On the alleged and imminent mandatory use of the electronic CMR in Spain

Victor Mata (Partner) Penningtons Manches Cooper, Madrid 1 november 2023

Maria Vidal (Senior Associate). Penningtons Manches Cooper, Madrid

At the time of writing this article (September 2023) there are voices in Spain suggesting that the electronic CMR (hereinafter referred to as “e-CMR") will be mandatory in Spain. The issue triggering that surge is a specific text contained in a draft law that is expected to be passed soon, which will make mandatory the digital use of a certain administrative document that has certain similarities with the consignment note.

As a starting point, two issues need to be clarified. Firstly, it should be mentioned that the document which is intended to be implemented in Spain (by 1 September 2024) is the so-called electronic control document for the carriage of goods (in Spanish, documento de control administrativo) (hereinafter, the “ECDCG”) which is not equivalent, strictly speaking, to the consignment note (carta de porte) or the CMR. Secondly, it must be explained that the intended implementation of the ECDCG is contained in a draft law which, because of the situation of having an acting interim government since 24 July 2023[1], is pending parliamentary approval. Therefore, the mandatory implementation of the ECDDG is a matter that seems likely to come into force in September 2024, if the incoming government supports and promotes its approval with its current wording.

Without prejudice to the above, we will explain the status of the issue regarding the intended mandatory implementation of such a document and, precisely, we will contextualize it in relation to the e-CMR.

By way of framing the issue of transport digitalization, we will start by mentioning the national provisions in the regulation governing the carriage of goods by road. Law 15/2009 of 11 November 2009 on the contract for the carriage of goods by road, includes, in its article 15, the possibility of the consignment note being issued electronically[2].

However, this possibility of using an electronic consignment note (instead of embodying the contract in a paper document) has not been further developed by specific legislation. Hence, anyone interested in interpreting such provision (and hence, understand what an electronic consignment note is) must find the answers through other rules within the Spanish legal system[3]. Irrespective of the way to interpret the provision, given that the issuing of a consignment note by electronic means is a voluntary regime for the parties to the contract of carriage, its use is not widespread and the application of the provision in case law is, to date, non-existent.

Spain is a country that has ratified both the CMR Convention and the e-CMR Protocol. Ratifying the 2008 Protocol is a sample of the importance of the e-CMR in relation to the intended digitalization of transport. It is not surprising that, in the field of international road haulage, Spanish courts and tribunals have an in-depth knowledge of the CMR Convention. There is abundant case law on many matters dealt with in the CMR Convention and, in fact, and by way of example, Spain has adopted a mechanism for the treatment of the prescription of actions under national law in land transport matters that has its origin in the institution that is regulated in the CMR Convention (the well-known suspension of the period of limitation).

As the reader may be aware, the e-CMR Protocol has been well received by a number of countries. The option to use an e-CMR document is, however, an entirely voluntary matter for the parties (as it is similarly the case in the Spanish regulations with relation to consignment notes). The voluntary use of electronic consignment notes and e-CMRs today is influenced by the fact that it is not compulsory to issue documents to prove the reality of the transport contract, both in Spain[4] and supranationally[5].

The reader will be surely aware too that the e-CMR protocol of 2008 (ratified by Spain in 2011) legally enables the use of e-CMRs to embody contracts of carriage subject to the CMR Convention. To date, this voluntary nature (and therefore the lack of obligation to use e-CMRs rather than CMRs) has led to the fact that in Spain, as in other neighboring countries, its discretional implementation is minimal and there are no more than transport trials that have been successfully documented in this way[6]. Because of its residual nature, it is not surprising that there are no judicial precedents in which a dispute between parties has been analyzed and in which there is an e-CMR in place.

Spain's intention, as pointed out at the beginning of this article, is to make the use of the ECDCG compulsory for the carriage of goods, both for national and international transport[7]. This obligation is provided for in the eighth transitory provision of the Draft Sustainable Mobility Law[8]. The provision aiming at the digital use of the document, so called "Digitization of the administrative control document required for the performance of public road haulage and the journey form required for the performance of public road passenger transport", states that the administrative document control document required for the performance of public road haulage must necessarily be digital as from 1 September 2024. The regulation therefore makes it compulsory for the document to be electronic, although it does not specify how the documentation must be in electronic format.

The aforementioned control document, which is eminently of an administrative (and not commercial) nature, is not properly equivalent to a consignment note as referred to in the CMR Convention or national regulations on the national transport of goods by road. However, the legal text that regulates control documents in Spain specifically states that in those cases in which the transport is documented in a consignment note or other supporting documentation in accordance with the national, European Union or international legislation in force on the matter (with a clear reference to CMRs), the consignment note (or CMR) shall serve as an administrative control document provided that it contains specific information (more precisely, full name of the contractual shipper and of the actual carrier, place of origin and destination of the goods being transported, nature and weight of the goods being transported, date of completion of the transport, registration number of the vehicle used - tractor unit and trailer - and, where appropriate, other remarks or reservations requested by the shipper and the actual carrier).

Assuming, for dialectical purposes, the approval and entry into force, in its current wording, of the Sustainable Mobility Law, the situation would mean that, for the purposes of complying with the provisions of the regulation, the aforementioned administrative control document would have to be digital; and, hence, the parties obliged to issue this document (shipper and actual carrier) would have to opt either for the creation of an ad hoc document containing the aforementioned mentions[9], or for the use of a consignment note in digital form (the electronic consignment note referred to in article 15 of Law 15/2009), or for an e-CMR. And this could certainly be the starting point, even if not for the compulsory use of electronic consignment notes and e-CMR documents, but for their widespread use to avoid having both a digital administrative control document and a commercial document in paper format (consignment note or CMR) coexisting[10].

Thus, Spain intends (even indirectly) to introduce administrative documents to be used in a digital format without waiting for Regulation (EU) 2020/1056 of the European Parliament and of the Council of 15 July 2020 on electronic information relating to the carriage of goods entering into force.

It remains to be seen how the compulsory inclusion of the ECDCG will develop, in the understanding that some interpretative problems could arise, where appropriate and in the initial stages of entry into force of the regulation, because of the work of the Guardia Civil in the field of roadside inspection regarding what should be considered as a digital document (being likely that a mere pdf document may not suffice for the purposes sought after). There is currently a working group in Spain for the promotion of the so-called electronic transport documents, and the Spanish Ministry of Transport, Mobility and Urban Agenda has published a manual explaining the existing application for the submission of ECDCG in road transport controls.

In summary, Spain is taking steps towards the digitalization of transport documentation, so it seems that, soon, the use of electronic consignment notes and e-CMR documents will be a reality.