The Transport Finance Law Review: Spain
i The transport finance industry
It is important to consider that the climate for transport asset financing in Spain does not significantly diverge from that of general financing. Undoubtedly, the covid-19 pandemic and the measures taken to bring it under control have affected the Spanish economy.
In this context, market-standard clauses in loan transactions are being revisited, such as those on force majeure, mandatory prepayments and financial covenants. Also of note is the increasing regulatory pressure (Basel III, etc.) and the concentration of the domestic financial sector (including the restructuring of the savings banks).
Spain's ship finance industry is largely driven by shipbuilding, a sector that was considerably affected by the global credit crunch, resulting in fewer and more complex transactions. We have seen Spanish banks financing (traditionally foreign) shipowners building in Spanish yards, and increasingly resorting to export credit tools.
Fortunately, Spanish banks' traditional approach to ship finance has, for the time being, not varied during the covid-19 outbreak. It is still based on a combination of project and corporate finance. Lenders typically seek out a stable long-term charter to back the financing, but invariably scrutinise the shipowner's balance sheet.
Another angle has been the granting of pre-delivery financing to Spanish yards to assist them in completing the construction of vessels, or in the issuance of refund guarantees.
In view of this scenario, we cannot disregard the fact that the Spanish ship finance market is (and has been) shaped by the Spanish tax lease framework. The EU challenge negatively impacted domestic ship finance between 2011 and early 2015. The recuperation of the Spanish economy and approval of a new tax lease framework at both domestic and EU levels have revitalised the market.
According to recent official statistics from Aena, SA (the Spanish airports operator), 276.23 million passengers travelled through Spanish airports in 2019. These numbers, logically, decreased in 2020 due to the health situation, specifically to 76,064,322 passengers. For their part, Spanish airlines were not an exception and are facing a situation of financial stress.
Turning to financing tools, the domestic market (like the international) is driven by financial tax structures, particularly operating leases. The entry into force of the 'Cape Town system' in Spain created a new framework for secured financings within the aviation market. Since the covid-19 outbreak, public support has also increased, creating more complex financing structures.
Spain is undertaking a comprehensive modernisation of the railway system, including the construction of a new high-speed network. Following the entry into force of the different European packages, the Spanish rail sector has been slowly opening up to competition. To date, in addition to freight transport, international transport of passengers and transport primarily for tourism purposes have been liberalised.
Although the passenger market continues to be controlled by Renfe Operadora, several other operators will start operating in this market, which was opened up to competition with the new working timetable starting on 14 December 2020.
The trend among Spanish manufacturers has been to export rolling stock abroad with export finance support.
ii Recent changes
Spain's ship finance industry will unquestionably benefit from the approval of the new tax lease framework based on the European Commission's decision of 20 November 2012, and from Royal Decree 874/2017 regulating interest rate subsidies for credits for vessel constructions.
Two significant recent events are notable in the aviation sector – the partial privatisation of Aena, SA in which the government still holds its majority stake, and the approval of Royal Decree 1036/2017 regulating the civil use of remotely piloted aircraft (RPA).
The Spanish Rail Sector Act 38/2015 was modified by Royal Decree-Law 23/2018 of 21 December, which transposed Directive (EU) 2016/2370 into the Spanish legal system. Royal Decree-Law 23/2018 opened up the public railway transport sector to competition as of 1 January 2019, so that any railway company can request capacity for the working timetable starting on 14 December 2020.
The Royal Decree-Law also modifies the price regime for basic services, supplementary services and ancillary services.
According to the new wording of Article 101 of the Rail Sector Act, prices for basic services cannot exceed the cost of providing the service plus a reasonable profit. Supplementary services and ancillary services are subject to prices agreed between private parties. However, when those services are provided by a sole operator, the prices cannot exceed the cost of providing the service plus a reasonable profit.
The public health crisis caused by covid-19 created an unprecedented situation that posed innumerable legal challenges. Spain reacted immediately by declaring a state of emergency that locked down the economy. In parallel, a broad range of extraordinary measures were passed to support the sectors directly impacted by the health crisis.
