Breakthrough on Spanish charter licensing

On 21 March, 2023, the Regulation on the Maritime Navigation Planning was published in the Spanish Official State Gazette, introducing important measures, among which the following should be highlighted:

1) Simplified ‘charter licence’
A simplified clearance regime has been established to assist charter yachts operating in Spain. The procedure requires the presentation of a simple affidavit of responsibility, leaving behind the obsolete process of obtaining prior and express authorisation (charter licence) that largely collapsed harbour master offices during summer periods and which put at risk obtaining the charter licence prior to the dates committed to by ship owners, forcing vessels to wait physically in port until the licence was granted.

Under this simplified clearance, yachts carrying out a commercial activity and/or with a professional crew will be allowed to start their activity from the moment they submit the affidavit of responsibility, together with a declaration from the captain and the crew list. However, EU or third-country-flagged yachts applying for their charter licence for the first time will have to obtain it according to the previous ‘charter licence’ procedure, so that its data are recorded in the maritime administration’s computer systems.

Logically, the above means that the yacht must have all the documents required by current regulations to obtain the charter licence (for example valid certificates, crew list, certificates and endorsements, insurance, etc.), in case they have to be presented at the request of the authorities. Likewise, any modification of the aforementioned documents will have to be amended before the harbour master’s office by presenting a new responsible declaration.

According to the approved regulation, the entry into force of the affidavit of responsibility will take place from 1 July, 2024, to allow the necessary updating of computer systems. The Spanish Yachting Association (ANEN), of which I am both a legal and tax advisor, has actively participated as an interlocutor for the industry, and we know that the Spanish authorities will make every effort to ensure that this system will be applied in summer 2023.

Yachts with a previous charter licence in force can apply for this new system as soon as their charter licence expires, if the new simplified system is already in operation.

2) Repeal of the Order of 4 December, 1985
Another important measure is the express repeal of the Order of 4 December, 1985, on yacht chartering, which, apart from being tacitly repealed to a large extent by various subsequent regulations of equal or greater rank, had been completely void of content

The repeal of this regulation is important, in my view, because of two fundamental details:

a) Firstly, because it will allow the chartering of non-EU flagged vessels under 14 metres in length, an aspect that the rule had expressly prohibited; and

b) Secondly, because this order has led to binding rulings of the Spanish Directorate General of Taxes (DGT), for example ruling V2267-2, which, based on its obsolete provisions, dogmatically concluded that for the development of charter activity in Spain yacht-owning companies must prove their residence in Spain (sic) and hold a so-called “establishment” in Spain (that is a place from which the charter activity is carried out in whole or in part), giving rise to problems in relation to Spanish Matriculation Tax.

In theory, the DGT could still stick to the literal wording of the repealed rule, although it is clearly absurd in relation to the reality of yacht charter, at least as far as large yachts are concerned,

Undoubtedly, the above changes are a response to the new needs of the market, thus helping Spain to achieve a higher level of competitiveness in the charter sector in Europe, as this concept also covers the efficiency or absence of red tape that does not exist in other competing countries in our environment.