Questions raised about the interpretation of RD 463/2020, modified by Royal Decree, 465/2020

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The State Bar of La Rioja has transferred to this Management Center the answers it has given in relation to different questions raised by the application of Royal Decree 463/2020, of March 14, declaring the state of alarm for the management of the health crisis situation caused by COVID-19, modified by Royal Decree 465/2020, of March 17.

After examining these responses and in order to unify criteria in the actions of the different units, the following considerations are formulated:

1) Purpose of Royal Decree 463/2004:

The affirmation is shared that the measures introduced by Royal Decree 463/2020 are encouraged by the purpose of avoiding interpersonal contact or closeness as much as possible, and limiting it only to those cases where that interpersonal contact is motivated by a justified need, having always bearing in mind that, as noted in the Constitutional Court Judgment 83/2016 (amparo appeal No. 4703/2012) “the declaration of the state of alarm does not allow the suspension of any fundamental right (art. 55.1 CE contrary sensu) , although yes the adoption of measures that can suppose limitations or restrictions to its exercise ”.

To the above it must be added that it is not the purpose of Royal Decree 463/2020 to completely paralyze the economic activity of the country or, consequently, to avoid work, which must continue to be provided, except in those cases where, as a consequence of the limitations derived from the declaration of alarm status, it is impossible. In any case, the provision of the work must be carried out under the following premises:

a) Employers and workers must adopt all measures within their reach and are adequate and proportionate to protect the health and safety of workers, in accordance with regulations on the prevention of occupational hazards and

b) Organizational systems will be established that allow the activity to be maintained through alternative mechanisms, particularly through remote work, and the company must adopt the appropriate measures if this is technically and reasonably possible and if the necessary adaptation effort is proportionate (Article 5 of Royal Decree-Law 8/2020, of March 17, on extraordinary urgent measures to face the economic and social impact of COVID-19).

2) In relation to retail stores, is it possible to work inside the establishment with this closed?

The criterion is shared that article 10.1 of Royal Decree 463/2020 suspends "the opening to the public of retail premises and establishments", but does not limit activity inside the establishment, which must be limited to the rest of the labor provision , professional or business characteristic that is possible within the establishment (that is, with the exception of sale to the public), since the provisions of article 10 must be combined with the provisions of article 7 of the same legal text, as in its letters c), and d) only allows circulation by public use routes, for c) Travel to the workplace to carry out their work, professional or business provision, and d) Return to the place of habitual residence, as noted by the State Attorney in La Rioja.

2) Can you deliver commercial product, not food, to the customer's home? And, in case it is not possible, could it be if the product were of first necessity such as a refrigerator, washing machine, tv, others.

Taking into account that the purpose of the declaration of the state of alarm and the measures contained in Royal Decree 463/2020 is to avoid the accumulation of people that can facilitate the spread of the coronavirus - something that happens in retail establishments - as well as the diction of article 10.1 of the same legal text, which limits itself to suspending the opening to the public of most of the premises and retail establishments but without any reference to internet commerce, it is considered that this has not been seen limited.

This circumstance is corroborated by the fact that Royal Decree 465/2020, amending the previous one, has incorporated article 14, in its section 4, the express provision that “by resolution of the Minister of Transport, Mobility and Urban Agenda the necessary conditions to facilitate the transport of goods throughout the national territory, in order to guarantee the supply and delivery of products purchased in commerce by internet, telephone or correspondence ”. This rule does not limit, as it may have done, Internet commerce to basic necessity products, so it must be understood that it is not the legislator's will to limit this type of commerce.

3) Can a business collect product from the factory to serve it to a customer abroad?

Conformity is shown with the response offered by the State Bar in La Rioja: “it is an activity of circulation of goods outside the national territory.

In addition to the general restrictions on movement, the delivery of products to customers abroad is affected by the closure of border crossings that the national authorities provide at all times, to the extent that they establish.

In this regard, it is reported that Order INT / 239/2020, of March 16 (BOE of the same day) reestablishes "controls at the internal land borders due to the health crisis caused by COVID-19", although its Unique Art.4 provides that "in order to ensure the continuity of economic activity and to preserve the supply chain, these measures are not applicable to the transport of goods".

