Any legal questions related to Coronavirus situation in Spain?

Mariedav,

Thank you for the one intellible reply.  Unsure it's the law, but one local person's interpretation.  But It was more the logic of the "law" that I was questioning, not the validity.

According to the royal decree 10/2020, of 29^th of March that the Council of Ministers has just approved, this permit will not apply to the following workers:

1. Workers from companies engaged in activities that must continue to be carried out under articles 10.1, 10.4, 16 and 18 of Royal Decree 463/2020, of March 14.

10. 1. The opening to the public of retail premises and establishments is suspended, with the exception of commercial retail establishments for food, beverages, products and basic necessities, pharmaceutical establishments, health centers, veterinary centers or clinics, opticians and orthopedic products. , hygiene products, press and stationery, automotive fuel, tobacconists, technological and telecommunications equipment, pet food, internet commerce, telephone or correspondence, dry cleaners, laundries and the professional practice of hairdressing at home. In any case, the activity of any establishment that, in the opinion of the competent authority, may pose a risk of contagion due to the conditions in which it is being developed will be suspended.

10.4. Hotel and restaurant activities are suspended, and home delivery services can be exclusively provided.

Article 16 Customs transit

The delegated competent authorities shall adopt the necessary measures to guarantee customs transit at the points of entry or border inspection points located in ports or airports. In this regard, priority products will be addressed.

Article 18 Critical operators of essential services

1. The critical operators of essential services provided for in Law 8/2011, of April 28, which establishes measures for the protection of critical infrastructures, shall adopt the necessary measures to ensure the provision of essential services that are their own.

2. Said requirement will also be adopted by those companies and suppliers that, not having the consideration of critics, are essential to ensure the supply of the population and the essential services themselves.

2. Those that work in the activities that participate in the supply chain of the market and in the operation of the services of the production centers of basic goods and services, including food, beverages, animal feed, hygiene products, medicines, health products or any product necessary for the protection of health, allowing the distribution of the same from the origin to the final destination.

3. Those that provide services in the hotel and restaurant activities that provide home delivery services.

4. Those that provide services in the chain of production and distribution of goods, services, sanitary technology, medical material, protective equipment, sanitary and hospital equipment and any other materials necessary for the provision of sanitary services.

5. Those essential for the maintenance of the productive activities of the manufacturing industry that offer the supplies, equipment and materials necessary for the correct development of the essential activities included in this annex.

6. Those that carry out transport services, both for people and goods, that continue to be developed since the declaration of the state of alarm, as well as those that must ensure the maintenance of the means used for it, under the regulations approved by the competent authority and the delegated competent authorities since the declaration of the state of alarm.

7. Those that provide services in Penitentiary Institutions, civil protection, maritime rescue, rescue and fire prevention and extinction, mine safety, and traffic and road safety. Likewise, those that work in private security companies that provide security transport services, response to alarms, round-trip or discontinuous surveillance, and those that are necessary to use for the performance of security services in guarantee of essential services and supplying the population.

8. The indispensable ones that support the maintenance of the material and equipment of the armed forces.

9. Those of health centers, services and establishments, as well as people who (i) serve the elderly, minors, dependents or people with disabilities, and people who work in companies, R&D and biotechnology centers linked to COVID-19, (ii) the animal facilities associated with them, (iii) the maintenance of the minimum services of the facilities associated with them and the companies supplying the products necessary for said investigation, and (iv) the people who work in funeral services and other related activities.

10. Those of animal health centers, services and establishments.

11. Those that provide services in points of sale of the press and in the media or news agencies of public and private ownership, as well as in their printing or distribution.

12. Those of financial services companies, including banking, insurance and investment companies, for the provision of essential services, and the activities of payment infrastructures and financial markets.

13. Those of telecommunications and audiovisual companies and essential computer services, as well as those networks and facilities that support them and the sectors or subsectors necessary for their proper functioning, especially those that are essential for the adequate provision of public services, as well as the operation of the non-presential work of public employees.

14. Those that provide services related to the protection and care of victims of gender violence.

15. Those who work as lawyers, attorneys, social graduates, translators, interpreters and psychologists and who attend the non-suspended procedural proceedings.