Of note is a government-backed guarantee scheme that (for the time being) will be available until 1 June 2021. It allows financial institutions that are granting financing to companies and self-employed workers to benefit from guarantees granted by the Ministry of Economic Affairs and Digital Transformation through the Instituto de Crédito Oficial (ICO). This aid does not involve direct financing from the state or the ICO, as the financial institutions themselves are ultimately responsible for deciding whether to grant the financing. In any case, the ICO's approval of the use of the guarantee line is required when expressly established.
The capacity of the Spanish Export Credit Agency to afford insurance coverage backed by the Internationalisation Risks Reserve Fund was increased exceptionally for six months for working capital loans. Unlike under the 'ordinary' rules, there did not have to be a connection with one or more export contracts provided the loans addressed new financial needs and not situations predating the pandemic. This coverage was available to small and medium-sized companies and, subject to certain conditions, larger companies.
Other regulations to support specific sectors were also enacted. For the seaport sector, a full package was approved that sought to achieve savings of approximately €100 million. For example, port authorities were authorised to reduce public port fees for 2020 and postpone their payment.
i Domestic and international law and regulation
There are several notable provisions to take into account when financing the construction or acquisition of transport equipment. First, in the absence of an agreement or a specific act, the manufacture of transport equipment is regulated by the Spanish Civil Code, while the acquisition of transport equipment is regulated by the Commercial Code and, subsidiarily, by Civil Code.
Apart from this general rule, the following provisions specifically regulating each type of transport equipment should be considered when financing such equipment.
The Maritime Navigation Act regulates the main aspects of shipbuilding contracts and sale and purchase agreements. Although the provisions are not mandatory, the shipbuilder cannot be exonerated from liability in the event of wilful misconduct or gross negligence.
Spain has a dual registration system for ships, vessels and naval artefacts: the Ship Registry and the Chattel Registry. The Ship Registry is the administrative registry for registering vessels that fly the Spanish flag. Vessels flying the Spanish flag are bound by Spanish tax, employment, documentation and safety regulations. There is also a second administrative ship registry named the Special Registry of Ships and Shipping Companies located in the Canary Islands (REBECA).
The Chattel Registry is a private registry that contains information in its ships section regarding the ownership and encumbrance of ships, vessels and naval artefacts to provide legal certainty in related matters. Third parties have standing to challenge information registered in the Chattel Registry.
All ships, vessels and naval artefacts, including those under construction, may be subject to a ship mortgage pursuant to the provisions of the Maritime Navigation Act and the International Convention on Maritime Liens and Mortgages signed in Geneva on 6 May 1993. The ship mortgage must be registered with the Chattel Registry to be valid and enforceable, and to have third-party effects.
When financing the construction of a vessel in Spain, the Spanish tax lease system (STLS) for the financing of assets, which in particular affects the financing of vessels, should be taken into consideration.
The STLS is based on the tax depreciation of leased assets and was approved by the EU in the European Commission decision dated 20 November 2012 in case SA 34736 (2012/N). The STLS's general contractual structure is as follows: a builder and a leasing entity (the lease company) enter into a shipbuilding contract for the construction of a vessel, as negotiated in commercial terms between a shipowner and the builder. The lease company and an economic interest group (EIG) enter into a finance lease agreement with a purchase option. In turn, the EIG and the shipowner enter into a bareboat charter agreement permitting the use of the vessel by the latter after delivery. At a subsequent stage, the shipowner buys the vessel from the EIG and becomes its owner. In addition, Royal Decree 874/2017 regulates interest rate subsidies for credits for vessel construction.
Spain has not passed any act specifically regulating the construction, acquisition or financing of aircraft.
After the amendments introduced by Royal Decree 384/2015 of 22 May, aircraft operated by Spanish operators must be registered with the Aircraft Matriculation Registry and the Chattel Registry. Registration of an aircraft with the Aircraft Matriculation Registry confers Spanish nationality as well as the applicable tax and safety provisions, while the Chattel Registry records ownership and encumbrances affecting the aircraft and has third-party effects.
Apart from the above, Spain has ratified the Convention on International Interests in Mobile Equipment and the Protocol to the Convention on International Interests in Mobile Equipment on Matters Specific to Aircraft Equipment, signed in Cape Town on 16 November 2001.
The result is that Spain has a triple registration system, with aircraft also potentially being registered with the International Registry set up by the Cape Town Protocol to Aircraft Equipment. International interests created pursuant to the Cape Town Protocol are enforceable in Spain.
