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The persistent economic crisis has also led to significant changes in the residency system of citizens of the European Union and their family members. The permissive approach existing in Spain by virtue of Royal Decree 240/2007, of February 16, on entry, freedom of movement and residence in Spain of citizens of States members of the European Union and other States part in the agreement on the European economic area, whereby any citizen of the European Union and family members referred to in the Royal Decree could reside in Spain, without having to prove practically any requirement, aside from carrying a passport and being registered in a Spanish municipality, was modified by the Real Decree-law 16/2012, April 20, on urgent measures to ensure the sustainability of the national health system and improve the quality and safety of their benefits. This modification resulted in a hardening of the conditions required for the enjoyment of the status of citizen of the European Union.
In fact, what this Royal Decree did was to transpose in its entirety the EU Directive 2004/38/EC, of the European Parliament and of the Council, of 29 April 2004, on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States, whose article 7 regulated the conditions that must be met in those cases in which a national of a Member State of the European Union or other States part in the European economic area wanted to reside in another Member State, other than that it originated, for a period exceeding three months.
As result of these changes, on the 9th of July 2012 the Order PRE/1490/2012 was issued, which dictates rules for the application of article 7 of the Royal Decree 240/2007, of the 16th February, on entry, free movement and residence in Spain of citizens of States members of the European Union and other States party to the agreement on the European Economic Area.
We should point out that these orders and instructions are usually subject to continuous change, which means it is always best to ask the respective police stations or get advice from an expert before undertaking any procedure. We shall, therefore, limit ourselves to exploring what the Order currently in force states in combination with what is established in the Royal Decree 240/2007 of 16 February on entry, freedom of movement and residence in Spain of citizens of States members of the European Union and other States party to the agreement on the European Economic Area.
The citizens of a Member State of the European Union or of the other States party to the agreement on the European Economic Area and Switzerland have the right to reside in Spain for a period exceeding three months if they satisfy the conditions laid down in article 7 of the Royal Decree 240/2007, of February 16.
These conditions are as follows:
1) The application for registration in the Central Register of Foreigners must be presented personally at the Office of Foreigners in the province where they intend to stay or take up residence or, failing that, in the Police Station.
2) The upper limit for presentation of the application will be three months as from the date of entry into Spain. A certificate of registration will be issued which will contain the name nationality and place of residence of the applicant, your N.I.E., and the date of registry.
If the application for registration does not meet the requirements for processing, the applicant will be contacted in order that, within a period of ten days, the faults be rectified or the required documents submitted, with an indication that, if the faults are not remedied, the application will be taken as not presented, a decision which can be appealed.
Along with the application, a passport or other identity document should be provided. In the event that the passport or national identity document are expired, a copy of these must be provided and an application for renewal.
A declaration or a certificate of employment must be provided. These documents shall include, at least, the data concerning the name and address of the company, tax ID and code for the contribution account.
In any case, the presentation of a work contract, registered in the appropriate public employment service or document of documents of registry in the corresponding Social Security system, although this documentation will not be required if the person concerned consents the verification of this data in the files of the General Treasury of Social Security.
Proof must be given in the case of being self-employed.
Documentation should be provided accrediting compliance with the two following condicions:
- Health Insurance, public or private, contracted in Spain or in another country, provided that it provides coverage in Spain during their period of residence equal to the one provided by the national health service. Pensioners are considered to meet this condition if they accredit, with the corresponding certification, that they are entitled to health care in the State from which they receive their pension
- Sufficient Economic Resources, for themself and for the members of their family, so as not to become a burden on the Spanish state during their period of residence. The accreditation of the possession of a regular income, including the possession of property, shall be carried out by any means admitted by law, such as title deeds, certified checks, supporting documentation of obtaining income from capital or credit cards, bringing in the latter case an up-to-date banking certification attesting the quantity available on the cited credit card.
To read this article in Spanish, click here.
In a previous post, we discussed the chance discovery of Antiquities within our legal system. We stated that both the discoverer and the owner had the right to a compensation equivalent to half the value that the legal evaluation should give to the item, which would then be distributed among them equally.
This said, we also discussed the issue of what would be the basis of the value of the object of calculation; the antiquities actually found by the discoverer or the entire deposit, when precisely the news of the finding leads to the Administration discovering other antiquities and elements in the same archaeological site.
Obviously, the Administration has always tried to connect the compensation with the few antiquities found rather than the entire site, against the interests of the discoverer, whose economic expectations suffer as a result.
The Supreme Court in its recent ruling of April 24, 2012 (section 4, nº 1509 resource / 2010) confirmed it´s previous criterion of January 17, 1992, by understanding that the compensation is calculated with reference to the whole of the archaeological site and not just the value of the objects actually found.
The decision of April 2012 dismissed the appeal lodged by the Junta de Andalucía and rules in favour of the discoverers, who found bones and pottery shards in a place (grounds of the dam of the Barbate River, in the municipality of Alcalá de Los Gazules) of which technical personnel, who visited it the day after, said, “the existence of structures carved into the natural terrain, as well as ostostratos which could be configured dolmens of small and medium-sized and therefore artificial funerary structures”.
The discovery triggered the corresponding archaeological intervention, giving rise, as it reads in the sentence, to “the location of other graves” and, in sum, to the discovery of the Necropolis del Paraje de Monte Bajo.
In my opinion, we should not be discouraging the collaboration of private individuals in the conservation of the Spanish Historic Heritage in order to prevent plundering. If the Administration adopts petty assessment criteria nothing but undesirable consequences will ensue.
For more articles on art and heritage, click here.
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For more information, visit our website or contact us directly.
Antonio Pedro Rodríguez Bernal Lawyer and renowned specialist in the law applicable to the art market, historical heritage and antiques. He has participated in numerous international transactions of valuable works of art, either as a lawyer of the parties or of the participating dealers. He is frequently invited to radio programmes or interviewed in the press to discuss current issues relating to the Law of art, historical heritage and antiques. Email: info@rodriguezbernal.comTo read this article in Spanish, click here.
Property which belongs to the Spanish Historical Heritage (Patrimonio Histórico Español o PHE) can not circulate freely around the world, even within the European Union, despite the existence of a single market and freedom of movement of people, goods and capital. The export of the goods, in the majority of cases, is subject to administrative authorization.
By export we do not only mean the sale or international transmission of a work of PHE, as, in the field of legislation, both nationally and internationally, the concept has a much broader meaning.
Also it should be made clear that the legal system of exports of cultural goods, established in the Law of Spanish Historical Heritage, and it´s system of authorizations, has been very nuanced by the regulations of the European Union, particularly by Regulation (EEC) nº 3911/1992, of the Council, of 9 December 1992, concerning the export of cultural goods. With regards to the repression of export, since we are talking about international traffic of goods, Spanish regulations must be understood alongside both EU regulations and the various universal-scope treaties ratified by Spain, which attempt to solve the problem of the collision of jurisdictions and conflict of laws.
In this post, we shall not get bogged down in an overall analysis of the problems that the export of cultural property – both legal and illegal – entails and we will focus on offering a few simple explanations of the pertinent Spanish legislation. The reader must take into account that we speak of a particularly delicate matter and the same regulation will not be applied to each and every export, so you should seek expert advice when the time comes to act.
Concept of Export and Exportable Goods
For the purposes of the law of PHE, export means the departure from the Spanish territory of any of the assets that comprise the Spanish Historical Heritage. In the concept of export is included any act or operation that implies the cultural good leaving the country and not just the sale of the good to a buyer located in a third country – non-member of the European Union -. Therefore, even the mere leasing of property, for example, for the purposes of museum exhibition or research, is included in the concept.
Not all the goods of the PHE are exportable and not all those goods are subject to limitations.
Exportable Goods
The following good are not exportable, by express provision of the law:
1) Those goods that the Government declare expressly not exportable for belonging to the Spanish Historical Heritage, as a precautionary measure until the process is begun to include the good in one of the categories of special protection provided for in the law.
2) Property declared of cultural interest, except in the case of a temporary departure from Spain, fulfilling certain conditions and guarantees specified in the mandatory administrative authorisation or the export is carried out as a result of intergovernmental agreements of exchange.
There is also other property implicitly not exportable, such as that belonging to the ecclesiastical institutions, which are owned by public administrations, those that belong to the national heritage, the archaeological heritage and, provisionally, those that have initiated the process to declare the good of cultural interest. These goods could temporarily leave Spain or be exchanged in similar conditions to those mentioned in the preceding paragraph.
Goods that are Exportable with an Administrative Authorisation
Goods included in the Spanish Historical Heritage that are more than a hundred years old and, in any case, those enrolled in the General Inventory of movable goods not declared of cultural interest which have singular relevance are subject to administrative authorisation, which should be requested by the owners or holders. Also, provisionally, the same applies to those goods which have been the object of an application for inclusion in the Inventory. The export of these goods is not only subject to administrative authorization, but also there is a right of pre-emption which may be exercised by the Spanish Administration.
Goods which are Exportable with an Administrative Authorisation which is Always Granted
Moveable goods whose import has been done legally and is properly documented so that the imported good is fully identified. Over the course of ten years, since import, such goods may be exported prior license from the state administration, which shall be granted provided that the application complies with all the legal requirements, without providing for any right of preferential acquisition.
Goods which can be Freely Exported
Residually, those goods that are not covered in the preceding paragraphs can be exportable freely. I.e. goods included in the Historic Heritage which are less than 100 years old and property which is more than 100 years old which does not have any relevance to the Historical Heritage. This assertion, as obvious as it seems, raises some important issues in these matters.
How can we know if a good, which is more than 100 years old, which is not registered in the property registry of Cultural Interest or in the inventory, has any relevance to the PHE and is therefore subject to official export authorization? The generic and abstract definition of PHE leaves the owner of these goods in an apparent legal uncertainty, that, in some cases can serve to exempt him from criminal responsibility for his offences.
Application for Export and Simultaneous Non-Refusable Sales Offer in Favour of the Administration
As a general rule, whenever one makes a request for export, the declaration of value made by the applicant will be considered a Non-Refusable offer on behalf of the State Administration, which, if it does not authorize such export, will be able to accept the offer within a period six months and will have one year to make the appropriate payment. The rejection of the request for export does not imply the acceptance of the offer, which must always be express.
The application for the export permit will be sent to the Ministry of Culture, except in the Autonomous Communities that have assumed responsibility for processing these applications.
Decision Period and Tacitly Positive Administrative Silence
The decision of the export permit application shall be given within the period of three months from the date on which such application has entered the records of the competent administrative authority. Once this period has expired without express decision, the applicant can assume that the request has been granted.
The tacit decision requires the issuance of the corresponding certification, which will be responsibility of the General Direction of Fine Arts and Archives of the Ministry of Culture.
Fees
The authorization for the export of any movable property included in the Spanish Historical Heritage will be subject to a fee, unless it is an export of movable property that takes place during the ten years following their importation (and meets certain legal requirements); a legally authorized temporary export; or export of moveable objects from living artists.
Sanctions
The infringement of the provisions on export of goods of PHE can result in various penalties.
a) Attribution of Illegally Exported Good to the State
Movable goods, included in the PHE, exported without the required authorization (which also applies by logical deduction to non-exportable goods) belong automatically to the State.
b) Crime of Contraband
The export of a moveable good included in the Spanish Historical Heritage, carried out without the necessary authorization, can constitute a criminal offence, or, possibly, smuggling. Those that were involved in the export and those others that by their action or omission, willful or negligent, made it possible will be held jointly responsible for the offence committed
According to the organic law 12/1995, of 12 December, of Suppression of Smuggling, the crime of smuggling is comitted, provided that the value of the goods is equal to or greater than 50,000 €, when goods that integrate the Spanish Historic Heritage are exported or dispatched without the necessary authorization, or having obtained the authorization with false documents or data.
In general, those who commit the crime of smuggling will be punished with the penalties of imprisonment for one to five years (in its upper half) and a fine.
In cases of negligence, the sentence will be applied to a lesser degree.
The goods will be confiscated.
c) Administrative Infractions
Unless they are constitutive of crimes, illegal export constitutes an administrative offence punishable, when the good can be valued economically, with a fine of up to four times the value of the damage caused. In any other case, with a fine of up to 601,012.10 €.
To read this article in Spanish, click here.
For more articles on art and heritage, click here.
For more articles in English, click here.
For more information, visit our website or contact us directly.
Antonio Pedro Rodríguez Bernal Lawyer and renowned specialist in the law applicable to the art market, historical heritage and antiques. He has participated in numerous international transactions of valuable works of art, either as a lawyer of the parties or of the participating dealers. He is frequently invited to radio programmes or interviewed in the press to discuss current issues relating to the Law of art, historical heritage and antiques. Email: info@rodriguezbernal.comThe attempt by the Spanish Government to attract wealthy investors and retiree´s to Spain has already been a frequent topic on this blog and is evidenced by laws which seek to promote business and settlement In this country.
However, it is also alarming to note the contradictory messages being given to expatriates from the United Kingdom and other European countries.
Where the enforcement of tax law has been somewhat lax in the past, the severity of the Spanish economic crisis has paved the way for a series of punitive measures aimed at extracting the maximum possible revenue from overseas nationals.
Under the new rules, expatriates could face minimum fines of 10.000 euros for not declaring overseas assets and for not, therefore, allowing the Spanish Tax Administration to check the data included by the resident in his or her tax returns.
These measures come on the heals of a steady drop in the economic quality of life of pensioners who, as a result of unfavourable exchange rates, have noted a decline in the worth of their pensions. Time will tell up to what point recent legislation will lead to an exodus of northern European expatriates who can no longer afford to enjoy life in the Iberian peninsular.
At a time when Spain is struggling to maintain interest in the tourist sector, it is surprising that such draconian penalties have been introduced, as they can only serve to stifle interest in areas such as the Costa del Sol or Costa Brava.
Article by Mark Athos Franklin, native English lawyer at the Rodriguez Bernal law firm. For more articles on Tax law or for more articles in English, click the links provided. Antonio Pedro Rodríguez Bernal At the Rodriguez Bernal law firm we have a department specialised in tax law that is highly experienced in assisting clients from many countries and nationalities. For more information about the services we offer on tax issues, visit our web site or contact us directly. Email: info@rodriguezbernal.com. mathos@rodriguezbernal.com.Five days ago the Rajoy Government approved the preliminary draft of the Law for the Protection of the Life of the Conceived and of Pregnant Women’s Rights.
It is a controversial project, in as much as it collides with the socialist reform of 2010, which regarded abortion as a “woman’s right”, and that did little to emphasize the importance of the designed child.
The most recent judgements of the Spanish Constitutional Court have therefore been recognized by the Parliament, guaranteeing the “nasciturus” the right to life which is established in article 15 of the Spanish Constitution. However, this new legal consideration of the fetus cannot be assimilated fully to that of a human being after birth, insofar as it continues to recognize certain legal cases in which an abortion would be allowed.
The most important aspects to be aware of in the proposed reform are that a woman can only abort her child within 12 weeks of gestation is case of rape and within 22 weeks in case of serious danger to the health or life of the woman. In the first case a report of sexual assault is required, while in the second it is mandatory to provide a report from two physicians that indicates danger for the woman.
Article by Mark Athos Franklin, English lawyer at the Rodriguez Bernal law firm. For more articles on criminal law or for more articles in English, click the links provided. Antonio Pedro Rodríguez Bernal At the Rodriguez Bernal law firm we have a department specialised in criminal law that is highly experienced in assisting clients from many countries and nationalities. For more information about the services we offer on criminal issues, visit our web site or contact us directly. Email: info@rodriguezbernal.comThree days ago a Royal Decree-Law was passed aimed at implementing measures to promote labour stability and improve the employability of workers.
It is another initiative aimed at promoting a “flexible” labour market, giving companies a series of recruitment formulas that allow them to save on spending.
How will the labor reform benefit businesses and to what extent will it negatively affect the rights of workers?
Below, we summarize the most relevant reforms:
1) The possibility of part-time workers receiving overtime has been eliminated, promoting instead the legal figure of “supplementary hours.”
2) The trial period of fixed-term contracts may not exceed one month, unless a labour collective agreement provides for a greater time period. In any case, this period shall not exceed six months.
3) The age of children who can justify a reduction in working hours with proportional reduction of salary has been increased from eight to twelve years.
4) Temporary work companies will be able to give work experience employees to other companies
5)The transformation of these work experience contracts into fixed contracts will be subsidised.
6) The social security contribution rate is reduced by 1% for part-time employees.
Without a doubt, these measures will facilitate business activity. However, it is not so clear that the preference shown by the Government for part-time recruitment is well thought out, given the job instability that it cannot fail to produce. From this page, we will keep our readers informed on future developments…
Article by Mark Athos Franklin, English lawyer at the Rodriguez Bernal law firm. For more articles on Business law or for more articles in English, click the links provided. Antonio Pedro Rodríguez Bernal At the Rodriguez Bernal law firm we have a department specialised in company law that is highly experienced in assisting clients from many countries and nationalities. For more information about the services we offer on business issues, visit our web site or contact us directly. Email: info@rodriguezbernal.comThe eagerness of the Government to introduce reforms in business matters has manifested itself once again with a draft for a “Law for the Improvement of the Corporate Governance of Companies”.
The areas that the law intends to reform include general meeting of shareholders, conflicts of interest, the management of the company, votes, appeals against company agreements and the salaries of the directors, among others.
However, the most relevant modifications relate to three topics: shareholders will approve the policy of remuneration at least every three years, the capital necessary to exercise the rights of minority shareholders is reduced from 5% to 3% and the post of administrator should be held for a maximum period of four years, instead of the current six.
It remains to be see how the subsequent parliamentary processing of the draft will affect it´s content.
Article by Mark Athos Franklin, native English lawyer at the Rodriguez Bernal legal practice. For more articles on business law orfor more articles in English, click the links provided. Antonio Pedro Rodríguez Bernal Lawyer and experienced professional in business law. He has participated continuously in company operations for the last 15 years of his legal career, assisting business owners and the self-employed from many different countries and nationalities. For more information on the services our firm provides in business matters, visit our web page or contact us directly. Email: info@rodriguezbernal.com
After the release of Inés del Río, after the recent and controversial judgment of the European Court of Human Rights on the “Parot doctrine”, it seems that Spanish society has been somewhat disappointed with the functioning of Justice in its country. Not only has a woman condemned to 3.828 years in prison for having committed 24 murders been let out on street, but the Spanish State has also been forced to pay 30,000 euros in compensation (which finally will go to satisfy the civil liability of the crimes). Moreover, the Council of Europe has celebrated compliance with their revision of the Parot doctrine and the release of 69 inmates, 61 of them members of the ETA.
The Parot doctrine, simply explained, refers to a process of determination of the specific sentence that the convicted party will serve in prison. Put another way, our Penal Code sets maximum sentences that can be inforced (40 years, according to the text of the 2003 reform), according to which a conviction such as that of Inés del Río could never surpass this limit. On top of these limitations are the so-called “prison benefits”, among which is the possibility of reducing the sentence through hard work. To give a practical example, a serial killer, sentenced to hundreds of years in prison, would serve a maximum of 40 years and could see his sentence decreased by work done in the prison.
As a response to this mockery of the State’s punitive power, the Supreme Court issued the verdict 197/2006, which allowed the prisoners to reduce their sentences through work, but taking as reference the total sentence (often hundreds of years) and not the upper limit of 40 years. The result was a nearly complete serving of the upper limit allowed by the code and an effective failure to apply the prison benefit system to these criminals.
It seems obvious that the Spaniards have reason to feel betrayed by the recent acts of the criminal justice system, but should carefully consider who is really guilty of the current situation of impunity of the recently released parties. Ultimately, the interpretation that the Strasbourg Court has made seems the most rational and the most consistent with the constitutional principle of non-retroactivity, which does not allow us to apply a rule to criminal acts already produced before its entry into force.
Wouldn’t it be fairer, perhaps, to realize that the present situation has been caused, not by the judges, but by a negligence from our law makers in not reforming our criminal code on these issues and making it unnecessary to resort to formulas like the Parot doctrine by the judges
For more information about proposed reforms to the Spanish Criminal Code, click here.
Article by Mark Athos Franklin, English lawyer in the Rodríguez Bernal law firm. Antonio Pedro Rodriguez Bernal has been practicing Law for over fifteen years and has extensive experience in criminal matters and in administrative procedures. For more information, visit our webpage’s related section or contact us directly at mathos@rodriguezbernal.com.It has been three days since the presentation of the draft of the very controversial “Law of Public Safety” in the Council of Ministers. It is a reform that has left few people indifferent, since it affects acts such as insults to public authority or demonstrations without permission before the Congress, that may soon be punished with fines of thousands of euros.
In response to criticism from the public, various precepts of the first draft have been modified. For example, threats or insults to police officers were considered serious offenses in the early drafting of the project, and were punished with fines of up to 30,000 euros. Currently this conduct has been classfied as a minor offense and the fine has a ceiling of 1000 euros.
Similarly, protests outside the Congress, the Senate or the organs of Government of the Autonomous Communities are not now considered very serious infractions (with a fine of up to 600,000 euros), but they will be serious infractions (a fine of up to 30,000 euros).
There remain some offences punished as very serious, as it is the case of disturbances of security at public events, demonstrations in airports, stations and power plants.
However, the reform has not only been criticised for the severity of its sanctions. The idea of employing administrative sanctions for acts that many believe should only be prosecuted before the courts has also been questioned. It is what some legal experts call the “escape” of criminal law into administrative law, whereby the Government takes it upon itself to substitute judges in punishing criminal behavior. Moreover, when citizens want to appeal administrative penalties, they will have to pay court fees, effectively violating the right of citizens to have affordable access to justice.
Also troubling is the desire of the authorities to limit the right of citizens to organize demonstrations against the Government. While the new law does not directly criminalise demonstrations (which would be unconstitutional), it does foresee penalties for mere participants in such manifestations when they are not properly communicated to the authorities by the organizers. Such previsions create a state of intimidation in the public when it comes to exercising their right to protest.
It remains to be seen if further amendments will be introduced to the text of the preliminary draft. From this page we will keep you informed on the latest developments.
Article by Mark Athos Franklin, English lawyer in the Rodríguez Bernal law firm. Antonio Pedro Rodriguez Bernal has been practicing Law for over fifteen years and has extensive experience in criminal matters and in administrative procedures. For more information, visit our webpage’s related section or contact us directly at mathos@rodriguezbernal.com.Spain remains one of the most popular retirement destinations for British retirees and it is estimated that close to one million Britons currently live in Spain. Bearing this fact in mind, it is fundamental to understand something of how British pensions are obtained and taxed in Spain.
A British ex pat can still receive his or her UK state pension providing he or she informs the Department for Work and Pensions and has paid appropriate national insurance contributions, and it will increase in line with pensions paid in the UK. If he or she has ever worked in Spain, it will be necessary to apply to the Instituto Nacional de la Seguridad Social (INSS). However, in any other case, the application is made through the UK.
However, another issue to consider is how to receive a UK pension. Some opt to have their state pension paid directly into their Spanish bank account, while other prefer to have it paid into a UK bank. This choice is important, as having the payments paid directly into a Spanish bank may result in having an unfavorable exchange rate applied on the particular day of the exchange. It is more and more frequent for British permanent residents in Spain to employ companies like Smart Currency Exchange to capitalize on a favorable exchange rate for large sums of money.
With regards to the different classes of pension, it is worth bearing in mind the following:
1. Pension Lump Sums: Note that pension lump sums are tax-free in the UK, but are taxable in Spain if received whilst Spanish tax resident. That is why it is far more tax-efficient to take the lump sum prior to becoming Spanish tax resident.
2. Occupational and State Pensions – Occupational and State pensions are only taxable in Spain if you are resident here, and are taxed as a part of your general income. A deduction of between €2,652 and €4,080 is available against such income (the higher the income, the lower the deduction, although it cannot be reduced below €2,652) in calculating the taxable income. This income is then taxed at the progressive scale rates from 24% to 43%.
3. Government Service Pensions: Government service pensions (e.g. civil service, local authority, fire service, police, armed forces, and certain teachers, but not NHS pensions) remain liable only to UK tax and are not taxable in Spain.