To the above it must be added that, without prejudice to the limitations that may be established at the borders or countries of receipt of the product, if the delivery of the product is made to a person who is in another country and, therefore, to hundreds or thousands kilometers away, the purpose pursued by Royal Decree 463/2020 is not at all hampered by the maintenance of foreign trade.

4) Can vehicle repair shops carry out their repair work within the shop? 5) Can vehicle repair shops receive new damaged vehicles? 6) Can repair shops go to the place where a damaged vehicle is found?

As already indicated by this Management Center in a previous note: “In the absence of a provision clarifying whether vehicle repair shops should remain closed, this Management Center and, without prejudice to the decision that may finally be adopted by the Competent authorities understand that vehicle repair shops may remain open, for the following weighted reasons as a whole:

1st) Because, from a technical-legal point of view, auto repair shops are industrial establishments that carry out an industrial activity and provide services. This is clear from Royal Decree 1457/1986, of January 10, which regulates industrial activity and the provision of services in the repair workshops of motor vehicles of their equipment and components, whose second article defines them as “those industrial establishments in which operations are carried out aimed at restoring the normal conditions of the condition and operation of motor vehicles or their equipment and components, in which alterations in said conditions have been revealed after the end of its manufacture ”. Taking into account that the containment measures of article 10 of Royal Decree 463/2020 refer to "commercial activity, cultural facilities, recreational establishments and activities, hotel and restaurant activities, and other additional activities", it does not appear that industrial activity developed by vehicle repair shops can be understood as limited by the provisions of article 10 of Royal Decree 463/2020. With regard to the services provided in these same workshops, they are also not considered to be affected by the limitations sanctioned in that provision, except in the case of the retail sale of products that do not consist of first-class goods. need.

2ª) Because in the state of alarm in which the country finds itself, there are certain essential services that require the use of vehicles (emergency services, firefighters, ambulances, security forces and bodies, surveillance, among others), which now more than ever they must be in the proper conditions of security and maintenance, to guarantee the continuity of such services. For this reason, it is unquestionable that the repair shops that are in charge, either by contract or by other legal formulas, of the maintenance and repair of these vehicles, must remain open.

3rd) Because also in this situation of alarm state, the maintenance of the ground transportation service is essential in order to guarantee the supply of products and essential goods (health, food, hygiene, etc.), so it is also necessary to ensure that the vehicles in charge of said transport can circulate in the proper conditions of security and maintenance, a purpose that can only be achieved if there are open vehicle repair shops.

4th) Because, if article 7 of Royal Decree 463/2020 admits individual movement by vehicle to carry out the activities listed therein and article 10, in accordance with this, allows the opening of establishments that supply the fuel to such vehicles, it is reasonable to understand that the repair shops of those same vehicles may remain open in order to make their circulation possible for those limited purposes established in article 7 of Royal Decree 463/2020. By virtue of the aforementioned considerations, it is understood that vehicle repair shops may remain open, although they may not carry out either restaurant or cafeteria activities (in case they did), or retail goods trade that does not are considered essential. ”

Consequence of the above is that, if it is essential to repair the damaged vehicle or take it to a repair shop, travel by the services of the repair shops would be justified.

7. How many people can go inside a vehicle to the center or workplace? Article 7.1 of Royal Decree 463/2020, after the reform operated by Royal Decree 465/2020, provides that:

"one. During the validity of the state of alarm, people may only circulate along the roads or spaces for public use to carry out the following activities, which must be carried out individually, unless accompanied by persons with disabilities, minors, the elderly, or for any other reason. justified:

a) Acquisition of food, pharmaceuticals and basic necessities.
b) Assistance to health centers, services and establishments.
c) Travel to the workplace to carry out their work, professional or business provision.
d) Return to the place of habitual residence.
e) Assistance and care for the elderly, minors, dependents, people with disabilities or especially vulnerable people.
f) Displacement to financial and insurance entities.
g) Due to force majeure or need.
h) Any other activity of a similar nature that will have to be done individually, unless accompanying people with disabilities or for any other justified reason ”.

Next, article 7.2 establishes that "Likewise, private vehicles will be allowed to circulate along the roads for public use to carry out the activities referred to in the previous section or to refuel at gas stations or service stations."