Among its declarations to the Cape Town Protocol to Aircraft Equipment, Spain designated the Chattel Registry as the entry point to the International Registry.
That Spanish entry point has been set up as an authorising entry point (i.e., the Chattel Registry only authorises the transfer of mandatory information to the International Registry for the registration of an international interest by issuing a code). After obtaining that code, the parties are entitled to register and, therefore, claim an international interest in the International Registry by providing the required information electronically.
Furthermore, the creditor secured by an international interest is not entitled to take self-remedy actions unless it holds an irrevocable de-registration and export request authorisation (IDERA). According to the Spanish Declaration to the Cape Town Protocol to Aircraft Equipment, the holder of an IDERA is authorised to request deregistration and export of an aircraft without obtaining judicial authorisation.
Although the Chattel Mortgages and Non-dispossessory Pledges Act of 16 December 1954 regulates chattel mortgages over an aircraft, in practice they will no longer be used in Spain in the near future as international interests take priority over any national interest created after 1 March 2016.
The main rules governing the management and legal status of RPAs (formerly governed by Act 18/2014 of 15 October) were updated by Royal Decree 1036/2017.
Spain has not enacted any provision that specifically regulates the financing, construction or acquisition of rolling stock. As with shipping transport equipment, rolling stock must be registered with the Special Railway Registry, an administrative registry. Registration of rolling stock with the Chattel Registry is optional.
Regarding interests, chattel mortgages can be created over private wagons and over public and private locomotives, as established by the Chattel Mortgages and Non-dispossessory Pledges Act.
Spain is not expected to ratify the Luxembourg Protocol to the Convention on International Interests in Mobile Equipment on Matters Specific to Railway Rolling Stock signed on 23 February 2007.
i Regulatory capital and liquidity
The provisions of Basel III were implemented into the legal framework of the European Union, mainly through:
- Directive 2013/36/EU of the European Parliament and of the Council of 26 June 2013 on access to the activity of credit institutions and the prudential supervision of credit institutions and investment firms, amending Directive 2002/87/EC and repealing Directives 2006/48/EC and 2006/49/EC (CRD IV); and
- Regulation (EU) No. 575/2013 of the European Parliament and of the Council of 26 June 2013 on prudential requirements for credit institutions and investment firms and amending Regulation (EU) No. 648/2012 (CRR).
CRD IV has been implemented into Spanish law through:
- Law 10/2014 of 26 June on the organisation, supervision and solvency of credit institutions;
- Royal Decree 84/2015 of 13 February, which implements Law 10/2014 of 26 June on the organisation, supervision and solvency of credit institutions; and
- Circular 2/2016 of 26 February, of the Bank of Spain, to credit institutions, on supervision and solvency, completing the adaptation of Spanish domestic law to Directive 2013/36/EU and Regulation (EU) No. 575/2013.
The above legal framework imposes requirements on credit institutions in the following areas, among others:
- own funds and capital buffers;
- measure and management of risks;
- large exposures;
- liquidity and
In November 2016, the European Commission published a proposal to both CRD IV and CRR (CRD V and CRR II). The key elements of the proposal relate to the leverage ratio, the net stable funding ratio, the total loss-absorbing capacity, the Basel Committee's work on capital requirements of institutions that trade in securities and derivatives and other amendments intended to make the existing rules more proportionate, and to ensure small and non-complex institutions' compliance with them. Although it was expected that the European Council and the Parliament would have concluded these new reforms by the end of 2018, the proposed amendments are still being discussed.
On 20 May 2019 the European Parliament adopted what is commonly known as the CRD V package:
- Directive 2019/878/EU of the European Parliament and of the Council of 20 May 2019 amending Directive 2013/36/EU of 26 June 2013;
- Regulation (EU) 2019/876 of the European Parliament and of the Council of 29 May 2019 amending Regulation 575/2013, and Regulation (EU) 648/2012 of 26 June 2013 on prudential requirements for credit institutions and investment firms; and
- Regulation 876/2019 amending Regulation 575/2013 of 26 June 2013 (CRR II).
The reform aims to advance the implementation of the Basel III framework, which was completed at the end of 2017, and to adapt the European resolution regime, in particular the minimum requirement eligible liabilities to the international total loss absorbing capacity standard developed by the Financial Stability Board. It is therefore an ambitious reform and had a broad and staggered timetable for its implementation into Spanish law, which ended on 28 December 2020.
