Roj: SAN 4314/2013 Id Cendoj: 28079230082013100589 Court: National Court. Contentious Chamber Location: Madrid Section: 8 Appeal No.: 81/2012 Resolution No.: Procedure: CONTENTIOUS – APPEAL Reporter: JAVIER BERMUDEZ SANCHEZ Type of Decision: Judgment APPEAL JUDGMENT Madrid, October twenty-second, two thousand thirteen.
Seen by the Chamber named above the Appeal No. 81/2012, filed by RETTO EXPRES S.L., represented by Attorney D. Alfonso de Murga y Florido, against the Judgment issued by the Central Administrative Court No. 3 on November 17, 2011, in the contentious proceeding before said Court under ordinary procedure number 18/2010; with the Administration being a party, represented by the State Attorney.
FACTS FIRST: The aforementioned appellant filed an administrative contentious appeal before the Central Administrative Court against the Resolution of the General Secretariat of Transport of the Directorate General of Civil Aviation of the Ministry of Public Works and Transport dated December 30, 2009, which dismissed the appeal lodged against the resolution of the Directorate General of Civil Aviation imposing a fine of 40,000 euros for committing an administrative offense classified as minor under article 46.1.2 of Law 21/2003, of July 7, on Air Safety, with a fine of 40,000 euros, in accordance with article 55.2 a) of the same Law 21/2003.
SECOND: After the corresponding administrative contentious appeal was processed, the Judgment that is now the subject of the appeal was issued, confirming the resolution.
THIRD: An appeal was lodged against said Judgment, and the parties were given the opportunity to submit their respective challenge briefs, as evidenced in the record. Subsequently, the case was referred to this Chamber of the National Court.
FOURTH: On October 9, 2013, the hearing and judgment of this appeal took place, and it was then set for judgment. The Magistrate Ilmo. Mr. JAVIER BERMUDEZ SANCHEZ has been the rapporteur of this appeal, expressing the opinion of the Chamber.
LEGAL GROUNDS FIRST: This appeal is lodged against the Judgment of Central Administrative Court No. 3 issued on November 17, 2011, in the contentious proceeding before that Court under ordinary procedure number 18/2010. The Judgment devotes part of its reasoning to justify, first, that there is adequate instruction in the administrative record, from the agreement to initiate to the issuance of the sanctioning resolution. It refers to the proven facts of the sanctioning resolution of April 14, 2008: «In accordance with the statements in the previous facts, as well as the instruction carried out, the facts attributed to the company RETTO EXPRES S.L. are proven and accredited when irregularities were detected in the acceptance of goods by the accredited agent and also the shipper of the goods, RETTO EXPRES2 S.L., accepting for air transport, without performing the corresponding acceptance protocols, and sending to the subsequent handling agent, packages containing dangerous goods not declared as such and without indication in the transport or accompanying documents of their dangerous goods status, subject to special regulations for their transport. In the different cases that occurred on dates – August 3, 2006, August 7, 2006, September 13, 2006, September 14, 2006, September 18, 2006, September 19, 2006, September 22, 2006 -, the content declared by RETTO EXPRES S.L. was spare parts for cars, computer equipment, electronic components, documents, textiles, and gift items. However, upon examination by the handling agent GEN-AIR HANDLING S.L., by X-ray, it was found that there were dangerous goods inside.»
Concerning the classification of these proven facts referred to, the Judgment states that in accordance with the cited resolution, the conduct is considered subsumed under article 46.1.2 of Law 21/2003, and RETTO EXPRES S.L. is considered responsible, in accordance with articles 52.1 a) and 32 of the same legal text. The proven facts, as stated in the resolution, constitute a violation of the provisions of article 33.1 of Law 21/2003 regarding general obligations, in accordance with the technical instructions for the safe transport of dangerous goods by air, approved by Royal Decree 1749/1984, of August 1, which establishes in Part I, Chapter I, «scope and field of application» specifically in section 1.2 general conditions of transport. Furthermore, as stated in the aforementioned resolution, the said facts also constitute a breach of the provisions of Part V, Chapter I, regarding the obligations of the shipper and other general requirements applicable to infectious substances, which detail other specific requirements for infectious substances.
The provisions of its Chapter IV on the transport documentation of dangerous goods also apply, so the aforementioned breaches constitute an offense provided for in article 36.1 of the aforementioned Law 21/2003, classified as minor, since on several occasions, the goods subject to air transport have been inspected and it has been found that in these inspections RETTO EXPRES S.L. has committed the same infringing acts. It also appears in the Judgment that the Administration is attributing to the interested party the commission of an offense due to negligence, not directly generating serious risks for public air transport, and the fundamental provision of the cited Air Safety Law that underlies the offense and the imposed sanction is article 46, offense 1 and 2, and also the instructions of Royal Decree 1749/1984, by establishing the general transport conditions, reiterates that no one can accept or deliver dangerous goods for dispatch by air that are not properly classified, documented, certified, described, packaged, marked, labeled, and in suitable conditions for shipment. Likewise, in accordance with the same Regulation, in its Chapter 1, the definition of dangerous goods is established, that is, any article or substance that, when transported by air, may pose a significant risk to health, safety, or property, although, it is stated in the Judgment that finally the Administration has opted for the classification of a minor offense and not for a serious or very serious offense. Therefore, the Judgment concludes, the described conduct is adequately classified.
