News

Administrative procedures following port state controls: Can a guarantee be maintained in a new procedure when the former procedure wherein it was issued has been cancelled?

We legally assisted a Ship Owner in the Administrative Procedure which followed a Port State Control Inspection, as the deficiencies were considered to be an infringement to the Spanish Merchant Marine and Ports Law.

However this Administrative Procedure was cancelled due to time-bar, as the General Directorate of Merchant Marine did not resolve and notify a Final Resolution within the one (1) year term established by the Spanish Administrative Procedure Law 30/92.

As the alleged infringement committed by the Ship Owner was not time-barred under the Spanish Administrative Procedure Law 30/92, a new procedure could be started based on the same infringement. Therefore, the General Directorate of Merchant Marine issued a Resolution ordering that the former administrative procedure should be closed due to time-bar and that a new administrative procedure should be initiated and the guarantee lodged in the former  administrative procedure should be maintained in the new administrative procedure.

After having complied with the necessary actions, we filed a suit before the Administrative Courts claiming the nullity of the order of maintainance of the guarantee in the new administrative procedure.

Our claim was dismissed at First Instance and therefore we proceeded to present an Appeal which has been recently rendered in favour of our allegations.

The Judgment issued by the Appeal Court has strictly applied the Spanish Administrative Procedure Law 30/92 and has ruled that the precautionary measures (in this case the guarantee) have an accessory and instrumental aspect within the main procedure and therefore they extinguish with the efficiency of the administrative resolution that closes the main procedure.

The Judgment mentions that indeed a guarantee can be requested within the new administrative procedure, but that this request should comply with what is established in the Spanish Administrative Procedure Law 30/92, mainly that the precautionary measure adopted with urgency prior to the beginning of the administrative procedure, should be confirmed, modified or lifted within the next fifteen (15) days of their adoption in the Order of Initiation of the administrative procedure.

In the current matter, the Order of Initiation of the new administrative procedure was issued and notified one (1) year and eighteen (18) days after the order of maintainance of the guarantee, and the said Order of Initiation did not expressly confirm the maintainance of the guarantee.

The Appeal Court ruled that the guarantee lodged by the Ship Owners should be cancelled and returned.

If any Ship Owner or Operator would like to receive advice as to whether their administrative procedure could have their guarantee returned, we encourage them to contact us in order to discuss the matter.