16. Those that provide services in law firms and legal advisory services, administrative agencies and social graduates, and third-party and own occupational risk prevention services, in urgent matters.

17. Those that provide services in the notaries and registries for the fulfillment of the essential services set by the General Directorate of Legal Security and Public Faith.

18. Those that provide cleaning, maintenance, urgent breakdown repair and surveillance services, as well as providing services in the collection, management and treatment of hazardous waste, as well as urban, hazardous and non-hazardous solid waste, collection and treatment wastewater, decontamination activities and other waste management services and transport and removal of by-products or in any of the entities belonging to the public sector.

19. Those who work in refugee reception centers and temporary immigrant stay centers and privately managed public entities subsidized by the State Secretariat for Migration

20. Those who work in water supply, purification, conduction, purification and sanitation activities.

21. Those those are essential for the provision of meteorological forecasting and observation services and the associated processes of maintenance, surveillance and control of operational processes.

22. Those of the operator designated by the State to provide the universal postal service, in order to provide the collection, admission, transport, classification, distribution and delivery services for the sole purpose of guaranteeing said universal postal service.

23. Those that provide services in those sectors or subsectors that participate in the import and supply of sanitary material, such as logistics, transport, warehousing, customs transit (freight forwarders) companies and, in general, all those that participate in sanitary corridors .

24. Those who work in the distribution and delivery of products purchased in commerce by internet, telephone or correspondence.

25. Any others that provide services that have been considered essential.

Not applicable in time off sick, Temporary Employment Regulation Files (ERTE) and maternity leave

The royal decree stresses that this permit will mean that workers will retain the right to the remuneration that would have corresponded to them if they were rendering services on a regular basis, including basic salary and salary supplements.

The recovery of working hours may be effective from the day following the end of the state of alarm until December 31, 2020. This recovery must be negotiated in a consultation period open for this purpose between the company and the legal representation of working people, which will have a maximum duration of 7 days.

However, it will not be applicable by companies when they are applying or requesting a temporary employment regulation file (ERTE), since this measure also allows an adequate response to the need to further restrict the mobility of people. . Companies, where appropriate, that have only reduced a percentage of the activity, with the processing of the corresponding ERTE to reduce the working hours of the working people, will be able to combine both measures.

In no case may the recoverable paid leave be applied to people who are on sick leave due to temporary disability or whose contract is suspended for other legally established causes, nor to those for whom it is possible to carry out the activity in the form of work distance, in accordance with the provisions of article 5 of royal decree-law 8/2020, of March 17. Neither those who are enjoying maternity or paternity leave

Thanks for the info Maria

A pleasure!

M

Dear Maria, 

Can I ask about some of the practicalities going forward please?

How does this affect conveyancing where deposits have been placed and are awaiting all necessary procedures to complete the transaction? What are the rights for return of those monies if this process is delayed for an unreasonable period due to COVID 19 or are contract dates now legally protected by extensions under this scenario?
What about those purchasers who through no fault of their own have lost their jobs and income source in the interim period and can no longer afford to purchase? Will they be contract bound to complete or will the seller be entitled to retain the purchase  deposit as a form of recompense under this scenario? Where does the law stand with regard to exceptional circumstance?

Likewise how does this affect enforcement of successful legal rulings awaiting final procedures (for instance the submission and enforcement of interest and costs calculations that still await judicial approval ) to regain those monies as per awards already achieved, where monies are STILL being retained by the Banks without any possibility of interim recompense? 
Are the courts and judiciary not classified as required in "Public faith " to enforce and complete the processes relating to these successful award of monies, especially in respect of entitled clients who could be in critical need of those monies?

Is this not deemed an essential service on a par with Banking provision given the Banks are holding monies that in law do not belong to them?
 

Thank you for all your ongoing educative posts Maria. :)

FYI and for Acer in particular.

We've had a message from our administrators ref the new restrictions in force today. The repair to our pool will now not go ahead. However, the cleaning, topping up and sanitisation of the pool areas will continue. 

I'm assuming cleaning, topping up etc means the water purity will continue to be checked.

