residencia/boat ownership/Spain

[Shearwater]

I have Spanish residencia and have just sold a UK SSR'd sail boat for which I never had any bother from the Guardia or any other authority (in more than 6 years ). I understand that to be totally legal the residencia requires any boat I own should/ought/must be Spanish registered and, thus, I would need a Spanish VHF and Cert of Comp (both of which are beyond me despite a reasonable conversational knowledge). I now want to buy a mobo and obviously a local Spanish boat is going to be cheapest. A solution comes to mind that the new (to me) boat might be 'owned' by my UK resident son or as the sole asset of a limited not-for-profit, non-taxable dormant British company as, surely, anyone can berth a boat in another EU state and visit it once every so often (??). I can't see any other way round this conundrum....being sure I am not the only one who has faced this problem I welcome advice from others who have faced and have, hopefully, faced down this situation. Thank you in advance. If this duplicates anything previous please let me know where I can find the thread.

 

[Anonymous]

Well, there has been a huge amount of talk on the broad issue but most of it centred on the tax (IESDMT) and re-registration requirements for owners who are or are not residents.

My understanding is that once you have 'gone native' you are, effectively, native. So the rules that apply to a Spaniard now apply to you.

So the question is

"May a Spanish resident be in charge of a foreign-flagged and foreign-owned vessel, in Spanish waters, not for hire or reward, without the appropriate Spanish qualifications"? May a Spanish resident be in charge of ANY vessel in Spanish waters, without the appropriate qualifications?

There has been discussion here in the past whether the full RYA Yachtmaster or Ocean Yachmaster is acceptable to qualify for the Padron de Yate without further testing. It might pay you to join the RYA and ask their legal department whether there is any agreed reciprocity. I suspect that the VHF cert might be easier since English is the International radio language....but it would presumably have to be a DSC cert. The ICC rating syllabus is vastly less than the Spanish Padron de Yate.

Another possibility might be to learn enough Spanish to pass the theoretical (not too hard, I think, I have looked at the books and papers) and then agree with the practical examiner that you have an interpreter present. That wouldn't be unreasonable especially since English is one of the official EU languages. After all, you can insist that a British Local Authority communicates in Spanish!

 

[LadyJessie]

[ QUOTE ]
A solution comes to mind that the new (to me) boat might be 'owned' by my UK resident son or as the sole asset of a limited not-for-profit, non-taxable dormant British company

[/ QUOTE ]That is usually the most simple solution in cases like these. Set up a UK Ltd company that owns the boat. There is some paperwork involved, but most accountants should be able to handle a simple task like that. Then you can fly the red duster as that is the nationality of the owner. Bob's your uncle!

 

[Anonymous]

Are you CERTAIN that a Spanish resident may sail a yacht in Spanish waters without a permit? Albeit a foreign-owned and registered one? There are also other tax implications if it it is clear that you have 100% beneficial use of the yacht.

I understand that it is different for businesses --- but even then you need to have the correct codes and the skipper must have the appropriate quals.

 

[Grehan]

more worms, more cans . . .
Of course the formal Residencia itself is no longer required in Spain.

 

[LadyJessie]

[ QUOTE ]
Are you CERTAIN that a Spanish resident may sail a yacht in Spanish waters without a permit? Albeit a foreign-owned and registered one?

[/ QUOTE ]Yes.

You seem to have misunderstood the EU rules in place since 1993. It does not matter if you are a Spanish, Polish, Swedish or a UK resident; you can sail any EU flagged yacht in any EU waters.

There were some more limiting provisions in place in many countries before 1993, but that is now not more valid. The EU common market was introduced in 1993 and it is now growing larger than ever!

 

[Anonymous]

[ QUOTE ]

You seem to have misunderstood the EU rules in place since 1993. It does not matter if you are a Spanish, Polish, Swedish or a UK resident; you can sail any EU flagged yacht in any EU waters.

[/ QUOTE ]Without a permit?

