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Roj: STSJ MAD 3436/2010 Id Cendoj: 28079330062010100343 Organ: Superior Court of Justice. Contentious-Administrative Chamber Location: Madrid Section: 6 Recourse Number: 156/2007 Resolution Number: 10195/2010 Procedure: ORDINARY PROCEEDINGS Speaker: RICARDO SANCHEZ SANCHEZ Type of Resolution: Judgment T.S.J. MADRID CON/AD SEC.6 MADRID JUDGMENT: 10195/2010 Recourse: 156/207 Speaker: Mr. Ricardo Sánchez Sánchez JUDGMENT No. 10195 SUPERIOR COURT OF JUSTICE CONTENTIOUS-ADMINISTRATIVE CHAMBER OBJECTIVES SUPPORT PROGRAM FOR THE SIXTH SECTION (E) President Hon. Mr. D. Francisco Gerardo Martínez Tristán Magistrates Hon. Mrs. Dª. Carmen Álvarez Theurer Hon. Mr. D. Ricardo Sánchez Sánchez ——————————————– In the city of Madrid, on February twenty-fifth, two thousand ten.
SEEN, by the Chamber, constituted by the Hon. Mrs. and the Hon. Mr. Magistrates related on the margin, the records of contentious-administrative recourse No. 156/2007, filed by Mr. Manuel Sánchez-Puelles y González-Carvajal, Procurator of the Courts, on behalf and representation of TARMAC IBERIA, S.A. Unipersonal, (formerly Steetley Iberia, S.A.U.), against the resolution of November 30, 2006, of the General Secretariat of Transportation of the Ministry of Development, which dismisses the appeal lodged against the resolution of the General Directorate of Road Transportation dated March 10, 2006, which sanctions the appellant with a fine of 2,001 euros for the commission of a very serious offense consisting of unloading dangerous goods without the mandatory Safety Advisor.
The Administration was a party to the proceedings, defended and represented by the State Attorney.
LEGAL BACKGROUND FIRST.- After the appeal was filed, the plaintiff was summoned to formalize the lawsuit, and said writ was submitted requesting that a judgment be issued annulling the contested resolution and the sanction imposed on the appellant.
SECOND.- The State Attorney replied to the lawsuit and requested that a judgment be issued rejecting the present appeal or, subsidiarily, dismissing it.
THIRD.- Having received no evidence, and after the parties presented their conclusions, the proceedings were pending scheduling.
FOURTH.- The hearing for the voting and ruling of this case was scheduled for February 24, 2010, and took place accordingly.
FIFTH.- The legal requirements have been observed in the processing of this proceeding.
HAVING CONSIDERED the legal provisions cited by the parties, as well as those consistent and of general and relevant application.
Being the Hon. Mr. D. Ricardo Sánchez Sánchez the Speaker of the Section.
LEGAL GROUNDS FIRST.- It is worth noting, from the administrative record and the documentation submitted to the process, the following background: 1) According to the Delivery and Circulation Note – Waybill, dated 09/06/2005, issued by the company LOG. HIDROCARBUROS CLH. S.A., the company TRANSMOL LOGISTICA unloaded 30,002 liters of diesel (UN No. 1202; Class 3, FI), an inspection report being drawn up on this matter. 2) The company, when unloading dangerous goods, lacked a Safety Advisor. 3) On December 27, 2005, the initiation of the sanctioning procedure was notified. 4) The respondent, on January 13, 2006, submitted a defense brief, requesting the corresponding report from the Inspector on January 26, 2006, and responding to it on January 27, 2006. 5) Consulting the General Registry of Offenders, as provided for in article 146.2 of Law 16/1987, of July 30, on the Regulation of Land Transport, there were no unfavorable records against the reported company in the 12 months prior to the commission of the aforementioned act. 6) By resolution of the General Directorate of Road Transportation, dated March 10, 2006, the aforementioned company was fined 2,001.00 euros for the commission of a very serious offense – unloading dangerous goods without the mandatory Safety Advisor -, an offense classified in article 140.25.21 of Law 16/1987, of July 30, on the Regulation of Land Transport, as amended by Law 29/2003, of October 8 (File IC/1911/2005). 7) An appeal was filed against which was dismissed by resolution of November 30, 2006, of the General Secretariat of Transportation of the Ministry of Development.
SECOND.- The State Attorney argues that there is inadmissibility due to the application of article 45.2 d) of the Law on Contentious-Administrative Jurisdiction The aforementioned article determines, among the documents that must be submitted together with the appeal writ, «the document or documents proving compliance with the requirements for initiating actions by legal entities in accordance with the rules or statutes applicable to them, unless they have been incorporated or included in the relevant part within the body of the document mentioned in paragraph a) of this same section.» However, the Third Chamber of the Supreme Court has stated, for example, in a judgment of the third section, dated 7/8/2005, rec. 3132/2002. Pte: Campos Sánchez-Bordona, Manuel: «Article 57.2.d) of the Jurisdictional Law of 1956 required that the appeal writ be accompanied «by the document proving compliance with the formalities required to file lawsuits by Corporations or Institutions according to their respective laws». Its corresponding article 45.2.d) of the current Law 29/1998 extended this duty to the rest of «legal entities, in accordance with the rules or statutes applicable to them». However, the current requirement for private legal entities -including the plaintiff association- did not arise under the Jurisdictional Law of 1956 with the same profiles, as a reiterated and not always uniform jurisprudence had highlighted. In previous rulings on the requirement under review contained in the previous law, part of the jurisprudence -echoed by the judgment of this Chamber of June 24, 2003 – had even admitted «(…) with respect to private legal entities that the granting of power for the exercise of actions in favor of the procurator, as long as reference is made to the statutory competence of the grantor or at least there is no evidence of the incompetence of the body appearing to grant said power or the requirement of special requirements in the statutes for the exercise of actions, may determine that there is sufficient justification for procedural capacity.» Here, it is stated in the power of attorney that reference is made to the statutes and the fact that there is a single shareholder makes it obvious
that it is not necessary to submit to the proceedings the documents that the State Attorney mentioned. Therefore, the alleged inadmissibility claimed by him does not exist.