I'm involved with a building contract that's just started in the UK.  The scaffolding is all in place, but it's now come to a complete halt.  The term "force mejuere" has been mentioned recently, but I struggle to understand what this means in practical.

I believe that, like the UK, "force mejuere" exists as an implied condition in Spain, whether or not it is actually expressed within the contract. The delay seems to be reasonably defined as an "uforeeable circumstance"?   But if this is the case who pays for the extra costs?  I appreciate that the answer given will reflect Spanish practice, but very interested to hear any thoughts please. 

For example, in this scenario, if this happened in Spain, who pays for the surcharge applicable to the scaffolding costs?  Does the clock just stop on time penalty clauses?

Hi Mr or Mrs acer

Not sure why you are asking about force majeure in Spain which maybe irrelevant to your situation in the UK. Perhaps you should take legal advice from the legal authority relevant to your country and situation.

Force majeure refers to a clause that is included in contracts to remove liability for natural and unavoidable catastrophes that interrupt the expected course of events and restrict participants from fulfilling obligations.

Thanks for yours MarieDav.  That makes more sense - the maintenance work should continue, particularly for non-resident owners, many of whom will be away currently. 

Not nice to return to find your pool water gone green or a dead cat in there.  

DaniMenzes - UYOWARS.

Ads, Answers below in bold green ( same text as your email): 

Dear Maria, 

Can I ask about some of the practicalities going forward please?

How does this affect conveyancing where deposits have been placed and are awaiting all necessary procedures to complete the transaction? Renegotiation is obligatory, if no negotiated solution can be settled, cancellation is possible. What are the rights for return of those monies if this process is delayed for an unreasonable period due to COVID 19 or are contract dates now legally protected by extensions under this scenario? As per answer above.
What about those purchasers who through no fault of their own have lost their jobs and income source in the interim period and can no longer afford to purchase? Same answer as above. Will they be contract bound to complete or will the seller be entitled to retain the purchase  deposit as a form of recompense under this scenario? Where does the law stand with regard to exceptional circumstance?

(Pacta Sunt Servanda) Agreements/ settlement are to be met, that is a main legal principle in contract Law which needs to be understood under the premise that circunstances keep being the same as when contract was signed ( Rebus sic Stantibus). An exception applicable to current circunstances is also Force Majeure.

Likewise how does this affect enforcement of successful legal rulings awaiting final procedures (for instance the submission and enforcement of interest and costs calculations that still await judicial approval ) to regain those monies as per awards already achieved, where monies are STILL being retained by the Banks without any possibility of interim recompense? All judicial deadlines are frozen at present.  

Are the courts and judiciary not classified as required in "Public faith " to enforce and complete the processes relating to these successful award of monies, especially in respect of entitled clients who could be in critical need of those monies? Courts are being requested to deliver money in their accounts to legal representatives.

Is this not deemed an essential service on a par with Banking provision given the Banks are holding monies that in law do not belong to them? As said, obligations related to Court proceedings are frozen at present.
 

Thank you for all your ongoing educative posts Maria. :) Thank you. Keep safe and healthy.

Yes, Force Majeure and Fortuitous Event  concepts exist in Spain of course and they are applicable for Coronavirus sitautions in many cases. Ever case, as always in Law, is different though.

It also exists the principle I have explained to Anne in this thread called " Rebus Sic Stantibus", which means that a contract needs to be met if cicunstances keep beeing the same.

They are called by the legislator as "Unforeseeable and unavoidable events". Unpredictable and unavoidable events, exonerate the liability for breach of the obligation of the debtor (in the case of default, also of the creditor).

For this to operate, the event must meet the following requirements:

It must be a fact not attributable to the debtor.
It must suppose the fulfillment of an impossible act.
It must be unforeseen, or well planned but inevitable.
The fortuitous or inevitable event must be the cause and have as a consequence the breach of the obligation.

The and force majeure generally have the following effects:

They can cause total and final impossibility; freeing the debtor from the fulfillment of the obligation, although there are exceptions, such as (1) the case of generic obligations in which the exception of the fortuitous event and force majeure does not operate, since the generic thing can be replaced by another of the same gender, (2)  and the exceptions provided for in Art. 1105, Civil Code, (3)  the exceptions established in the law, (4) those agreed by the interested parties.

