Transport & Shipping Newsletter - April 2018 - Judgments

The ROTT requirement of a minimum fleet of three vehicles is declared contrary to Community law

The CJEU, in its judgment of 8 February 2018, declared contrary to Community Law the requirement for a minimum fleet of three vehicles imposed by the Road Transport Regulations (Reglamento de Ordenación del Transporte Terrestre or ROTT) for the grant of a license for transporting both goods and passengers by bus.

Following a complaint filed with the European Commission and the subsequent infringement proceeding against Spain, the ROTT was declared contrary to Community regulations. Accordingly, in compliance with the new judgment, the ROTT must be reviewed and brought into line with Community law. The new ROTT is expected to be published around January 2019. Various parts of the ROTT must be reviewed following the CJEU judgment.

The CJEU took the view that the requirement of a minimum fleet of three vehicles, which would represent a loading capacity of at least 60 tons, where a license authorizing transport by any class of vehicle is requested, as stipulated under article 10 of the ROTT, is incompatible with articles 3 and 5 of Regulation (EC) 1071/2009 establishing common rules concerning the conditions to be complied with to pursue the occupation of road transport operator.

Obligations for air and sea transport operators in connection with relief for residents

In a proceeding on an infringement of the law on subsidies and the refund of amounts overpaid, with respect to the system of transport relief for residents of the Canary Islands, the Supreme Court took the view that both air and sea transport companies act as cooperating entities in the implementation of promotional mechanisms by the Public Authority, pursuant to article 12 of the General Subsidies Law.

Following the appeal filed by an air transport company operating between the Canary Islands and the Peninsula, the Court held, in its judgment 490/2018, of March 21, 2018 (Rec. 1707/2015), that all obligations imposed on suppliers of the transport service, in connection with the application of relief to passengers, its settlement with the Public Authority, control, monitoring and its singular action, justify the treatment of air transport companies, such as the current appellant, as cooperating entities within the meaning of article 12 of the General Subsidies Law. A number of obligations are imposed on these companies in connection with the control of relief settled with public funds earmarked for the promotion of transport, and their particular function in the implementation of the relief on air routes permits their characterization as cooperating entities, pursuant to article 12 of the General Subsidies Law. The particularities of the relief system and its regulations, as well as the settlement of public funds, mean that transport companies fit the definition of cooperating entity and, accordingly, the procedure for refunding the amounts claimed will apply.

The passenger subsidy system consisting of the reduction of a percentage of the rates for regular air and sea transport services for residents between the Autonomous Communities of the Canary Islands, of the Balearic Islands and the Autonomous Cities of Ceuta and Melilla is a system that subsidizes passengers who, as such, obtain relief on the air or sea rate. The amount of the relief is discounted by the transport companies in accordance with the settlement system provided for under Royal Decree 1316/2001, of November 30, 2001, regulating the tariff relief.