Basic pillars of Spanish stevedoring rules declared null and void

Spain - 23 / 11 / 2021

The Spanish National Appellate Court (Labor Chamber) has held to be null and void as a matter of law the most important provisions in the IV Framework Agreement for Spanish stevedoring, due to violating:

Article 49 of the Treaty on the Functioning of the European Union (TFEU) on the freedom of establishment;
The judgment by the Court of Justice of the European Union (CJEU) on December 11, 2014, which held that the Spanish stevedoring system prevented operators from other EU member states from establishing in Spanish ports, something which, besides being contrary to free competition, amounted to a restriction without legal justification of freedom of establishment;
Royal Decree-Law 8/2017 amending the regime for workers providing port cargo handling services, which was approved to adapt Spanish legislation to the deregulation prescribed by that CJEU judgment; and
Royal Decree-Law 9/2019 amending Law 14/1994 on temporary employment agencies, which, like the law mentioned above, was also approved to adapt Spanish legislation to conform to that CJEU judgment.

Briefly, the national appellate court judgment, delivered on May 31, 2021 and published in the Official State Gazette on July 19, 2021, determines that the mandatory subrogation in respect of the workers of Sociedad Anónima de Gestión de Estibadores Portuarios (SAGEP) as set out recently in the IV Framework Agreement falls outside the scope of collective bargaining and is null and void as a matter of law and unconstitutional, insofar as it is contrary to both the freedom of contract and the principle of equality.

The judgment also held to be null and void as a matter of law the following basic pillars of the stevedoring rules:

In our view, like the CJEU judgment in 2014, the national appellate court’s judgment may also be described as historic, because it has stated clearly that the basic pillars of the Spanish stevedoring rules which have been in force over the past 30 years are null and void as a matter of law.

Although that judgment is not final or definitive, since it has been appealed to the Supreme Court, we consider that both the Spanish legislation on stevedoring and the existing collective or other agreements on this subject will have to be adapted to the necessary extent to conform to the judgment’s determinations. In fact, the existing agreement in principle on the V Framework Agreement should be transformed into a V Master Agreement that has been brought completely into line with that judgment.

Article 49 of the Treaty on the Functioning of the European Union (TFEU) on the freedom of establishment;
The judgment by the Court of Justice of the European Union (CJEU) on December 11, 2014, which held that the Spanish stevedoring system prevented operators from other EU member states from establishing in Spanish ports, something which, besides being contrary to free competition, amounted to a restriction without legal justification of freedom of establishment;
Royal Decree-Law 8/2017 amending the regime for workers providing port cargo handling services, which was approved to adapt Spanish legislation to the deregulation prescribed by that CJEU judgment; and
Royal Decree-Law 9/2019 amending Law 14/1994 on temporary employment agencies, which, like the law mentioned above, was also approved to adapt Spanish legislation to conform to that CJEU judgment.
The classic pools system at ports due to regarding it as a monopoly on labor;
The rotation model for stevedore workers due to being contrary to companies’ freedom of contract; and
The system for assigning and training stevedore workers due to regarding it as monopolistic and openly anticompetitive.