They can cause partial impossibility; the debtor is released only in the part that it is impossible to fulfill, but still bound by the part that can be carried out.

They can cause temporary impossibility; the debtor is released from the responsibility for default.

Dear Maria,

Just a note to thank you for your post - much appreciated.

Thanks and regards

My pleasure!

M

Maria,

Thank you for your replies.

Again in terms of the practicalities here are some more questions I'm afraid....

Who in the court system are actually allowed to work under the current directive?

In terms of all those cases that have achieved FINAL rulings no longer requiring court sittings.....

Are court administrators allowed to continue working? Are judges allowed to continue providing judicial approval to the many outstanding submissions of interest and costs calculations? 

So where you say that courts are being requested to deliver monies that are already being held in court accounts back to legal representatives ( i.e. where Banks have already deposited the monies according to successful final rulings) how can this be accomplished if all courts and its administration remain closed?

What exactly is happening in the administrative side of the legal system?

Is there no current opportunity to reduce the major backlog of courts withholding monies due for return in this scenario?

Is this not deemed an essential service? Is this timely enforcement not deemed part of the rule of law?

Likewise, where FINAL rulings have already been achieved, is it not deemed an essential service that court administrators and judges could continue to address the major backlog of cases where calculations for interest and costs could be given timely judicial approval?

Is this an ideal opportunity therefore to address the major backlog  for court administrators and judges to be afforded the right to continue working under existing safety guidelines ( the same as other essential workers) ?

You know ads I cant help thinking that Maria has much more on her mind then answering the many questions you bombard her with, you know that the Spanish legal system can be slow, or almost at a stop in normal times, these are very drastic times that have never happened to any of us before, so I can only guese the answers to your questions.......Spain ain't doing anything right now, to busy with you know what.

Your posting is NOT helpful Baz when trying to comprehend the detail that affects MANY.

As people learn of the realities on this website they are less likely to " bombard " Maria with questions, so your logic is completely wrong in this regard.
You have no right to suggest that people should not be informed of how the legal system is working at present, and whether administrative staff and judges are currently being treated as "essential" , especially when you read that the likes of registrars and notaries have been identified as being able to continue working.

I take great exception to your inference that I am bombarding Maria with questions. Just the opposite I am trying to assist in allowing many to comprehend the details of how the system is functioning going forward under this current scenario.

My post wasn't intended to be helpful. 

So as people learn of the realities on this website they are less likely to bombard Marie with questions because you asked the questions, I have to believe that if someone is stuck with a house sale or purchase due to these times then going to their solicitor they probably have already done, and accepted the situation for what it is, no more no less.

In the UK at the moment buying and selling house's have stopped, by the government no less,  no reason to believe the same hasn't,  almost,  happened in Spain with no doubt plenty of information concerning the situation via the media, and again by the persons legal team.

You asked Maria 10 questions about the same thing, if thats not bombarding her then what is?   Have you given any thoughts that she might be working from home, while trying to run a home, looking after children perhaps, elderly parents, and so forth.

More stress is not whats needed in these times.

Maria will no doubt speak for herself. We have worked well over the many years, trying to educate through this website. We have achieved a mutual respect so it is not for you to try and stir up unnecessary division and nasty insinuations. 
 

You obviously don't comprehend the many who are not concerned about the conveyancing aspects that you refer to but are wondering what is happening to the monies owed by the Banks following successful final rulings, after waiting more than a decade for their monies to be returned, and trying to understand why the administrators and judges are not deemed to be essential workers within the justice system.

You are totally out of order on this Baz and demonstrate little comprehension of how this site works in terms of alleviating stress through educative posts....there are so many struggling to comprehend what is happening behind the scenes in the justice system and who is working, who is not, and understand why notaries and registrars are working and not court administrators and judges. 

Maria set up this thread to try and help, so it is not for you to decide who should ask questions and who should not. 
Your observation that you were not intending to be helpful says it all.

Please stop this divisive nonsense.

Essential services of Justice Administration during Covid19:

https://costaluzlawyers.es/blog/what-are-the-essential-services-of-justice-administration-during-the-covid-19-crisis-in-spain/