THIRD.- The plaintiff argues that TARMAC IBERIA, S.A.U. is not a gas station, but a company exclusively dedicated to the manufacture and sale of aggregates and concrete. It is also stated in the lawsuit that the contested resolution violates the principle of typicity of article 129.1 of Law 30/92, because the sanctioned company cannot be included in the legal definition of those required to have a safety advisor, as set forth in article 1 of RD 1566/1999, since it does not transport dangerous goods or is responsible for their loading and unloading. However, this allegation must be dismissed, considering that both companies performing transportation and those performing loading and unloading of dangerous goods are responsible, since fuel transportation is a full load transportation, as stipulated for such services in article 22.2 of Law 16/1987, of July 30, on the Regulation of Land Transport, as amended by Law 29/2003, of October 8, stating that «in road freight transport services with full load, loading operations of goods on board vehicles, as well as their unloading, shall be carried out by, respectively, the shipper or sender and the consignee, unless otherwise agreed before the effective presentation of the vehicle for loading or unloading. The same regime shall apply with respect to the stowage and destowage of goods.» In the absence of a contrary agreement in the file, that the unloading of the goods is the responsibility of the shipper or carrier thereof is not stated. Likewise, the A.D.R., in point 1.4.2.3 Recipient, also outlines its responsibilities in unloading, even if it does not perform them physically. Article 1 of RD 1566/1999, cited by the appellant, provides that «companies transporting dangerous goods by road, by rail, or by waterway, or that are responsible for loading or unloading operations related to such transportation, must designate, in accordance with the provisions of this Royal Decree according to the mode of transportation and the transported goods, at least one safety advisor responsible for contributing to the prevention of risks to people, property, or the environment inherent in such activities.» Moreover, article 23, third paragraph of Royal Decree 2115/1998, of October 2, on the transport of dangerous goods by road, states that «in any case, the shipper-receiver shall be responsible for complying with all the obligations established in this Royal Decree and in the ADR regarding the loading and unloading of the vehicle and the necessary operations to carry them out, with the sole exception of home delivery to individuals of fuels for domestic use, for which, unless otherwise provided, the carrier shall be responsible.» From which it follows that, even if the appellant is an end consumer, it is subject to the obligation to designate said Advisor, considering that the only exception contemplated is, as stated, home delivery to individuals».
FOURTH.- As stated by the State Attorney, the committed offense, namely, unloading dangerous goods without the mandatory Safety Advisor required by article 1 of RD 1566/1999, of October 8, on Safety Advisors for the transportation of dangerous goods by road, by rail, or by waterway, and by Section 3 Chapter 1.8 of the European Agreement concerning the International Carriage of Dangerous Goods by Road, concluded in Geneva on September 30, 1957, is expressly classified as very serious in article 140.25.21 of Law 16/1987, of July 30, on the Regulation of Land Transport, as amended by Law 29/2003, of October 8.
Article 140.25.21 of the Law establishes as a serious offense «transporting, loading, or unloading dangerous goods without the companies involved having the mandatory safety advisor or, even if they have it, that this advisor is not qualified for the subject matter or activity concerned». Thus, the performance of this type of activity by any company requires the designation of a Safety Advisor, whether it be the company transporting, loading, or unloading. Therefore, the appellant is responsible for such offense. From all this, it is inferred that a typical unlawful and culpable conduct constituting an administrative offense consisting of non-compliance with the security duties required by the law, which the General Directorate of Road Transportation punished by imposing the sanction of 2,001 euros, which is the minimum to be imposed (from 2,001 to 3,300), according to article 143.1.g, for the offenses provided for in paragraphs 24, 25, and 26 of article 140.
The contested resolution is, therefore, legally sound.
FIFTH.- Pursuant to the provisions of article 139.1 of the Contentious Administrative Jurisdiction Law, there is no need to make a special order for the payment of the costs of this proceeding.
WE RULE That we MUST DISMISS AND DISMISS the contentious-administrative recourse No. 156/2007, filed by Mr. Manuel Sánchez-Puelles y González-Carvajal, Procurator of the Courts, on behalf and representation of TARMAC IBERIA, S.A. Unipersonal, (formerly Steetley Iberia, S.A.U.), against the resolution of November 30, 2006, of the General Secretariat of Transportation of the Ministry of Development, which dismisses the appeal lodged against the resolution of the General Directorate of Road Transportation dated March 10, 2006, which sanctions the appellant with a fine of 2,001 euros for the commission of a very serious offense consisting of unloading dangerous goods without the mandatory Safety Advisor. No costs.
This ruling, due to the amount of the proceeding, is final.
Thus, by this our judgment, we pronounce it, order it, and sign it.
PUBLICATION.- On the same day of the date, the foregoing judgment was read and published by the Hon. Mr. Speaker, being in a public hearing, of which I, the Secretary, certify.