As can be seen, the will of the legislator is that those activities for which the circulation of people is allowed during the validity of the state of alarm are carried out in any case "individually", whether it is done by walking, running, cycling, on a motorcycle or in any type of vehicle. Admitting that when going in a vehicle the activity can be carried out by several people would not be reasonable, because it would avoid the result pursued by the legislator, which is to avoid the spread of the coronavirus as much as possible. There would be paradoxical situations such as four people could go to a financial institution or work together in a vehicle, and yet they could not go to the same place together on foot, when it is undoubtedly easier to spread the virus in a closed place such as the interior of a vehicle than in an open one, such as the street.

Therefore, it is considered that the vehicle circulation for the activities permitted by article 7.1 must also be done individually.

8. In the event that the answer to the previous question is no, how do you proceed when the other person does not have a driving license and the use of the vehicle is necessary due to the distance or the tools or parts that are required? carry?

Article 7.1 of Royal Decree 463/2020, after the reform operated by Royal Decree 465/2020, provides that the activities listed therein “must be carried out individually”. However, this rule is not absolute, but admits certain exceptions: "that people with disabilities, minors, the elderly, or for other just cause be accompanied." Therefore, as long as there is a duly justified cause, which must be weighed by the competent authorities in each case, vehicle circulation may be carried out by more than one person.

In any case, it does not seem likely that the assumption contemplated in the consultation can occur, since, normally, when the provision of work requires the transport of tools or heavy materials, the worker is required to have the necessary qualification to transport them and, therefore, , the possession of the license to drive the vehicle in which this is done.

9. Assistance services or minor activities can go to private homes to perform work (for example, electricity, plumbing, appliance repair, etc.)

The opinion of the State Bar in La Rioja is shared, according to which, “systematically interpreting arts. 7 and 10, since these services are going to require a displacement and, at the same time, involve a commercial activity, only those that affect "products ... basic necessity" or subsidize situations of "force majeure or situation of need" are allowed (arts. 7.1.a) and 7.1.g) and serve for the normal reception of "essential goods" (art. 10): eg, supplies of gas, water, electricity, telecommunications, or to guarantee the habitability of the houses.

Therefore, minor multi-assistance activities offered by insurance companies on an ancillary basis and that do not present the nature set forth in the previous paragraph would be suspended. ”

The previous criterion is confirmed by the fact that Royal Decree-Law 8/2020 has suspended portability in its article 20 in the following terms:

“While the state of alarm is in force, extraordinary commercial campaigns for the hiring of electronic communications services that require number portability will not be carried out by electronic communication service providers, as it may increase the need for users of physically move to face-to-face customer service centers or carry out physical interventions in the customer's homes to maintain continuity of services.

For this same purpose, while the alarm state is in force, all fixed and mobile numbering portability operations that are not in progress will be suspended, except in exceptional cases of force majeure. ”

10. Can construction companies continue to carry out ongoing rehabilitation works in private buildings and homes?

The opinion of the State Bar in La Rioja is shared, according to which “construction companies can continue to carry out the rehabilitation works underway in buildings and private homes with precision. Because they are not affected by the provision of art. 10.1 referred to "the opening of retail stores and establishments to the public". In addition, the different location of this activity in RDL 1175/1996 on rates of the Economic Activities Tax may be taken into account as an interpretative criterion.

However, the following details must be taken into account:

1º) They should always be carried out with the health conditions regarding displacement and permanence in the workplace.

2º) They are not suspended, notwithstanding that "in the judgment of the competent authority it may pose a risk of contagion", in which case it may be so under the residual clause of art. 10.1 in fine.

3º) There must be a possible incidence of article 34 and concordants of Royal Decree-Law 8/2020, of March 17, of extraordinary urgent measures to face the economic and social impact of COVID-19 published in today's BOE that, Regarding administrative contracting, it regulates the automatic suspension of contracts. ”

Precisely article 34 of Royal Decree-Law 8/2020 confirms that it is the will of the legislator that the constructive activity is maintained except when, as a consequence of the state of alarm, it is not possible. If this criterion applies to contracting public works, it can also be transferred to contracting private works.

