On 14 March 2020, Royal Decree 463/2020 declaring the State of Alarm in Spain was published in order to manage the situation of health crisis caused by COVID-19. It includes measures related to temporary requisitions of compulsory personal goods or services, measures to ensure the supply of goods and services necessary for health, food, energy and essential services,… which we explain below.
During the term of the State of Alarm, successive decrees may be issued amending or extending the measures laid down there in it. The State of Alarm is declared for a fortnight of nature, that is, until 30 March 2020, without prejudice to its possible extension.
Measures related to temporary requisitions of compulsory personal goods or services, measures to ensure the supply of goods and services necessary for health, food, energy and essential services, also include measures with general impact on business or professional activity, which we explain below.
1. WHAT LIMITATIONS ON PEOPLE’S FREEDOM OF MOVEMENT ARE SET?
During the term of the State of Alarm, persons shall be limited to their right to free movement by allowing them only to circulate on public means for public use for the purpose of carrying out the following activities:
- a) Procurement of food, pharmaceuticals and necessities.
- b) Assistance to health centres, services and establishments.
- c) Displacement to the workplace to perform its employment, professional or business benefit.
- d) Return to the place of habitual residence.
- (e) Assistance and care for adults, minors, dependents, persons with disabilities or particularly vulnerable persons.
- (f) Displacement to financial and insurance institutions.
- g) Because of force majeure or situation of need.
- (h) Any other activity of a similar nature to be done individually, unless accompanied by persons with disabilities or for other justified cause.
Likewise, private vehicles will be allowed to be circulated on public means for the performance of the activities referred to in the previous paragraph or for refueling at petrol stations or service stations.
2. ARE THERE ANY RESTRICTIONS ON THE FREEDOM OF MOVEMENT OF WORKING PERSONS?
In principle, no other restrictions are provided for workers other than those provided for by any other citizen, although, with regard to work, they shall have authorization and freedom to go to their jobs and return to their home.
3. IS ANY RESTRICTION OR MEASURE OF CONTAINMENT ESTABLISHED FOR THE BUSINESS/PROFESSIONAL ACTIVITY OF SELF-EMPLOYED PERSONS AND/OR COMPANIES?
The Alarm State measure provides for the restriction and/or containment of the economic and/or commercial activity of undertakings and/or self-employed persons depending on the type of activity in which they are classified.
Restriction measures are basically of two types:
- Suspension of the opening to the public of premises and retail establishments.
- Suspension of hospitality and catering activities.
4. WHICH COMPANIES OR ACTIVITIES WILL BE AFFECTED BY THE TEMPORARY PROHIBITION OF THE OPENING TO THE PUBLIC OF PREMISES OR ESTABLISHMENTS?
The undertakings or activities that are affected by the measure are all commercial activities carried out in premises and/or establishments that have the status of retailers,that is, those engaged in the marketing of products intended for the final consumer.
Any other activity or establishment which may pose a risk of contagion may also be suspended.
However, not all premises or establishments intended for retail activity are affected by the prohibition on openness to the public, as it will allow the opening of those whose activity or trade is dedicated to:
- Trade in food, beverages, products and goods of first need,
- pharmaceutical, medical, optical and orthopaedic establishments,
- retail establishments for hygienic products,
- press and stationery,
- automotive fuel,
- technology and telecommunications equipment,
- pet food,
- internet, telephone or correspondence,
- dry cleaners and laundry facilities.
5. WHAT HOSPITALITY AND RESTORATION ACTIVITIES ARE SUSPENDED BY THE MEASURE?
The rule provides for the suspension of all hospitality and catering activities, and this activity may be provided exclusively in the method of home delivery.
6. HOW DO THE ABOVE MEASURES AFFECT MY ACTIVITY OR COMPANY?
In the event that you carry out a wholesale or distribution business activity, you will not be affected by such a measure, unless, in the opinion of the competent authority, it may pose a risk of contagion.
