Without prejudice to the subsequent development of the arguments, let me leave you with my conclusions as an introduction. These are the conclusions I personally draw from the analysis of the current regulations, so they are merely my opinion.

The main conclusion is that driving on unpaved roads with motor vehicles is generally permitted in Spain.

Driving is only prohibited in specific cases:

- Private road that explicitly indicates no access. All roads are presumed to be public unless clearly marked as private and explicitly indicating no access. Otherwise, they are considered public and freely accessible.

- Public road where driving is explicitly prohibited.

- All public roads where prohibition is explicitly and duly signposted.

Although it might surprise us, providing a simple and definitive answer to this question is not easy. However, as I mentioned in the conclusions, my opinion is that driving on unpaved roads, understood as unpaved communication routes, is permitted in Spain and is protected by the Constitution. To the question of whether I can drive my off-rad vehicle on these roads, the answer is a resounding YES.

However, as I always say, in a sentence, especially in an assertion like the one I just made, the part to the left of "but" has no value. Or does it?

Let’s delve into the "buts." This assertion is the conclusion of the legal reasoning I made from the applicable regulations. I must say, this categorical response is more of a "what should be" than a "what is." In practice, things are not always as they should be. In any case, let my conclusion serve as a starting point for establishing criteria and, if necessary, as possible defense arguments in claims against sanctions from various administrations.

Without prejudice to the fact that we may analyze my reasoning in more detail in future posts, here are some sketches of the legal arguments on which I base my opinion.

In Spain, all legislation must be based on and grounded in the Constitution. The Constitution is the basic law, the primary law, of all other laws and sets the guiding principles for other regulations. The Spanish Constitution protects the fundamental right to freely move along roads. Article 19 of our charter explicitly states:

"Spaniards have the right to freely choose their residence and to move freely throughout the national territory." Read as having the right to move freely throughout the national territory.

This is a clear and resounding stipulation. The importance and legal significance of this freedom, this individual right, have become clear in these pandemic times through various court rulings. Therefore, it is an opportune moment to analyze this right as it pertains to us: road travel.

Before analyzing the situation, it is necessary to clarify that when the term "Spaniard" is mentioned in the article, it should be understood as any person legally residing in Spain. Both European and international human rights laws recognize this same right, so the term "Spaniard" should be interpreted as any person legally residing in Spain.

We must always keep in mind that we are dealing with a fundamental right and that the interpretation of the regulations we will analyze should be inspired by this principle of freedom of movement as a fundamental right.

In any case, the first limitation on this right is the constitutional right to private property, enshrined in Article 33.1 of the Constitution, which recognizes the right to private property and inheritance.

The coexistence of these two rights brings us to the first limitation on the right to free movement, which is private property. The right to free movement must respect private property; therefore, we cannot drive on privately owned roads unless they are subject to easements of passage... But we will not delve into that topic here. Therefore, as long as a road is not private—note, the road itself, not the surrounding fields—the road is open to free movement.

Conclusion: We can drive on all roads that are not clearly and explicitly marked as prohibited due to being private property. The prohibition of passage, in my opinion, must be explicit; it is not enough to simply state "private property." If it does not explicitly state "no access," it could be understood that even though it is private property, passage is authorized. This is, of course, debatable, but in my opinion, it should be clear that access is prohibited and that the reason is that it is private property.

If we limit the right of movement to unpaved roads, we can conclude that we can drive on all roads that are not private property. Conversely, we can drive on all publicly owned roads. When we talk about driving, we mean moving along roads by any means—vehicles, animals, etc.—that we consider appropriate. The right to move, as a principle, has no nuances or limitations.

Let us now focus on what interests us: motor vehicles. We continue with the principle of freedom of movement present in the Constitution as the guiding principle of our reasoning. The concept of movement initially contains no limitations and should be understood in its broadest sense, implying our freedom to move by the means of transport we freely choose.

Thus, driving motor vehicles throughout the national territory is, as a fundamental right, protected by the Constitution.

In the presentation below, I will not address the division of responsibilities among different administrations. That topic could be the subject of a future blog post. However, initially, I believe that what I present below is applicable, mutatis mutandis, to all areas of competence.

Let us analyze the specific legal situation of roads. What is a road? What should we understand as a road? When are we dealing with a road? There is currently no legal definition of what is meant by a road. The regulations frequently mention the concept of a road, but it is not explicitly defined in the current regulations.

Without being exhaustive on this issue, with the aim of centering this topic, I will outline the regulations that impact this issue of roads and driving on them.

Highway Law (in spanish "Ley de Carreteras")

To frame this topic of what should be understood as roads, I believe we should refer to the Highway Law, Law 37/2015, of September 29.

Without losing sight of the constitutional right to freedom of movement, I should point out, as a legal anecdote, that the first article of this Law, when determining its purpose, mentions first “Facilitating the exercise of the rights of free movement of natural and legal persons." Thus, a concrete guiding principle of the Law itself is to guarantee and facilitate the fundamental right of movement.

The Law, in its second article, defines a road as public domain and use roads designed, built, and signposted primarily for the movement of motor vehicles. Its third section classifies roads based on their characteristics, establishing a catch-all "conventional roads" as those roads not classified among the previous ones. It is important to note here that being paved is not a requirement to be considered a road.