 

[Tranona]

Once again Lady Jessie you are displaying your ignorance by making sweeping statements that are incorrect. Ships registration requirements are nothing to do with EU law, but international maritime law. A Coastal State can impose any restrictions it likes on vessels operating in its waters with the exception of what is expected under the 1989 UN Convention on the Law of the Sea. This does indeed allow vessels sailing under a foreign flag (innocent) free passage without complying with local registration requirements under the legal principle of "comity". However this is nothing to do with EU freedom of movement for EU citizens as it applies to all countries that are signatories to the convention.

An individual state, whether within the EU or not is perfectly entitled to set its own rules for registration and determine who can skipper a yacht or not and under what conditions. Different registration requirements exist throughout the EU.

So do not mislead people into thinking that they can do things that they can't. It is true that anybody can skipper a UK flagged vessel in Spanish waters under the UN convention, but that is because the UK does not place any restrictions on who can skipper a yacht. On the other hand you have to hold a Spanish licence (following a test) or be exempt from the test, to skipper a Spanish registered yacht.

So for the OP, he will be able to skipper a UK owned boat if he does not own it. However, as you will see from the long thread on the subject, if he is a Spanish resident and is the owner of the boat operating in Spain it has to be registered in Spain and he will have to take the Spanish test. It seems that although this law is not exactly clear and is patchily implemented it is there. He cannot get round it by registering in the UK as he no longer qualifies because he is not resident in the UK (see the MCA site for details of who can register a yacht in the UK). However, rather like the Spanish law, this one is poorly enforced and people do maintain UK registration to which they are not strictly entitled.

There is nothing magic or clever about the basics of maritime law as it affects yachts and clear guidance is available in plain English from the RYA. There are no hidden little nasties - only variability of enforcement in some states from either ignorance or lack of interest. Again the RYA reports on these issues as they arise.

 

[neutronstar]

I hope it is in order to quote Tristan Jones at this stage ?

He wrote in his last book (by memory) :

"Officials are in place for the sole purpose of delaying and opposing every action that a free minded sailor attempts"

My apologies for the re-wording but I don't have the book to hand.

Tranona said as much "A Coastal State can impose any restrictions it likes on vessels operating in its waters" forget the excptions, they will do what they bloody well feel like on occasions.

 

[JamesFrance]

Maybe this would be worth a read, I cannot comment on how accurate the information is though:

http://www.spainvia.com/boats.htm

 

[Wansworth]

I to am a Spanish resident now without an id card but still have the nif number,As such I need to have a valid PER certficate to navigate.I can buy a Spanish reg boat and sail to my hearts content IF I buy a non Spanish boat I have to put it under Spanish flag which in volves the usual paper chase ......

 

[jimbaerselman]

I think that document was written around 2002. It has been updated at least twice since then, since 'wealth tax' is no longer an issue, and the link between the requirement to register a boat, and pay a registration charge (matriculation) has been more clearly stated.

 

[Anonymous]

[ QUOTE ]
since 'wealth tax' is no longer an issue

[/ QUOTE ]Isn't it? I thought that once you are (tax) resident in Spain then you are eligible for all the little treats that Tributaria brings to the party? In most cases, by default, if you are 183 days in Spain in a single calendar year, you are (tax) resident.

Just to give ourselves something interesting to talk about over the weekend, I wonder how many people realise that should they (lets say a couple) stay more than 183 days in France in one calendar year and one of you dies, then French inheritance law kicks in, and your kids get the lions' share of your estate -- regardless of any will.

 

[Grehan]

I think the Wealth Tax has been rescinded.

 

[Anonymous]

[ QUOTE ]
I think the Wealth Tax has been rescinded.

[/ QUOTE ]I didn't know that. A bit late, now that all the wealth has been rescinded /forums/images/graemlins/wink.gif

 

[LadyJessie]

[ QUOTE ]
Once again Lady Jessie you are displaying your ignorance by making sweeping statements that are incorrect. Ships registration requirements are nothing to do with EU law, but international maritime law. A Coastal State can impose any restrictions it likes on vessels operating in its waters with the exception of what is expected under the 1989 UN Convention on the Law of the Sea......An individual state, whether within the EU or not is perfectly entitled to set its own rules for registration and determine who can skipper a yacht or not and under what conditions. Different registration requirements exist throughout the EU.