On 3 February 2021, the Bank of Spain published a draft circular for public consultation. This circular will amend Circular 2/2016 of 2 February on supervision and solvency of credit institutions for the purposes of, among other things, establishing a new regulation of the countercyclical capital buffer that is consistent with the new wording of Article 45.1 of Law 10/2014, which allows the Bank of Spain to require the buffer for all of an institution's or group's exposures and, additionally or alternatively, for exposures to a certain sector or industry.
ii Supervisory regime
Since the establishment of the Single Supervisory Mechanism in 2014, the supervision of credit entities in Spain is shared between the European Central Bank (ECB) and the Bank of Spain under the terms set out under Council Regulation (EU) No. 1024/2013 of 15 October 2013 conferring specific tasks on the European Central Bank concerning policies relating to the prudential supervision of credit institutions (SSM Regulation). According to the SSM Regulation, the ECB has exclusive competence to carry out certain tasks for prudential supervisory purposes. For instance, it is responsible for granting and withdrawing authorisations for the establishment of credit institutions in the eurozone, assessing notifications for the acquisition and disposal of qualifying holdings, performing stress tests, supervising on a consolidated basis and ensuring banks' compliance with EU prudential requirements, such as own-funds requirements, liquidity, leverage or corporate governance.
However, for the sake of efficiency, supervisory tasks and responsibilities are allocated to the ECB and the Bank of Spain depending on the bank's significance in accordance with the SSM Regulation and Regulation (EU) No. 468/2014 of the European Central Bank of 16 April 2014 establishing the framework for cooperation within the Single Supervisory Mechanism between the European Central Bank and national competent authorities and with national designated authorities. The conditions for a bank to be considered as significant are established in the SSM Regulation and such conditions are published by the ECB and the Bank of Spain.
Security and enforcement
Access to financing in the maritime, aircraft and railway sectors is a key factor for success in the current commercial context. The indebtedness that companies operating in those sectors must assume for the construction, financing and acquisition of vessels, aircraft and rolling stock depends on the companies' capacity to provide sufficient and adequate security to the financing entities. The security package is therefore essential in asset finance. In Spain, a mortgage over the financed asset is normally granted as security to the lenders and has an important economic function and an essential role in new building projects. The entry into force of the Maritime Navigation Act, representing a significant modernisation of Spain's former maritime regulation, establishes the legal framework governing ship mortgages. Mortgages over aircraft and rolling stock are also subject to specific regulations. Moreover, as previously mentioned, Spain is a party to various international conventions that apply to these types of guarantees, including the International Convention on Maritime Liens and Mortgages (1993) and the Cape Town Convention on international interests in mobile equipment.
i Financing of contracts
The ship mortgage is the basic security normally granted within the scope of shipbuilding projects, but not the exclusive form, as ancillary security such as refund guarantees and pledges are also commonly used. The legal framework governing ship mortgages is primarily contained in Articles 126 to 144 of the Maritime Navigation Act, substituting Spain's previous framework on these types of security, and in the International Convention on Maritime Liens and Mortgages (1993).
There are two requirements under the Maritime Navigation Act for a ship mortgage to be validly created as a right in rem with effects against third parties: it must be documented in writing in either a private or public document; and and it must be registered within the Chattel Registry. To create and register the mortgage over a vessel under construction, a third of the budgeted amount of the total hull value must have been invested and the ownership of the vessel registered with the Chattel Registry. The parties to the ship mortgage are the mortgagee (normally a bank financing the construction of the vessel) and the mortgagor (which can be the debtor under the financing contracts or another party, as the mortgage can be granted as security of third-party obligations).
In respect of the asset, the mortgage extends to both the vessel's component parts and fittings, but not accessories. The mortgage also covers licences linked to the vessel (such as fishing licences), and compensation arising from insurance and from material damage to the vessel owing to collision or other accidents. In respect of the secured obligations, unless otherwise agreed, a mortgage granted as security of a credit that accrues interest will not exceed (to the detriment of a third party) the interest of the previous two years elapsed and the matured part of the current annual dues, in addition to the principal.
