specifications of the Port Authority in the solicitation documents established a punctuation system, however, the judgement declares that it is unknown the reasons for assigning the punctuation. The Court orders the Port Authority to start a new evaluation of the offers.
Civil Liability of the Port Administrations
- Legal defence in relation to a claim for damages arising from a traffic accident that took place in the port area due to deficient upkeep of public spaces in the port.
- Legal defence in relation to a claim for damages to a truck due to a collision with incorrectly fixed port entry gates.
- Advisory services in relation to a claim for commercial damages arising from the blocking of a port by fishing vessels.
- Advisory services for acknowledgement of shared blame between a ship’s captain and a pilot due to damage to the vessel as a result of a lack of planning in an anchoring manoeuvre.
- Legal report on a claim for damages arising from a lack of coordination by the port authority in the operation of various types of transport in the port area.
Damage to goods
- Report on the compensation received for damage to goods under the port of Barcelona’s New Quality Plan.
- Litigation to defend cargo claim for damages during sea transport.
Civil law liability
- Legal defence in relation to a claim for damages made to the port authority as a result of the end of a private contractual relationship.
Report on the sale of an abandoned ship in port forming part of the assets available to creditors in an insolvency proceeding, in order to enforce seaman’s wage claims.
Port Authority public employee employment relationship
- Payment of the differences in salary corresponding to the superior functions effectively performed applies, although the completeness or continuity of the superior category functions needed for promotion are not required.
- Assistance in obtaining the import authorisation for a leopard hunting trophy (Panthera pardus) from Zambia, and administrative appeal against the CITES Authority (Secretary of State for Trade) resolution rejecting the import authorisation.
- Claim before the “Junta Arbitral de Transport de Catalunya” (Arbitration Court of Transport in Catalonia). We manage to recover the debited freight before six month time.
- Court claim of unpaid freight. The Court rejects the claim as they consider that the action is not that of the logistic service contract signed but that applicable to freight and therefore it is not subject to the 15 year term.