[/ QUOTE ]I was originally not going to respond to this post. Personal attacks exposes the weakness of ones arguments and stands on their own. But then I was reminded that this is supposed to be a public service thread and having your views stand uncorrected would diminish the value of the thread.

What you refer to in your response is an issue called 'nationality discrimination'. It is one of the basic rules in the Rome Treaty and one of the priority issues (if indeed not the most important issue) of the European Court of Justice. You are only partly correct in your remarks that EU states can set their own rules of maritime operations, BUT they can only do that within the framework of European law, which has precedence. If you look at the case law of the Euopean Court of Justice, link EurLex and search on 'nationality' you will find an abundance of these cases. Remarkably, when I did this search the case C-94/08 came up first in a hit list of 271. It deals specifically with the issue you have raised, I will spare the readers the suspense and cut straight to the bottom line: the European Court of Justice does not agree with you. Now, knowing your inputs Tranona/Lemain, you will probably argue that the Court is wrong and you are right. I will not enter into that argument, I think the facts are pretty clear.

Now in summary, what does this mean for the Spanish boater and their qualifications? It means that you are allowed to sail any EU flagged yacht with any EU skippers certificate. As the case laws referenced above makes clear; for any EU country to impose their own exclusive rules, they would have to argue that there are very special 'national interests' that necesitates those special provisions. I don't think that reasoning would have a snowballs chance.... to stand in the European Court of Justice, given their volume of very clear rulings in these cases. Expressed in different terms; the worst case that can happen to you is that some ignorant Spanish Officer that has not been keeping up do date will challenge you and you have to go to court. That is probably still a lot easier for you than to get a Spanish certificate.

BTW, I am putting my money where my mouth is on this issue. I have a skipper's certificate that does not match the flag on my boat, although both are EU. Over a ten year period, I have been checked three times in three different countries. Nobody made any problems with this issue.

 

[JamesFrance]

Hi LadyJessie,

Good to see you doing some research, but I do not follow your interpretation of the judgement in that case which they sum up as follows:

Operative part of the judgment
The Court:
1. Declares that in requiring in its legislation Spanish nationality for
persons occupying the posts of ship's captain and chief mate of all
merchant ships flying the Spanish flag other than merchant ships
with a gross tonnage less than 100 GT, which carry cargo or fewer
than 100 passengers and operate exclusively between ports or
points situated in areas in which the Kingdom of Spain has sovereignty,
sovereign rights or jurisdiction, the Kingdom of Spain has
failed to fulfil its obligations under Community law and, in particular,
under Article 39 EC;
2. Orders the Kingdom of Spain to pay the costs.

 

[LadyJessie]

Which part of:[ QUOTE ]
the Kingdom of Spain has failed to fulfil its obligations under Community law and, in particular, under Article 39 EC;

[/ QUOTE ]don't you understand?

I do understand that it is difficult to read legalese so please let me help you.

 

[Shearwater]

Well, I'm glad I started a thread which involved a deal of interest. For what it's worth, I do know the Spanish wealth tax has been recinded. I was going to add the boat as an asset to my company at a nominal GBP1.00 value but then realised I couldn't SSR it for that reason. I shall make my UK resident son the proud owner and shall take the risk (?) of sailing it on my British cert of Comp. The contributor who suggested I take a Spanish VHF and studied for the qualifications is mistaken - translators aren't allowed in the exams; the theory paper is extraordinary long winded which requires a very large vocabularly. As an aside, I note the Spanish mandatory exam and inspection of people and boats means that just the minima are met, whilst us lucky Brits are encouraged to further our education, safety, etc with and often know much more than is required for where we sail and in what type of boat.

 

[LadyJessie]

ColinWB: I am also glad you started this thread. It gave us an opportunity to air out some old misconceptions that has been floating around for way too long without being addressed. Good work! Thank you!