In the event that you or your company has premises and/or establishments aimed at the public of a retail (end-consumer) activity that is not classified in any of the permitted activities, you may not carry out or maintain your activity open to the public for as long as the measure remains in effect.
In the event that you or your company is in a hospitality and catering activity, your activity will be suspended, unless you provide home services.
7. IF I HAVE A BAN ON OPENING TO THE PUBLIC, CAN I PERFORM MY ACTIVITY, OR PART OF IT, WITHOUT OPENING THE PLACE OR ESTABLISHMENT?
The rule prohibits the opening of premises and establishments to carry out a commercial activity, directly, to the public, however, does not prevent the activity of the undertaking, to the extent feasible or make sense, from being carried out without being opened to the public within premises or establishments, or where it is possible to carry it out in the form of telework.
Therefore, if your activity does not depend on the opening of the premises or establishment to the public, you can carry out your economic activity in your premises provided that they remain closed to the public (e.g. customer service activity, administrative activities, maintenance and cleaning activities, etc.).
8. WHAT MEASURES ARE SET FORTH IN CONNECTION WITH TRANSPORT?
Reductions of 50% are established in offers of transport services, distinguishing between passenger transport, whatever the means, provided by contract companies or public service obligations or completely private, except for commuter rail services and passenger transport services of autonomic or local competition, which are kept in their entirety, further requiring daily cleaning and disinfection measures and separation to prevent contagion between passengers , as well as including warning messages on tickets advising travel.
Public transport services for road, rail, air and sea passengers of State competence which are subject to public contracts or public service obligations (PSOs) shall reduce their total offer of operations by at least the following percentages, which may also be amended by the Minister of Transport:
- Medium-distance rail services: 50%
- Medium-distance rail services-AVANT: 50%
- Regular road passenger transport services: 50%
- Air transport services subject to OSP: 50%
- Maritime transport services subject to navigation contract: 50%.
Commuter rail services will keep your service offering.
Public transport services for road, rail and maritime passengers of autonomic or local competence which are subject to public contract or PSO, or are publicly owned, shall maintain their offer of carriage.
Specific criteria shall be established for transport between the Peninsula and non-peninsular territories, as well as for inter-island transport.
Passenger transport operators are required to carry out a daily cleaning of transport vehicles, in accordance with the recommendations established by the Ministry of Health.
Online ticketing systems shall include during the ticketing process a sufficiently visible message discouraging travel except for reasons that cannot be postponed. And in services where the ticket grants a seated seat or cabin, operators will take the necessary measures to ensure the maximum possible separation between passengers.
To this end, it has been considered appropriate to lay down the necessary instructions to ensure access to the necessary services of professionals in this sector in the exercise of their activity.
- In particular, it is established that fuel supply establishments with toilet services shall facilitate their use to professional drivers.
- Likewise, loading and unloading centres with such installations shall, as far as possible, make it easier for professional drivers to carry out operations there.
Measures that may be required of drivers for access to such facilities shall follow the criteria and prevention instructions generally established by the Ministry of Health, or those specifically established in this area by that body.
- In addition, in order to allow adequate breaks in compliance with the regulations of driving and rest times, which are essential to be able to carry out transport operations, those establishments that have kitchen, catering services, or prepared food dispensers, must provide the professional carrier with a catering service.
For public transport services of road, rail and maritime passengers of autonomic or local competence who are subject to public contract or PSO, or are publicly owned, the supply of transport must be maintained, although percentages of reduction of services may be established if advised by the health situation, as well as other specific conditions for the provision of such services.
In order to ensure the effective application of the measures provided for in that provision, it has been considered appropriate to clarify the scope of action of each competent territorial authority in relation to public transport services within its competence.
Specifically, it states:
- Each competent regional or local authority may determine the percentage reduction of public transport services of its ownership which it deems appropriate, in accordance with the reality of the mobility needs existing in its territories and the evolution of the health situation, ensuring, in any event, that citizens can access their jobs and basic services if necessary.
- They may also lay down specific conditions for the provision of such services.