If a definitive change of the vessel's flag is intended, it may not be carried out unless all mortgages, charges and encumbrances have been cancelled or the written consent of the beneficiaries of the mortgages, charges or encumbrances has been granted. Temporary changes of flag will not affect the regulation applicable to the mortgage, which shall continue to be the act applicable under the flag flown by the vessel at the time the mortgage was granted.
Aircraft finance can also be secured by granting a mortgage over the asset. The legal framework applicable to this kind of mortgage is primarily established in the Air Navigation Act and in the Chattel Mortgages and Non-dispossessory Pledges Act. The mortgage must be registered with the Chattel Registry for its valid creation and the security must also be registered with the Aircraft Matriculation Registry. To be able to create and register the mortgage over an aircraft during its construction, a third of its budgeted amount must have been invested in the same. The aircraft must be identified in the mortgage deed by including, among other details, the following information:
- registration number given to the aircraft by the Aircraft Matriculation Registry;
- stage of construction (if the aircraft remains under construction);
- domicile of the aircraft; and
- insurance policies covering the aircraft.
The mortgage extends to the airframes, engines, radio and navigation devices and accessories. The mortgage can also extend to spare parts, provided they are listed in the mortgage deed.
Spain adhered to the Cape Town Convention in 2013, although it was not until 15 December 2015 that Spain adhered to the Aircraft Protocol, which entered into force in Spain on 1 March 2016. The Cape Town Convention contains the general framework applicable not only to securities over airframes, engines and helicopters, but also to other mobile equipment such as railway rolling stock and space assets (specific protocols are established for each type of mobile equipment). The Aircraft Protocol completes the Convention with specific terms and provisions regarding international interests in mobile equipment on matters specific to aircraft equipment. Thus, security can also be granted in the form of international interest over airframes, engines and helicopters, in accordance with the requirements under Article 7 of the Convention. The Convention also created an International Registry (Article 16) for the registration of, among other things, international interests, prospective international interests, assignments and prospective assignments of international interests and acquisitions of international interests.
Furthermore, the Directorate General for Registry and Notary Offices of the Ministry of Justice issued a resolution on 29 February 2016 with the aim of approving specific forms to facilitate access to the International Registry by means of the Spanish entry point, the Chattel Registry. Spain also submitted declarations to the Convention. These declarations were made pursuant to Article 39 (rights having priority without registration), Article 40 (registrable non-consensual rights or interests) and Article 53 (determination of courts).
If a wagon or locomotive is privately owned, a chattel mortgage can be granted as security in accordance with Article 12.2 of the Chattel Mortgages and Non-dispossessory Pledges Act. Chattel mortgages cannot be granted over wagons owned by the state. However, a pledge without displacement or non-possessory pledge over wagons, or a chattel mortgage over locomotives, may be granted instead.
Article 140 of the Maritime Navigation Act lists specific events that will entitle the mortgagee to enforce its right against the vessel with a subsequent judicial sale of the same (see Section IV.iii). Those events are:
- expiry of the term agreed to return the principal or interest;
- the debtor's declaration of insolvency;
- deterioration of the mortgaged vessel rendering it definitively unseaworthy;
- the existence of two or more vessels mortgaged to fulfil the same obligation and where a loss or deterioration arises that renders either of them definitively unseaworthy; and
- the occurrence of any of the agreed termination events.
Upon the occurrence of any of the above events, the mortgagee has various alternatives to enforce the mortgage, basically consisting of:
- ordinary declarative proceedings;
- general rules for enforcement proceedings;
- special enforcement proceedings on mortgaged assets; and
- non-judicial enforcement proceedings before a notary public.
The action to enforce a ship mortgage has a limitation period of three years, which runs from the date on which any of the above events occur.
The enforcement of a mortgage over aircraft or rolling stock is not subject to specific regulations under Spanish law. Thus, the general rules for enforcement in the Civil Procedure Act apply.