Furthermore, section 6 of the Law negatively defines its scope by excluding three types of roads: service roads and then two more types, forest roads and livestock trails, but only if they have been classified as such by their specific legislation. Therefore, forest roads and livestock trails must have been expressly classified; if not, they will be considered conventional roads.

The question at this point would be: Is a road a conventional road for the purposes of the Highway Law? My opinion is yes, and for two reasons:

- A first positive criterion: a public domain and use road designed, built, and signposted primarily for the movement of motor vehicles. If the road was designed for motor vehicle movement, it falls under the Highway Law and, by default, is a conventional road.

The Law itself defines an automobile as a motor vehicle that travels without rails and without connection to an external energy source. This definition excludes mopeds, vehicles for disabled persons, and tractors and other agricultural machinery. At this point, we could discuss whether a road was designed primarily for motor vehicles, but remember, we do not have a definition of a road, and from the perspective of the regulations, if roads are not conventional roads and are not service roads or forest roads or livestock trails, what are they? Do they not exist? Furthermore, if the Law expressly excludes a type of road from its scope, as we will see in the following paragraph, it implies that the rest are included.

- Another negative criterion: the exclusion from the scope of the Law. Section 6 excludes roads that are not the subject of the Highway Law. If, to exclude from its scope, the Law mentions a specific type of road, such as service roads, all roads that are not service roads are considered roads for the purposes of the Law.

Therefore, my thesis, from the perspective of the Highway Law, is that public roads are conventional roads from a legal classification standpoint.

From this point, and based on the Highway Law, we can draw the following conclusions:

Public roads (unpaved) are conventional roads unless they are classified as service roads, forest roads, or livestock trails by specific legislation.

Traffic Law (in spanish "Ley de Tráfico")

Is the traffic law applicable to public roads, conventional roads? The answer is yes. The Law explicitly states that it applies to conventional roads.

What does this imply in our case? It implies that we must consider what this Law states regarding traffic. Focusing on restrictions and limitations on traffic, we must keep in mind what this Law stipulates.

In this regard, we find that Article 18 of the Law states that the competent authority (we will need to study which authority is competent) may prohibit traffic completely or partially, either generally or specifically, for certain vehicles, and even close certain roads. However, the reasons for doing so are limited and must be justified by these specific reasons.

Therefore, the traffic law only allows the restriction of road use for two reasons:

- Safety reasons.

- Environmental reasons.

In principle, therefore, there should be no prohibition on circulation for any reason other than these two. Thus, from the perspective of traffic law, reasons seen in municipal or regional regulations, such as disturbance to neighbors, noise, or any other different reasons, would not be legal.

Focusing on the case of absolute prohibitions and closures of certain unpaved roads for these reasons, I would like to make two comments:

- Generic closures or prohibitions are not permitted. They must be specific and individualized, road by road. Thus, a general closure of roads is not allowed. Each road closure must have its own specific and justified safety or environmental motivation and justification, and cannot be based on generic or abstract criteria.

- Considering "environmental reasons," I wonder if it is constitutional for a regular law, an not for an "Ley Orgánica" ( In Spain una "Ley Organica" are those that regulate fundamental rights and public freedoms..., and require a broader majority of votes in favor than a regular law."), to enable lower-ranking rules to establish limitations or prohibitions on a fundamental right and freedom, such as circulation. I´ll leave it at that.

At this point, I´m not going to assess what type of motivation and scope the administrative act or regulation determining the prohibition of circulation should have, especially in cases of absolute prohibition and road closures for environmental reasons, but it would be an interesting topic to analyze in depth.

Road Signage

Continuing with the Traffic Law, applicable to roads as conventional roads, it should be noted that prohibitions must comply with the signage regulations contained in the traffic law, with the signage standards duly approved by regulations.

In this case, I wonder what happens when driving on roads and encountering prohibition signs that are not the mandatory traffic signs. For example, what if I come across a simple sign with a drawing of a car, motorcycle, or what is supposed to be a crossed-out quad? In short, a sign that does not meet the mandatory signage stipulations of the Traffic Law.

Article 53 of the Traffic Law in its first paragraph establishes that "users of the roads are obliged to obey the traffic signs that establish an obligation or a prohibition and to adapt their behavior to the message of the rest of the regulatory signs." My conclusion at this point is that if the signs cannot be classified as traffic signs according to regulations, they do not have the legal capacity to enforce or prohibit. Moreover, especially when discussing a fundamental right of individuals, such as the right to free movement.

Conclusion regarding the Traffic Law.

The circulation on roads that have the characteristic of conventional roads according to the Road Law and the Traffic Law is free and permitted. The exception is if it is expressly prohibited and correctly signposted. Nonetheless, even this prohibition could be considered void in a possible appeal or claim.

Additionally, as users, we must consider that any road not marked as private is public, and any public road is considered a conventional road, thus allowing free access and circulation, unless there is a regulationally signposted prohibition or limitation of circulation.

It would be left, if deemed interesting, for later entries in this blog, to analyze the regulations on forest roads and livestock paths, as well as the impact of the Forestry Laws, or Mountain Laws, on the limitations and prohibitions of motor vehicle circulation on these roads. But I will advance my conclusion that these roads must be clearly marked as forest roads or livestock paths, and any prohibitions or limitations on circulation must be correctly signposted. As with roads, in the absence of regulatory signage, it must be presumed that the road is public, and therefore, circulation is free.