Secondly, regarding the identification of the responsible party, it appears in the Judgment that the air safety regulations establish the obligation of the shipper to be responsible for these infractions, and in the facts, it is proven that the plaintiff company acted as an accredited agent and also the shipper of the goods. Article 32 of the Air Safety Law establishes the submission of obligations for safety reasons to air navigation service providers, agents, and airport service providers, passengers, and other users of aeronautical services, among other persons and organizations; Article 33 of the same Law establishes that all the persons and organizations listed are subject to the obligation to comply with due diligence, rules, measures, and safety conditions required
by the Air Safety Law, and this obligation is extended to accredited agents, the shipper, and the receiver of the goods, the handling agent, the airline or air operator, the operator of the premises where goods are stored, other service providers and suppliers of equipment, materials, and services, and the competent authorities, and it is stated that the conduct of the interested party is subsumed in articles 52.1 a) and 52.2 of the Air Safety Law. Also, the Judgment indicates that from the documents in the administrative file, it is not demonstrated that RETTO EXPRES S.L. was not the shipper, nor has it been proven that RETTO EXPRES S.L. has been accredited by the Civil Aviation Administration as an operator who acts on behalf of another person, company, or entity as an accredited agent and that the prosecution acts in an accredited agent capacity. On the contrary, it is proven that RETTO EXPRES S.L. was the shipper of the goods, and the case has not been proven as accredited agent acting on behalf of another party. Therefore, it concludes, RETTO EXPRES S.L. is responsible as the shipper, and as the shipper, it has violated its general obligations regarding air safety, according to the technical instructions for the safe transport of dangerous goods by air, approved by Royal Decree 1749/1984 of August 1, in particular, the general conditions of transport, and the obligations of the shipper and other general requirements applicable to infectious substances, as well as the obligations of the shipper and other general requirements applicable to infectious substances and the requirements of its Chapter IV on the transport documentation of dangerous goods. Therefore, the conclusion is reached in the Judgment that RETTO EXPRES S.L. has breached the aforementioned articles 33.1 and 36.1 of the Law on Air Safety and, as a result, the conduct is subsumed under the precepts cited in the resolution sanctioning the plaintiff.
In conclusion, the Judgment argues, there is no reason for the appeal to be successful since the conduct of the plaintiff company has been adequately classified, and there is no evidence that the plaintiff company was not the shipper of the goods and has not committed the infractions imputed to it. Therefore, the appeal should be dismissed.
It is claimed that the appealed Judgment is wrong when considering the conduct classified as a minor offense, and in the fourth legal ground, it argues that it is necessary to first analyze the competence of the body imposing the sanction. It is argued that it is the exclusive competence of the competent bodies of the Autonomous Communities and the Cities of Ceuta and Melilla to exercise the powers of inspection, investigation, and imposition of penalties regarding minor offenses in the field of air safety, as well as the initiation and processing of the corresponding disciplinary procedures, since the fact is that RETTO EXPRES S.L. has not carried out any commercial operation or any other activity related to the regulation of dangerous goods by air in the Autonomous Community of Madrid, but that, on the other hand, the Directorate General of Civil Aviation is not competent to inspect and sanction minor offenses in the field of air safety in Madrid but the competent bodies of the Autonomous Communities and the Cities of Ceuta and Melilla. In this way, the Judgment is claimed to be violated by the Administration by extending its competence beyond its territorial jurisdiction, infringing articles 14 and 149.1.19 of the Spanish Constitution. Likewise, it is alleged that the General Secretariat of Transport and the Directorate General of Civil Aviation are not competent to sanction minor offenses in the field of air safety but are limited to very serious and serious offenses.
It is also alleged that there is a violation of article 24 of the Spanish Constitution and article 105 of the Code of Administrative Procedure, since the procedure is null and void since the Administration has not investigated who has committed the conduct imputed to the plaintiff company, nor has it investigated whether the plaintiff company is the real shipper or the accredited agent, and neither has it investigated whether the conduct imputed to the plaintiff company is actually the responsibility of the shipper or the accredited agent.
In conclusion, it is claimed that the appeal should be upheld since the appealed Judgment is wrong when classifying the conduct as a minor offense, and it is also wrong when considering that the Directorate General of Civil Aviation has competence to sanction minor offenses in the field of air safety, and it is wrong when considering that the Administration has investigated whether the plaintiff company is the real shipper or the accredited agent, and whether the conduct imputed to the plaintiff company is actually the responsibility of the shipper or the accredited agent.