- Local authorities which, under the previous point, set percentages for the reduction of public services for regular passenger transport owned by them shall communicate this to the relevant autonomous community. The autonomous communities, for their part, shall communicate to the Ministry of Transport, Mobility and Urban Agenda the information they have received from the local authorities of their territory, as well as their own, so that actions can be coordinated throughout the national territory.
9. WHAT SANCTIONING REGIME IS ESTABLISHED IN THE EVENT OF NON-COMPLIANCE WITH THESE MEASURES?
It expressly establishes the duty of the public to collaborate and not to impede the work of the agents of the authority in the exercise of their duties.
It also provides for the rule that non-compliance or resistance to the orders of the competent authorities in the state of alarm shall be punished in accordance with the laws, in the terms laid down in Article Ten of Organic Law 4/1981 of 1 June, I also provide that if such acts were committed by authorities, the powers of those acts that were necessary for the performance of the measures agreed in the execution of the declaration of alarm status may be assumed by the competent authority during its term.
Failure to comply with the measures included in the decree declaring a state of alarm in the face of the health crisis caused by covid-19 could in principle result in fines of EUR 100 to a 3-month prison sentence for a crime of disobedience and 4 years for attack on the authority. Nevertherever, sources of Interior that the agents of the different bodies will always act from the beginning of proportionality. It has also been noted from the Government that no particular emphasis has been placed on the sanctioning regime in the DR, as the conditions of the alarm status declaration do not respond to a scenario of disturbance or conflict in the street.
The list of sanctions handled by state law enforcement is based on four rules: the Citizen Security Act, known as the Gag Act; public health, civil protection and the Criminal Code.
According to that regulation, those who fail to comply with the measures laid down may, for example, face penalties of between EUR 100 and EUR 600 for removing a fence or seal; up to EUR 30,000 for refusing to identify himself to an agent or up to 60,000 for behaviors that seriously endanger the health of the population.
The crime of disobedience to authority agents or private security personnel is punishable by one to three months in prison. The attack provides for sentences of up to four years in prison (and health personnel are included among the agents of authority for this purpose).
Agents should refer their actions to government sub-delegations, if possible with photographic reporting.
10. SUSPENSION OF PROCEDURAL, ADMINISTRATIVE, PRESCRIPTION AND EXPIRY PERIODS
Royal Decree 463/2020 provides that the terms are suspended and the time limits of procedural laws for all court orders are interrupted. The calculation of these deadlines will resume when the Royal Decree or its extensions, if any, are lost. This interruption shall not apply in some cases expressly provided for in the Royal Decree, relating mainly to:
- Within criminal jurisdiction, habeas corpus proceedings, guard service actions, prison surveillance and gender-based violence.
- Within the labour jurisdiction, collective conflicts and protection of fundamental law and freedoms.
- Within the administrative dispute jurisdiction, those related to the protection of fundamental rights.
- Within the civil jurisdiction, those relating to the protection of minors or detention by psychic disorder.
It is also established that the terms are suspended and the processing times of all procedures of public sector entities are discontinued, which will also resume when the Royal Decree or its extensions, if any, are lost. This suspension and interruption will affect the entire Public Sector, i.e. the General Administration of the State, the Administrations of the Autonomous Communities, the Local Administration Entities and the institutional public sector. In any event, the appropriate administrative body is expected to be able to give a reasoned agreement on the measures it sees necessary to avoid serious prejudice to the rights and interests of the parties concerned in the proceedings, provided that they are in conformity with those measures or that the time limit is not suspended.
All this shall not affect the procedures and decisions relating to situations closely linked to the facts which have justified the alarm status.
The rule also declares the suspension of the limitation and expiration periods of any actions and rights during the duration of the alarm state.
A) Procedural deadlines
- Terms are suspended and the time limits provided for in the procedural laws for all court orders are suspended and interrupted. The calculation of the deadlines will resume at the time when this royal decree loses validity or, where appropriate, the extensions thereof.