If the mortgagee initiates the special enforcement proceedings on mortgaged assets (Articles 681 to 698 of the Civil Procedure Act), the claim for the due amounts secured with the mortgage can be exercised directly against the mortgaged asset itself. There are various formal requirements that must be fulfilled to initiate the proceedings, which essentially consist of the following: the price of the mortgaged asset must be indicated in the mortgage deed so that it can be used as a reservation price in the auction of the asset; and the debtor's domicile must be indicated in the mortgage deed (for notification and communication purposes).
iii Arrest and judicial sale
Conservatory arrest of both domestic and foreign vessels is governed by the International Convention on the Arrest of Ships made in Geneva on 12 March 1999, Articles 470 to 479 of the Maritime Navigation Act and the Spanish Civil Procedure Act. The provisional court measure causes the detention and immobilisation of the vessel. The court with jurisdiction regarding subject matter to hear the main claim on the merits, or the court with territorial jurisdiction corresponding to the port or place where the vessel is located (or expected to arrive), will order the vessel's arrest. The arrest cannot be effected to ensure the enforcement of a previous judgment or arbitration award: arrest is a provisional ancillary measure for the main claim.
The arrest is conditional on the fulfilment of the following requirements: alleging the existence of a maritime claim and its cause; the vessel to be arrested is eligible for arrest under Article 3 of the Convention; and the claimant must provide security to cover any loss that may be incurred by the defendant as a result of the arrest, and for which the claimant may be found liable. Pursuant to Article 472.2 of the Maritime Navigation Act, the amount of the security must be at least 15 per cent of the amount of the maritime credit alleged.
Once the arrest has been ordered, the court will notify the harbour master of the port where the vessel is located (or expected to arrive) and will take the necessary measures to arrest and prohibit the vessel's departure. The arrest must also be notified to the vessel's master or shipping agent.
The judicial sale of a vessel is governed by the International Convention on Maritime Liens and Mortgages, made in Geneva on 6 May 1993 (1993 Geneva Convention), Articles 480 to 486 of the Maritime Navigation Act and, for matters not expressly addressed by those acts, by the Civil Procedure Act. Prior to the forced sale of the vessel, the court must give notification of the sale of the vessel at least 30 days prior to the date on which the forced sale is intended. The notification must be directed to:
- the registrar of the Chattel Registry and, if relevant, to the authority in charge of the registration of the vessel under a temporary change of flag;
- the owner of the vessel; and
- the mortgagees and holders of other encumbrances, including those established in Article 4 of the 1993 Geneva Convention (provided that the court has received notification of the corresponding credits).
The court's notification must state the date and place the forced sale is to be carried out or, if it cannot be stated with certainty, the approximate date and place. The proceeds from the forced sale must first be used to pay the procedural costs and expenses arising from the arrest, or the enforcement and subsequent sale of the vessel (e.g., expenses arising from the upkeep of the vessel and the crew as well as wages, other sums and costs referred to in Article 4, Paragraph 1(a) of the 1993 Geneva Convention, incurred from the time of arrest or seizure). The remaining amount will then be distributed according to the terms and provisions of the 1993 Geneva Convention.
Aircraft are also subject to arrest, which is governed by the Civil Procedure Act. However, there are specific particularities under Spanish law and international conventions ratified by Spain that render the cautionary measure of arrest unattractive in practice. Article 132 of the Air Navigation Act establishes that the arrest of aircraft owned by air traffic companies may not interrupt the public service for which they are operating. The same rule is established under the Convention for the Unification of Certain Rules Relating to the Precautionary Arrest of Aircraft, adopted in Rome on 29 May 1933.
The main legislative development in the aviation sector was the entry into force in Spain of the Aircraft Protocol to the Cape Town Convention on 1 March 2016. Spain still faces the challenge of amending domestic legislation to ensure the international interest enforcement.
Turning to the shipping financing industry, the fact that the new Spanish tax lease framework was upheld by the judgment of the General Court of the European Union, together with the approval of Royal Decree 874/2017, provides an optimistic view of the future.
In the railway sector, Spain has transposed the market pillar of the Fourth Railway Package, commencing with the approval of Royal Decree-Law 23/2018. As a result, passenger railway transport has been open to competition since 1 January 2019, meaning that any railway company can request capacity in the working timetable starting on 14 December 2020.
Finally, shipping, air and ground transport financing is to be one of the main players and beneficiaries of the temporary recovery instrument NextGenerationEU. In 2021, it will therefore be key to monitor the measures taken by the government to implement these aids.
1 Carlos López-Quiroga is a partner at Uría Menéndez. The author thanks his colleagues Isabel Aguilar, Luz Martínez de Azcoitia, Sofía Rodríguez, José Sánchez-Fayos, Nicolás Nägele and Ibai Puente, who also contributed to this chapter.