Posting of workers to Spain

Spain. Registro de Empresas Acreditadas - REA.

Distortions between Council Directive 89/391/EEC of 12 June 1989 on the introduction of measures to encourage improvements in the safety and health of workers at work (Framework Directive) and Spanish legislation.

Piero Viganego Clavel. Lawyer.

Some foreign companies in Spain are encountering problems with the Registro de Empresas Acreditadas - REA when it comes to validating their own prevention services in the field of occupational risk prevention.

Some of this regional registries have adopted the criterion whereby foreign companies that post workers to Spain as part of a transnational provision of services for the development of activities in the construction sector, must appoint an external prevention service, as the option of their own prevention service, organised by the employer himself, not being valid.

This criterion derives from Article 11 of the Prevention Services Regulations, which states the following:

The employer may personally carry out the prevention activity, with the exception of activities relating to the health surveillance of workers when the following circumstances concur:

  b) That the activities carried out in the company are not included in Annex I.

This Annex I lists a series of activities in which the concurrence of risks additional to the ordinary ones can be presumed. These activities include the construction sector.

h) Activities on construction sites, excavation, earthworks and tunnels, with the risk of falling from a height or being buried.

The Spanish legislation in this area differs from the provisions of Directive 89/391/EEC, because it obliges undertakings in the construction sector to appoint an external prevention service, when this is subsidiary. In fact, the Directive favours or encourages precisely the opposite, i.e. the setting up of in-house prevention services.

Indeed, the Court of Justice (EU) (Fifth Section), in its ruling of 22-05-2003, no. C-441/2001, made clear the subsidiarity of the external prevention service, indicating that Directive 89/391/EEC clearly establishes an order of priority with regard to the organisation of protection and prevention of occupational risks within the company. It is only when in-house skills are insufficient that the employer must call on outside skills.

In Spain, the assumption is that an external prevention service will always be more reliable and professional than a prevention service organised within the company, something which the Directive seems to contradict and probably experience also contradicts.

Indeed, in certain cases, I have seen how certain external prevention services fulfil their role vis-à-vis the employer, generating in the latter the confidence that they have already complied with the law, which is a mistaken assessment, since the external service is limited to creating the bases and advising on prevention activities and risk assessment but, when it comes down to it, it is the employer who must implement the system and carry out the day-to-day monitoring.

Faced with this problem, and until the situation is clarified, the options that arise are as follows:

To lodge an appeal against the refusal of the Registro de Empresas Acreditadas - REA to carry out the registration.

Appoint a local prevention service in Spain for the specific project, an option that is not as expensive as one might think, quite the contrary.

This second option seems the most reasonable, but it should be considered before sending the client the estimate for the work, as otherwise the contracting of this external prevention service will inevitably contribute to reduce the profit margin of the project.