- In the criminal court order, the suspension and interruption shall not apply to habeas corpus proceedings, actions entrusted to the on-call services, actions with detainees, protective orders, urgent actions in prison surveillance and precautionary measures for violence against women or minors. Nor to urgent and non-deferral actions in the instruction phase.
- In the contentious court order, the procedure for the protection of the fundamental rights of the person provided for in Articles 114 and following LJCA, nor the processing of judicial authorisations or ratifications provided for in Article 8.6 LJCA (entry into domicile).
- In the social order, collective conflict procedures and for the protection of fundamental rights and public freedoms.
- In the civil order, judicial authorization for non-voluntary detention on the basis of psychic disorder (art. 763 LEC) and the adoption of child protection measures (art. 158 Cc).
However, the judge or court may agree to the practice of any legal proceedings that are necessary to avoid irreparable harm.
B) Administrative deadlines
- Terms are suspended and deadlines for processing public sector entities’ procedures are interrupted. The calculation of the deadlines will resume at the time when this royal decree loses validity or, where appropriate, the extensions thereof.
- The suspension of terms and the interruption of time limits shall apply to the entire public sector as defined in Law 39/2015 of 1 October (LPA). According to Article 2 there is:
- (a) The General Administration of the State.
- b) The Administrations of the Autonomous Communities.
- c) The Entities that make up the Local Administration.
- d) The institutional public sector.
- However, the competent body may agree, by reasoned decision, on the measures of organisation and instruction strictly necessary to avoid serious prejudice to the rights and interests of the person concerned in the proceedings and provided that the person concerned agrees, or where the person concerned agrees that the period is not suspended.
- This provision shall not affect procedures and decisions where they refer to situations closely linked to the facts justifying the alarm status.
C) Limitation and expiration periods.
The limitation periods and expiration of any actions and rights shall be suspended during the term of the State of Alarm and, where appropriate, the extensions adopted.
>> RECORDS AND NOTES: Notary and registrations will work but the public will not be able to access them, except for exceptions.
This suspension does not appear to affect the registration procedure (presentation of documents, duration of the presentation seat…) until otherwise provided. This is based on the registration procedure being regulated preferably by mortgage legislation and not by Law 39/2015 of 1 October (LPA), with appeals being against the qualifications of registrars served by the civil court order. THE RESOLUTION OF THE GENERAL DIRECTORATE OF LEGAL SECURITY AND PUBLIC FE OF 15 MARCH 2020 AGREEING MEASURES AFTER THE STATEMENT OF THE STATE OF ALARM, does not speak directly on this matter, but indirectly when ratifying the extension of the qualification and clearance period.
However, in accordance with the second paragraph of the RESOLUTION OF THE GENERAL DIRECTORATE OF LEGAL SECURITY AND PUBLIC FE of 13 March 2020, as amended by the first provision of the RESOLUTION OF THE GENERAL DIRECTORATE OF LEGAL SECURITY AND PUBLIC FE 15 March 2020, the qualification and clearance period for the duration of the seat for presentation of documents in force on 15 March 2020 is extended.
It seems fully in application to the registration seats. For example, preventive annotations will not expire for the time being, even after four years, if this occurs after 14 March 2020 (see art. 86 LH). This is confirmed by the RESOLUTION OF THE GENERAL ADDRESS OF LEGAL SECURITY AND PUBLIC FE 15 March 2020, in interpreting the fourth additional provision as fully applicable to the registrations of property, commercial and movable property.
The Royal Decree ratifies the autonomic decisions, so it will be necessary to analyze each case in detail.
Finally, it should be recalled that, in accordance with Article Third.2 of the Organic Law, who, as a result of the application of the acts and provisions adopted during the term of the state of alarm, suffer, directly or in their person, rights or property, damages or damages for acts that are not attributable to them, shall have the right to be compensated in accordance with the provisions of the laws.
If you have any questions or need any clarification with the measures taken from this Royal Decree-Law decreed the State of Alarm in Spain,you can
any of our advisors so that we can help you.