11. It is not clear if the stationery companies can open (in Logroño they have already ordered to close some) and in RD art. 10.1 as an exception to the closure of the “press and stationery” retail stores. We have to take into account that the stationeries sell products necessary for carrying out work from home (paper, toner for printers ...) and for shipments. As well as for the school tasks that children now have to do at home.

12. What is the difference between kiosk and stationery?

13. In some places (we are aware outside of La Rioja) they have ordered the closing of retail electrical appliance stores when they are essential, since food must be conserved, for example. A refrigerator is breaking.

14. Some retail plants have also been ordered to close and usually have plant protection products… for agriculture and animal feed, can't they open either?

This Management Center shares the arguments given by the State Bar in La Rioja, namely:

"In response to questions, 11, 12 and 13, and 14 As an interpretative criterion of art. 10.1 It must be assumed that this establishes a general rule, which is the suspension of the opening to the public of retail establishments and premises. From there, as with any other exceptional rule, exceptions to that general rule must always be interpreted restrictively (art. 4.2 Cc). Thus:

1º) The suspension does not reach the activity of the wholesale stationeries
2º) The suspension does not reach retail establishments that exclusively dedicate themselves to the press and stationery as essential products.
3º) Regarding those establishments in which other products not included in the exception of art. 10.1, in addition to the own press and stationery, a greater casuistry is opened. In any case, the establishments may remain open only to dispense these products and as long as they have been doing so far (due to being registered, for example, in the corresponding rate of the Economic Activities Tax).

The activity of the premises in terms of personal and material means must conform to what the sale of such products represents (or others covered in art. 10).

Carrying out activities to sell different products, carried out in the heat of that limited-purpose opening, could be considered a fraudulent circumvention of the limitations of RD 463/2020 and lead to the application of the sanctioning regime provided for in art. twenty.

In this regard, it is appropriate to remember that RD 463/2020 itself states that both the "State Security Forces and Bodies, the Police Bodies of the autonomous communities and local corporations" and the "members of the Armed Forces" ( articles 5.1, 5.6 and DA 5ª ED 463/2020) have the character of “agents of the Authority”, therefore, according to art. 5.2 “may carry out the checks on people, goods, vehicles, premises and establishments that are necessary to check and, where appropriate, prevent the services and activities suspended in this royal decree from taking place, except those expressly excepted. To do this, they may issue the necessary orders and prohibitions and suspend the activities or services that are being carried out. ”

In order to complete the previous answer, the considerations made by the State Attorney in Salamanca on what can be understood as basic necessity products are incorporated, without prejudice to the fact that some of the products and services listed can neither be acquired nor provided as a consequence of the prohibitions expressly contained in relation to some of those products and services in Royal Decree 463/2020:

“There is no general legal definition of what are“ essential products ”. It seems that it will be necessary to be in the specific case without prejudice to be able to take into account the following guidelines:

- When interpreting certain types of crime aggravated by falling on things of “first necessity” (for example, the theft of art. 235.1.2º, the fraud of art. 250.1.1º, damages of art. 264.2.3ª, the deduction of article 281, corruption in businesses of article 286 quater.do the reception of article 298.1.b of Cp) the TS has been equating them to "things that can not be dispensed with for subsistence or health ”(STS 5/3/2012, RJ 20124640 or STS 30/5/2001, RJ 20015612), a concept that (for criminal purposes) does not only cover food, clothing or medicines, but, depending on the case, also housing (STS 20/9/2018, ECLI: ES: TS: 2018: 3322) or even a vehicle adapted for a person with a disability (STS 7/21/2016, ECLI: ES: TS: 2016: 3673 ).

- The art. 44 of the VAT Law (Law 37/1992, of December 28) contains a definition (to delimit the scope of a very specific assumption of tax exemption), stating “for these purposes, goods of first necessity are understood as that they are indispensable for the satisfaction of people's immediate needs, such as food, medicine, and bedding and clothing. ”

- For its part, in the list in Annex I of Royal Decree 1507/2000, of September 1 (which updates the catalogs of products and services for common, ordinary and general use or consumption and goods of a durable nature, for the purposes of the provisions, respectively, in articles 2, section 2, and 11, sections 2 and 5, of the General Law for the Defense of Consumers and Users and corresponding regulations) the following “products and services for use are listed or common, ordinary and generalized consumption ”: