17DEC ESP PAQUETE

20DEC

BAS

This professional report outlines the potential judicial review opportunities associated with the Spanish Package as discussed on the COCOO platform, with a particular focus on the EU Mobility Package and related regulatory interventions. As requested, this analysis assumes that Spanish administrative and competition law is substantially equivalent to the principles of UK and EU law provided in the accompanying documentation.

The Spanish Mobility Package Judicial Review

The primary opportunity for judicial review stems from the failure of the Spanish government to fully transpose and apply the EU Mobility Package. This inaction has allegedly resulted in economic and social damages due to unfair competition and market distortions within the European transport sector.

The Challenge:

A claim would target the government’s failure to act in accordance with its treaty obligations to implement EU directives. In administrative law, this constitutes illegal inaction or a failure to discharge a mandatory duty.

The Balancing Act:

The court must weigh the goal of economic efficiency—represented by the current unrestricted or inadequately regulated transport market—against the wider public interest. The wider public interest in this context includes the social welfare and working conditions of drivers, the security of the supply chain, and environmental sustainability. From an economic efficiency perspective, the government might argue that delayed transposition avoids immediate regulatory burdens on the transport industry. However, the wider public interest suggests that such inaction promotes a race to the bottom in terms of labor standards and creates negative externalities, such as increased accidents and environmental degradation, which eventually translate into higher public costs.

The State Aid and Air Europa Judicial Review

Another significant opportunity relates to the COVID-19 State Aid Temporary Framework, specifically the substantial aid provided to carriers like Air Europa and the subsequent oversight of its acquisition by IAG.

The Challenge:

This involves challenging the government’s decision to grant selective aid without sufficient verification of the recipient’s pre-crisis financial health or the long-term anti-competitive distortions created by such a measure. Grounds for review would include irrationality and a failure to consider relevant material considerations, such as the risk of creating a dominant market position that harms consumer welfare.

The Balancing Act:

The balancing act here is between the preservation of a national champion to ensure connectivity and employment (WPI) and the maintenance of a competitive single market (EE). While the government may justify the aid as necessary for national economic security, the counter-argument is that it facilitates regulatory capture, where a single company benefits at the expense of competitors and the tax-paying public. A successful challenge would demonstrate that the aid was disproportionate and that less restrictive measures could have achieved the same social goals without entrenching a monopoly.

Regulatory Capture and Professional Services Review

The documents also highlight opportunities to challenge the regulation of liberal professions and quasi-markets in Spain, particularly where (semi) self-regulation leads to barriers to entry or price-fixing.

The Challenge:

This targets decisions by professional bodies or regulators that restrict competition under the guise of protecting the public interest. For example, rules preventing multidisciplinary partnerships (similar to the Wouters case) or those fixing minimum tariffs can be challenged as being procedurally improper and lacking an objective public interest justification.

The Balancing Act:

The court must balance the need for professional independence and quality standards (WPI) against the consumer’s right to innovation and competitive pricing (EE). The documentation suggest that while public authorities have a duty to protect the public from mediocre services, they should not use this as a pretext to insulate a profession from market pressures. The analysis should reveal whether the regulation is truly in the public interest or if it is a form of rent-seeking by the regulated entities.

Financial Regulation and the Real/Nominal Mismatch

A more technical judicial review opportunity involves the oversight of utility and financial regulators regarding their financeability assessments.

The Challenge:

This challenge focuses on whether regulators have failed their duty to ensure that companies can finance their activities, particularly when there is a mismatch between real rates of return and nominal interest payments. If a regulator forces a company to inject equity or face dilution based on flawed financial ratios, this could be seen as an irrational exercise of power.

The Balancing Act:

The regulator must balance short-term consumer benefits—achieved through keeping prices artificially low—against the long-term stability and investment capacity of the industry. Failing to resolve the real/nominal mismatch may provide a temporary win for consumers but risks a corporate death spiral or under-investment in critical infrastructure, which is a significant failure of the wider public interest in the long run.

Procedural Considerations and Standard of Review

For any of these opportunities to be successful, claimants must be mindful of the strict time limits for judicial review, which are generally two months and ten days from the date of the decision or knowledge of the act. Standing is also critical; third-party competitors or victim groups must demonstrate they are directly and individually concerned by the decision.

The standard of review will depend on the degree of discretion granted to the public body. While courts often give wide latitude for complex economic assessments, they are increasingly willing to scrutinize whether the evidence relied upon is reliable, consistent, and capable of supporting the conclusions. In Spain, as in the EU, the focus is shifting from a mere jurisdictional check to a substantive justification check, meaning the government must explicitly justify why it prioritized certain interests over others.

ALLIES

Based on the case file regarding Spain’s failure to implement the EU Mobility Package and the proposed judicial reviews (JRs) against UK authorities, here is a list of entities that would significantly benefit from a successful legal challenge. A favourable court judgment would provide them with grounds for follow-on compensation or restore a fair competitive environment.

### Primary Beneficiaries: UK Haulage Industry Representatives
These organizations represent the diffuse class of victims and are best positioned to leverage a successful JR for the benefit of their members.

* **Road Haulage Association (RHA)**
* **How They Benefit**: The RHA has likely been lobbying the DfT on this issue. A JR finding that the DfT acted irrationally by failing to assess or mitigate the harm would vindicate their long-standing complaints. It would strengthen their position in seeking governmental support, remediation funds, or even forming the basis for a collective compensation claim on behalf of members.
* **Contact**: The RHA’s head office is at RHA House, 16 Welcombe Road, Kenilworth, CV8 2EG. For official correspondence, particularly on policy and legal matters, you would need to identify the correct department via their website (rha.uk.net). The general enquiry email is typically `info@rha.uk.net`.

* **Logistics UK**
* **How They Benefit**: As a major trade body, Logistics UK’s members are directly harmed by the unfair competition. A successful JR against the DVSA for failing to adapt its enforcement regime would directly support Logistics UK’s advocacy for more effective and equitable border checks. This could lead to operational changes that level the playing field for their compliant members.
* **Contact**: Logistics UK’s headquarters are at 14 Cromwell Place, London, SW7 2JR. For legal and policy issues, it is best to contact their dedicated policy or public affairs team. Their main contact email is usually `general@logistics.org.uk`.

* **UK Haulage Companies (Medium to Large Enterprises)**
* **How They Benefit**: Individual companies, especially those with significant international operations to and from Spain, have suffered quantifiable losses. A declaratory judgment from the JR could be the essential “Finding of Infringement” (FOIG) needed to initiate a follow-on tort claim against the UK authorities for misfeasance or negligence, seeking damages for lost revenue.
* **Contact**: Specific companies are not named in the brief, but they would be identifiable through industry networks. Companies like **Eddie Stobart Logistics**, **Wincanton**, or **John Menzies** (with large transport divisions) could be approached. Contact details are found via their corporate websites, typically under “Company Secretary” or “Legal Department”.

### Secondary Beneficiaries: Allied Groups Gaining Positive Externalities
These groups are not direct victims but would gain significant advantages from a restoration of fair competition and regulatory integrity.

* **Transport Unions (e.g., Unite the Union – Road Transport Commercial & Logistics Sector)**
* **How They Benefit**: The wage dumping enabled by the enforcement gap undermines collective bargaining and depresses driver wages across the continent. A JR success that forces UK action and indirectly pressures Spain to comply helps protect fair wage agreements and working conditions for UK and EU drivers.
* **Contact**: Unite the Union’s head office is at Unite House, 128 Theobald’s Road, Holborn, London, WC1X 8TN. The specific regional or national officer for the road transport sector should be contacted. General enquiries can be sent via the contact form on their website (unitetheunion.org).

* **Investors in UK Logistics and Transport Infrastructure**
* **How They Benefit**: Market distortion caused by regulatory failure creates unpredictable investment conditions. A court-mandated correction of this failure would reduce investment risk, improve the valuation of compliant UK firms, and restore confidence in the sector’s governance. This benefits pension funds and institutional investors with holdings in UK logistics.
* **Contact**: This includes firms like **Tritax** or **SEGRO** (large logistics property landlords) and asset managers. Contact is through investor relations departments listed on their corporate websites.

* **Compliant Spanish Hauliers and Their Associations**
* **How They Benefit**: Spanish companies that have invested in compliance are also victims, undercut by domestic “shell companies” exploiting the state’s inaction. A UK JR that highlights the cross-border harm adds international pressure on the Spanish government to act, thereby restoring fair competition within Spain itself. Their reputation as reliable, lawful operators would be restored.
* **Contact**: The Spanish national hauliers’ association is **Confederación Nacional de Transporte en Automóvil (CNTA)**. Their address is Calle Núñez de Balboa 51, 28001 Madrid, Spain. Email is typically `cinta@cinta.es`.

To use this list most effectively, you should tailor your approach: for trade bodies, propose a coalition to support the JR as an *amicus curiae* or as evidence providers. For individual large companies, present the JR as creating the necessary precedent for a targeted tort claim. For unions and investors, frame the outcome as systemic risk mitigation.

For the most current and specific contact details, especially for individual departments within these organizations, I recommend visiting their official websites directly. Would you like me to elaborate on the strategic approach for engaging with any of these specific beneficiary groups?

JRS

Based on my review of the case file and the drafted Freedom of Information requests, I will act as instructed to provide a strategic legal analysis. The core issue is Spain’s failure to transpose and enforce the EU Mobility Package, creating an enforcement vacuum that harms UK hauliers through unfair competition.

### 1. Judicial Review Opportunities & Causes of Action

**Yes, significant and non-time-barred Judicial Review (JR) opportunities exist.** The key is that the harmful “DORCAP” (Decision/Omission/Regulation/Conduct/Action/Policy) is not a single historical event but a **continuing state of affairs**.

* **The Primary DORCAP**: The continuing omission by the Spanish Ministry of Transport to fully implement and enforce the EU Mobility Package (Regulations 2020/1055, 1056, 1057). This is an ongoing failure to comply with EU law.
* **Secondary UK DORCAPs**: The parallel omissions by UK bodies (the Department for Transport and the Driver and Vehicle Standards Agency) in failing to assess, mitigate, or compensate for the market distortion caused by Spain’s failure. This is a failure in their domestic regulatory duties.

These are **not time-barred**. The three-month JR time limit in the UK runs from the date of the *decision*. Here, the “decision” is a **continuing policy of inaction or inadequate action**. Each day the enforcement gap persists, the DORCAP is renewed. A JR can challenge the *current* state of affairs.

Your suggested tactic of “writing a letter to the tortfeasor… to trick it into making a fresh decision” is astute and is, in fact, a standard litigation strategy. Formally requesting the DfT or DVSA to take specific mitigating actions (e.g., to launch an investigation or implement interim inspection protocols) would likely yield a refusal or a bland, inadequate response. This **fresh decision/refusal would itself be a new, judicially reviewable act**, resetting the time limit and providing clean grounds for challenge.

**Legal Causes of Action (COAs):**

* **For Judicial Review**:
1. **Illegality/Ultra Vires**: The UK authorities may be acting *ultra vires* by interpreting their post-Brexit statutory duties in a way that fails to secure a “level playing field” for UK businesses, contrary to the purpose of relevant transport and competition legislation.
2. **Irrationality (Wednesbury Unreasonableness)**: A policy that knowingly allows UK hauliers to suffer severe financial harm (€200m annually) from an identifiable regulatory asymmetry, without taking reasonable steps to counter it, is arguably so unreasonable that no reasonable authority would have adopted it.
3. **Procedural Impropriety & Failure to Consult**: The FOI requests seek evidence that the DfT failed to conduct a proper Impact Assessment. A failure to gather relevant information before maintaining a policy is a procedural flaw.

* **For Tort** (against UK authorities):
1. **Misfeasance in Public Office**: This is a high bar but conceivable if evidence shows officials knew their inaction was unlawful and would likely cause harm to a class of hauliers, yet persisted.
2. **Breach of Statutory Duty**: Arguable if a specific statute imposes a duty to ensure fair competition or enforce cabotage rules, which has been breached.
3. **Negligence**: While public authorities have wide policy discretion, a failure to execute an *operational* duty (e.g., the DVSA’s duty to enforce fairly) could found a claim.

**”No Particular Victim” Standing (Locus Standi)**: Your organisation, COCOO.uk, has a strong claim for sufficient interest. The courts grant standing to representative bodies with genuine expertise and a strategic interest in the matter, especially where harm is diffuse across a sector. By formally engaging with the authorities via FOI requests and the proposed “fresh decision” letters, you further cement your status as a concerned, knowledgeable party. The “Lordhope model” of public interest standing supports this: the court looks for a petitioner with a reasonable concern, and the absence of a more directly affected individual is not a bar.

### 2. Ultra Vires & Irrational DORCAPs Analysis

Ranked by likelihood of successful challenge:

1. **DVSA’s Failure to Adapt Enforcement Protocols (Omission/Action)**: This is the most tangible and irrational DORCAP. Knowing that digital enforcement against Spanish vehicles is impossible (due to their lack of smart tachographs), the DVSA’s failure to institute a compensatory regime of *enhanced* physical inspections or targeted roadside checks is highly vulnerable. It renders their enforcement policy partly ineffective and discriminatory against compliant operators. A court is likely to find this is an unreasonable failure to exercise their core enforcement function.
2. **DfT’s Failure to Conduct a Proper Impact Assessment (Omission/Procedural Failure)**: The FOI request targets this directly. If no assessment exists, or if it glaringly ignores the scale of harm to UK hauliers, this is a serious procedural flaw. A policy that causes significant economic harm without first understanding its scale is procedurally improper and the decision-making process is thereby flawed.
3. **DfT’s Policy of Not Making Diplomatic Representations (Policy/Omission)**: While foreign policy is discretionary, a complete refusal to make any diplomatic efforts to resolve a known, costly trade distortion for a key UK industry could be argued as irrational. The ranking is lower because courts are deferential on diplomatic matters, but a total failure to act might cross the *Wednesbury* threshold.
4. **The Spanish State’s Core Failure (Omission)**: While the clearest in law (breach of EU duty), jurisdictional and practical challenges in the UK courts place it lower for a *UK-focused* JR strategy. It is, however, the foundational DORCAP that makes the others necessary.

### 3. Suspended Quashing Orders

If successful against a UK body, the court should be asked to quash the relevant *policy or decision* that led to the inadequate response. For example:

* “The DVSA’s Enforcement Strategy Document (or relevant internal instruction) for Heavy Goods Vehicles from EU Member States, insofar as it fails to include compensatory measures for verifying compliance of vehicles from jurisdictions that have not implemented EU Regulation 2020/1057.”

This order should be **suspended for 3 months**. An immediate quashing would create a legal vacuum in enforcement. The suspension period would allow the DVSA to draft and implement a new, lawful policy that includes targeted measures for vehicles from non-compliant states. The condition attached should be that the Defendant must file an affidavit with the Court and serve it on the Claimant within 8 weeks, outlining the proposed new measures.

### 4. Ongoing Harm & Injunctive Relief

**Ongoing harm** is the essence of this case: continuous financial loss to UK hauliers through unfair competition, and a continuous failure of the UK regulator to provide equitable enforcement.

A draft application for an **interim mandatory injunction** could seek to compel the DVSA, pending the outcome of the full JR, to:
* Immediately issue an operational directive to all enforcement officers to subject Spanish-registered HGVs to a higher frequency of documentary and technical roadside checks.
* Publicise this targeted approach on its website to act as a deterrent.

The grounds would be that the balance of convenience favours this step. Without it, the claimant’s members suffer irreparable financial harm daily; with it, the DVSA merely performs its existing statutory duty more intensively in one area.

### 5. Statement of Legal Principle Declaration

“It is hereby declared that the Driver and Vehicle Standards Agency, in formulating and maintaining its policy for enforcing road transport regulations against vehicles from European Union member states, acted unlawfully by failing to take into account, as a mandatory relevant consideration, the known and significant deficit in digital enforcement data arising from the non-implementation of EU Regulation 2020/1057 by the Kingdom of Spain, and by consequently failing to consider whether compensatory measures in its physical enforcement regime were necessary to ensure equitable and effective enforcement as between all operators.”

### 6. Risk Disclosure Statement Court Order

“The Defendant, the Department for Transport, shall within 28 days of this Order publish a ‘Regulatory Risk Disclosure Statement’ on the homepage of its website and in the next available edition of its Annual Report. This Statement shall clearly set out: (i) the Court’s finding that it failed to adequately assess the market distortion caused by Spain’s non-implementation of the EU Mobility Package; (ii) the financial and competitive risks this has posed to UK hauliers; and (iii) the specific steps it is now taking to monitor and mitigate this identified cross-border regulatory risk. The Statement shall remain prominently accessible for a period of not less than 12 months.”

### 7. Assessment & Publicity of Risk

The FOI requests are precisely designed to investigate this. The **likely answer is that no such formal, holistic risk assessment exists**. The DfT may have generic risk registers, but a specific assessment linking Spain’s failure to direct financial harm to UK businesses is probably absent. This failure is a powerful ground for criticism: it demonstrates a lack of due diligence and a failure to understand the consequences of its own policy (or lack thereof). Highlighting this “analytical vacuum” is central to proving irrationality.

### 8. Responsible Parties & Individual Liability

* **UK**: The **International Road Transport policy team within the DfT** and the **Enforcement Strategy team within the DVSA** are the primarily responsible units.
* **Spain**: The **Dirección General de Transporte Terrestre** within the Spanish Ministry of Transport.

The FOI requests explicitly ask about internal investigations, disciplinary proceedings, and *acciones de regreso* (state recovery actions). The case file suggests the answers to (a), (b), and (c) are **”no.”** This is a critical line of inquiry. The absence of any internal accountability powerfully supports an argument of institutional complacency and bolsters claims for misfeasance or gross negligence. It should be strongly emphasised in litigation to demonstrate the persistent and unaddressed nature of the failure.

### 9. Tort Damages & Remediation Project

* **Aggregate Tort Damages Estimate**: The case file cites annual damages of €200 million. A reasoned claim for a UK tort (e.g., against the DfT for negligent failure to mitigate) would need to quantify the *UK portion* of this harm. A conservative estimate, based on the UK’s share of the EU haulage market, could be in the range of **£30-£50 million annually**.
* **Distribution Mechanism**: Given the diffuse, sector-wide harm, traditional distribution is impossible. The remedy must be a **cy-près scheme** (as near as possible).
* **Proposed Remediation Project**: The court should order the establishment of a **”Haulage Sector Fair Competition Fund”**, administered by an independent trustee (e.g., a retired High Court judge). The fund would finance:
1. **Grant Scheme for SME Hauliers**: To subsidise the cost of installing advanced telematics and compliance technology, directly helping them compete.
2. **Industry-Wide Training & Compliance Initiative**: Funding for Logistics UK/RHA to provide free training on complex post-Brexit and EU rules, raising standards.
3. **Research & Advocacy Unit**: To monitor cross-border regulatory asymmetries and advocate for level playing fields, creating positive externalities for the entire sector.

This approach provides meaningful, collective remediation that addresses the very harm suffered—an inability to compete fairly due to a regulatory deficit—and strengthens the sector’s resilience.

17DEC

FOIS

As the solicitor for COCOO.uk, I have drafted the necessary Freedom of Information requests.

Given the cross-border nature of this case (Spanish regulatory failure causing harm to UK stakeholders), we must target the bodies responsible for policy (DfT), enforcement (DVSA), and the original breach (Spanish Ministry of Transport).

Crucial Legal Note: The Freedom of Information Act 2000 (FOIA) applies only to UK public authorities. For the Spanish Ministry, I have adapted the legal basis to the Spanish Law on Transparency (Ley 19/2013) to ensure the request is not rejected on jurisdiction grounds.

Here are your three customised letters.

1. Letter to the Department for Transport (DfT)

Target: The Policy Maker

Focus: Failure to assess the impact of Spain’s non-compliance on UK hauliers and failure to mitigate “unfair competition” risks.

Subject: Freedom of Information Request – Evidence of Ultra Vires Risk Reports & Assessments regarding the Non-Implementation of EU Mobility Package by Spain

To:

Department for Transport (DfT)

Information Rights Unit

[Address / Email]

From:

Oscar Moya, Director

Competition & Consumer Organisation Party Limited (COCOO.uk)

23 Village Way, Beckenham, Kent BR3 3NA

Email: contact@cocoo.uk

[Date]

Re: Freedom of Information Request – Evidence of Ultra Vires Risk Reports, Investigations into Officials’ Torts, Acciones de Regreso or Similar Recovery Actions Relating to the [Failure to Assess and Mitigate Risks to UK Hauliers arising from Spain’s Non-Implementation of EU Mobility Package Regulations 2020/1055, 1056, & 1057] by [The Department for Transport]

Dear Information Officer,

I am Oscar Moya, Director of Competition & Consumer Organisation Party Limited (COCOO.uk), 23 Village Way, Beckenham, Kent BR3 3NA, Companies House Registration: 15466919, EU Transparency Register: 177568392007-84.

This request is submitted under the Freedom of Information Act 2000 to gather evidence establishing tort liabilities for misfeasance, abuse of power, failure to notify or assess ultra vires risks and foreseeable harms, and reckless conduct by the regulator or public body responsible for the DORCAP (defined here as the Department’s omission to assess and mitigate the market distortion caused by Spain’s failure to implement the EU Mobility Package), which may also cause competition distortions. It seeks to confirm the existence of ultra vires risk reports, any investigations into officials’ torts, and whether any recovery actions were pursued.

Please provide the following information:

Part 1: Establishing Enforcement Vacuum and Locus Standi

  1. Provide a breakdown of complaints, representations, or correspondence received from UK trade bodies (e.g., RHA, Logistics UK) regarding “unfair competition,” “wage dumping,” or “regulatory asymmetry” caused by Spanish or Eastern European operators exploiting the delay in Spain’s Mobility Package implementation in the last 3 years.

  2. Disclose any Impact Assessment (IA) or internal economic briefing note estimating the financial loss to UK hauliers due to the lack of “Smart Tachograph” enforcement reciprocity with Spain.

  3. Confirm if the DfT has commenced any formal dispute resolution or diplomatic representations to the European Commission or the Spanish Government regarding this specific non-compliance in the last 3 years.

Part 2: Ultra Vires Risk Reports and Foreseeable Harms

4. Confirm the existence of any risk register entry or board paper that flagged “failure to enforce reciprocal standards” or “risk of litigation by UK hauliers” as a medium or high risk.

5. Disclose the risk appetite statement regarding post-Brexit regulatory divergence and enforcement reciprocity.

6. State the number of months any risk related to “International Road Transport Market Distortion” has been reported as red (off track) or equivalent high-risk status.

Part 3: Investigations into Officials’ Torts and Recovery Actions

7. Confirm if any internal investigation has been initiated to determine if officials responsible for International Road Transport policy acted with misfeasance or gross negligence in failing to warn UK operators of the enforcement gap in Spain.

8. If yes, disclose the outcome and findings on liability (redacted if necessary). If no, disclose the recorded rationale for not initiating one.

Part 4: Systemic Aspects

9. List titles of internal audit reports commissioned in the last 2 years relevant to International Road Transport enforcement or Cross-border haulage market monitoring.

If this request exceeds the cost limit under Section 12, contact me under Section 16 to refine it.

Yours sincerely,

Oscar Moya

Director, COCOO.uk

2. Letter to the Driver and Vehicle Standards Agency (DVSA)

Target: The Enforcer

Focus: Operational failure to detect or penalize non-compliant operators due to the “blind spot” created by the lack of smart tachograph data.

Subject: Freedom of Information Request – Evidence of Enforcement Gaps & Risk Assessments regarding Non-Compliant EU Operators

To:

Driver and Vehicle Standards Agency (DVSA)

Freedom of Information Team

[Address / Email]

From:

Oscar Moya, Director, COCOO.uk

[Address / Email as above]

[Date]

Re: Freedom of Information Request – Evidence of Ultra Vires Risk Reports, Investigations into Officials’ Torts, Acciones de Regreso or Similar Recovery Actions Relating to the [Operational Failure to Detect and Sanction Cabotage and Posting Violations by Operators from Non-Compliant Jurisdictions (specifically Spain)] by [The DVSA]

Dear Information Officer,

[Standard Intro Paragraph as above]

This request is submitted under the Freedom of Information Act 2000… [Standard Legal Text as above].

Part 1: Establishing Enforcement Vacuum and Locus Standi

  1. Provide data on the number of roadside checks conducted on Spanish-registered HGVs in the last 3 years where “lack of smart tachograph version 2” was noted or cited.

  2. Disclose any internal memos or operational instructions regarding the “impossibility of verifying cabotage operations” for vehicles from member states (like Spain) that have failed to implement the relevant EU Mobility Package databases.

  3. Confirm if any judicial review or formal legal challenges have been brought against the DVSA by UK hauliers regarding “unequal enforcement” or “discrimination” in the last 3 years.

Part 2: Ultra Vires Risk Reports and Foreseeable Harms

4. Confirm the existence of any risk register entry flagging “inability to enforce cabotage rules due to foreign data gaps” as a medium or high risk.

5. Disclose the risk owner and title for “Foreign HGV Compliance”.

6. Confirm if an impact assessment exists for the decision not to increase physical inspections to compensate for the lack of digital data from Spanish operators.

Part 3: Investigations into Officials’ Torts and Recovery Actions

7. Confirm if any internal investigation has been initiated to determine if officials responsible for Enforcement Strategy acted with recklessness in allowing non-compliant vehicles to circulate freely.

8. If the DVSA has paid any compensation or settlements to UK operators for failure to enforce (e.g., unfair competition claims), confirm if recovery was sought from responsible officials.

Part 4: Systemic Aspects

9. Provide the percentage of roadside enforcement staff trained specifically on Regulation (EU) 2020/1054 (Posting of Drivers) detection without digital references.

If this request exceeds the cost limit under Section 12, contact me under Section 16 to refine it.

Yours sincerely,

Oscar Moya

Director, COCOO.uk

3. Letter to the Ministerio de Transportes (Spain)

Target: The Originator of the Breach

Focus: The administrative silence and failure to transpose laws.

Legal Adaptation: Changed to Spanish Transparency Law to ensure validity.

Subject: Solicitud de acceso a la información pública – Evidencia de Riesgos Ultra Vires y Responsabilidad Patrimonial / Request for Public Information – Evidence of Ultra Vires Risks

To:

Ministerio de Transportes y Movilidad Sostenible

Unidad de Información de Transparencia (UIT)

Paseo de la Castellana, 67, 28071 Madrid

From:

Oscar Moya, Director, COCOO.uk

[Address / Email as above]

[Date]

Ref: Solicitud bajo la Ley 19/2013 de Transparencia / Request under Law 19/2013 on Transparency – Evidence regarding [The Failure to Transpose and Enforce EU Regulations 2020/1055, 1056, 1057 (The Mobility Package)] by [The Ministry of Transport]

Estimados Señores / Dear Sirs,

I am Oscar Moya, Director of COCOO.uk. [Standard Intro].

This request is submitted under Ley 19/2013, de 9 de diciembre, de transparencia, acceso a la información pública y buen gobierno (and broadly aligned with the principles of the UK FOIA 2000 for comparative purposes) to gather evidence establishing administrative liability (responsabilidad patrimonial) for the failure to implement the EU Mobility Package (“DORCAP”).

Part 1: Establishing Enforcement Vacuum / Establecimiento del Vacío Legal

  1. Provide a breakdown of complaints received regarding the non-implementation of the Mobility Package in the last 3 years.

  2. Disclose the “Memoria de Análisis de Impacto Normativo” (Regulatory Impact Analysis) justifying the delay in transposing Directive (EU) 2020/1057 past the February 2022 deadline.

  3. Confirm if any “Recurso Contencioso-Administrativo” has been filed against the Ministry regarding this specific inaction.

Part 2: Ultra Vires Risk Reports / Informes de Riesgos

4. Confirm the existence of any internal report or warning from the Abogacía del Estado (State Legal Service) or the Secretaría General Técnica flagging the risk of EU infringement proceedings or state liability (responsabilidad patrimonial) as “High” or “Very High”.

5. Disclose the number of months the “Transposition of Mobility Package” project has been classified as “Delayed” or “At Risk” in Ministry tracking systems.

Part 3: Investigations and Acciones de Regreso / Investigaciones y Repetición

6. Confirm if any “expediente disciplinario” (disciplinary file) has been opened against officials for the failure to meet the binding EU deadlines (2020, 2022, 2023).

7. If the State has paid any fines to the EU or compensation to private parties regarding this breach, confirm if an “Acción de Regreso” (under Art. 36 LRJSP) has been initiated against the responsible authorities to recover these funds. If not, provide the “Act of Justification” for not doing so.

Part 4: Systemic Aspects

8. List the titles of any Inspección General de Servicios reports from the last 2 years related to the efficiency of the Dirección General de Transporte Terrestre.

Yours sincerely,

Oscar Moya

Director, COCOO.uk

As the solicitor for cocoo.uk, I have reviewed the case file regarding the “Movilidad” / EU Mobility Package Non-Implementation claim.

Below is the legal analysis applying your specific instructions to the identified Causes of Action (COAs).

CASE SUMMARY

This case concerns the Kingdom of Spain’s failure to implement and enforce the EU Mobility Package (Regulations (EU) 2020/1055, 2020/1056, 2020/1057). This regulatory failure (“DORCAP”) has created an enforcement gap, allowing non-compliant transport operators (“FOIGs”) to engage in unfair competition (wage dumping, cabotage violations), causing annual damages of €200 million to UK hauliers, investors, and workers.

COA 1: STATE LIABILITY FOR BREACH OF EU LAW (Francovich / Responsabilidad Patrimonial)

Jurisdiction: Spain (primarily) or UK (arguably, for domestic effects).

Breach Dates:

  • 02 Aug 2020: Deadline for driving/rest rules and cabotage (Missed).

  • 02 Feb 2022: Deadline for driver posting rules (Missed).

  • 21 Aug 2023: Deadline for smart tachograph monitoring systems (Missed).

1/ IDENTIFY ALL PROVEN FOIGS (Findings of Infringement)

  • Infringements: The FOIGs here are the specific acts of wage suppression, illegal cabotage, and safety violations committed by non-compliant transport firms (primarily identified as Eastern European operators and Spanish shell companies) operating in Spain and the UK.

  • Evidence Source: The case file relies on Violation Tracker UK data and Companies House/SEC filings to identify these specific firms.

  • Nature of Infringement: These companies utilized the “enforcement gap” to underprice compliant UK hauliers by avoiding the costs of the Mobility Package (approx. €25m in wage suppression alone).

2/ CAUSATION BY ULTRAVIRES/UNLAWFUL DORCAP

  • The DORCAP: The Spanish Ministry of Transport’s failure to transpose and enforce the EU Mobility Package constitutes a breach of non-discretionary EU obligations (Statutory Duty). This omission is ultra vires as it ignores binding EU deadlines.

  • Causation: This regulatory vacuum directly caused the FOIGs. Without the mandated “smart tachograph” monitoring (due Aug 2023) and wage controls, the infringing companies could operate with impunity.

  • Judicial Review Status: The regulator’s inaction (the DORCAP) has not yet been successfully judicially reviewed by the state itself. The case strategy suggests challenging this via a “Challenge Discretionary Power” principle, arguing the Ministry failed to conduct necessary impact assessments before delaying implementation.

3/ STATE REDRESS & REGRESO

  • Has the State Paid? No. The case is currently in the pre-litigation / mediation phase. There is a proposal for a €5 million facilitation fee and a claim for damages, but no settlement, arbitration award, or fine has been paid to the victims (UK hauliers/investors) to date.

  • Disciplinary/Regreso: Since no compensation has been paid, there has been no “Acción de Regreso” (the state reclaiming money from responsible officials) initiated against the specific ministers or civil servants responsible for the delay.

Time Limits to Claim:

  • Spain (Responsabilidad Patrimonial): 1 Year from the date the damage becomes “real and effective” or the harmful act ceases. Strategy: Argue the breach is continuous (ongoing non-implementation), so the clock has not expired.

  • UK (Tort/Statutory Duty): 6 Years from the date damage occurred (Limitation Act 1980).

COA 2: ADMINISTRATIVE NEGLIGENCE / JUDICIAL REVIEW (Procedural Failure)

Focus: The procedural failure to conduct impact assessments prior to the decision (by omission) not to implement the regulations.

1/ IDENTIFY ALL PROVEN FOIGS

  • Infringements: The same private sector violations (FOIGs) described in COA 1 serve as the evidence of harm necessary to grant standing for the Judicial Review. The “proven” nature comes from the statistical evidence of market distortion (e.g., UK firms losing contracts to non-compliant firms).

2/ CAUSATION BY ULTRAVIRES/UNLAWFUL DORCAP

  • The DORCAP: The specific unlawful act here is the administrative silence and the failure to produce an impact assessment justifying the delay. This violates principles of good governance and transparency.

  • Judicial Review Status: The case mentions a potential Judicial Review claim in UK or Spanish courts to challenge this specific procedural failure. It appears this review has not yet been filed or concluded, hence the “Unsolicited Proposal” strategy to force the Ministry’s hand.

3/ STATE REDRESS & REGRESO

  • Has the State Paid? No.

  • Disciplinary/Regreso: No. However, if a Judicial Review finds the officials acted with “gross negligence” (culpa grave) in ignoring the EU deadlines, an administrative investigation could theoretically be triggered, leading to personal liability for the officials (though rare in practice without a prior financial ruling against the state).

Time Limits to Claim:

  • Spain (Recurso Contencioso-Administrativo): Generally 2 months from the express act, or 6 months from “administrative silence” (though jurisprudence varies on silence).

  • UK (Judicial Review): Promptly and in any event within 3 months of the grounds arising. Note: This timeframe is very tight; the “continuous breach” argument is essential here.

COA 3: UNFAIR COMPETITION (Private Law / Ancillary Claim)

Focus: Claims against the non-compliant operators themselves, facilitated by the State’s failure.

1/ IDENTIFY ALL PROVEN FOIGS

  • Infringements: Direct violations of the Unfair Competition Acts (both Spanish and UK equivalents) by the “Eastern European firms” and “Spanish shell companies”. They gained a competitive advantage through illegality (violation of laws).

2/ CAUSATION BY ULTRAVIRES/UNLAWFUL DORCAP

  • The DORCAP: The Regulator’s failure (DORCAP) did not commit the unfair competition but enabled and concealed it. The lack of the “Violation Tracker” mechanism (which the State was supposed to implement) made detection impossible for standard competitors.

  • Judicial Review: Not applicable to the private companies directly, but the defense of these companies would likely be that the State did not enforce the rules, confirming the DORCAP’s causal role.

3/ STATE REDRESS & REGRESO

  • Has the State Paid? No.

  • Disciplinary/Regreso: N/A for this COA directly.

Time Limits to Claim:

  • Spain (Unfair Competition): 1 year from the moment the action is known and the perpetrator identified, or 3 years from the completion of the act.

  • UK (Tort of Unlawful Means Conspiracy / Unfair Comp): 6 Years.

SOLICITOR’S RECOMMENDATION

The strongest route is COA 1 (State Liability), leveraging the “continuous breach” doctrine to overcome the strict 1-year Spanish limitation period. The Violation Tracker UK data is critical evidence (“FOIGs”) to prove that the State’s inaction (“DORCAP”) caused quantifiable financial loss, satisfying the Francovich conditions. Immediate filing or a formal “letter before action” is required to stop the clock on limitation periods.

Leave a Reply