Update on Road Transport Law in Spain.
National Strike after the passing of Royal Decree-law 3/2022
On 25th March, the Spanish government reached an agreement with Spain´s National Road Transportation Committee (CNTC) to end a lorry strike over high fuel prices, which has dramatically disrupted the supply chain, leading to food shortages in supermarkets, and has compromised the port activity in several major Spanish ports.
Following the trail of other European governments (Portugal, France and Italy), the Spanish government has committed to subsidizing the cost of diesel with 20 cents per litre (from 1st April through 30th June, renewable), and has also agreed to a direct transport aid scheme (which includes, inter alia, Euros 1.250 per lorry). The question, though, is whether or not this kind of arrangement will be sufficient to reassure the sector. In fact, National Platform, the minoritarian association of carriers behind this cessation of services since mid-March, has stated that its members (mainly self-employed drivers) will continue the so-called "indefinite strike".
This road transportation stopping has been prompted by the surge in energy costs following Russian’s invasion of Ukraine on February 24th, which served to exacerbate the energy market volatility over the last years. However, the sector´s discontent is a long-standing issue.
In an attempt to tackle the crisis of the road transport sector, the Spanish government, using statutory prerogatives recognized constitutionally and appealing to reasons of extraordinary and urgent necessity, passed the Royal Decree-law 3/2022, on measures for the improvement of the sustainability of the transport of goods by road and the operation of the logistics chain, which came into force on 2nd March 2022. This norm, among other things, transposes (EU) Directive 2020/1057, which establishes specific standards on the posting of drivers in the road transport sector.
Even though the strike broke out immediately after the Royal Decree-law 3/2022 came into effect, showing that its intended beneficiaries regard its measures as insufficient, it is important to know this legal development especially at times of tension.
The new rule modifies several Laws governing this field. For the sake of brevity, we will focus only on the changes to the Law 15/2009, on the Contract of Carriage of Goods by Road, which we believe are worth noting.
The changes affect article 20 (subjects required to perform loading and unloading of goods), article 22 (compensation for stoppage) and article 38 (freight revaluation subject to fuel price changes).
In essence, these changes can be summarized as follows:
- Loading and unloading operations will be borne by the shipper and receiver, respectively, unless otherwise agreed in writing, before the transport begins. The carrier will perform such operations in exchange for an agreed remuneration which must be distinct and independent from the agreed freight, and which will appear as such in the final invoice. This agreement is never presumed.
The purpose of this legal change, according to the Spanish Government, is the attempt to reduce the toughness of this work. It is estimated that Spain is short of 15,000 professional drivers. Moreover, difficult working conditions is perceived as a barrier to women taking up employment in this sector.
- Where the vehicle must wait longer than one hour until its loading or unloading is completed, the carrier is entitled to require the shipper to pay compensation for such cessation of activity. This period shall be counted from the time when the vehicle is made available for loading or unloading in the terms required by the contract.
The novelty here is that the stoppage period has been substantially shortened from two hours to one hour.
- Where the price of fuel has increased between the day of the conclusion of the contract and the time of the transport, the carrier may increase in the invoice the freight initially agreed, taking into account the amount resulting from the application of the criteria or formulas which, at each moment, the Administration has laid out in the corresponding general conditions for the carriage of goods by road. Such criteria or formulas determined by the Administration must be based on the impact that the diesel variation may have on the cost structure of the carrier´s business. The criteria or formulas indicated must be automatically applied provided that the price of fuel has undergone an increase of 5% or more, except that, expressly and in writing, a minor percentage had been agreed prior or simultaneously to the conclusion of the contract. Any agreement to the contrary will be null and void.
This provision was already present in the Law 15/2009, but subject to the agreement of the parties. From 2ndMarch onwards, the price adjustment is compulsory by law if the increase in fuel price is above 5%. The rationale behind this provision is that the price of diesel has risen by 32% from October 2020 to October 2021, which makes the viability of small businesses -half of the sector- impossible to sustain.
At the time of writing, the strike continues but with a less negative impact in the supply chain. The Ministry of Transport has promised a new regulation by July this year to meet the demands of the sector. The situation is still evolving.
PEREZ ALBORS & CO