Spanish REA – Registro de Empresas Acreditadas
In the Construction Sector, there are currently discrepancies between Spanish legislation and Council Directive 89/391/EEC of June 12, 1989, concerning the implementation of measures to promote the improvement of workers’ safety and health at work (Framework Directive).
Some foreign companies in Spain are encountering issues with the Registro de Empresas Acreditadas (REA) when it comes to validating their accident prevention services in the field of occupational risk prevention.
In some REA registers, there is a criterion under which foreign companies that post workers to Spain as part of a transnational service provision in the construction sector must appoint an external prevention service, deeming an internal prevention service (i.e., the one organized by the employer itself) as invalid.
This criterion stems from Article 11 of the Spanish Regulation on Prevention Services, which establishes the following:
The employer can personally carry out the prevention activity, except for the health surveillance of workers, when the following circumstances apply: b) The activities carried out in the company are not listed in Annex I.
Annex I lists a series of activities where additional risks compared to ordinary ones are presumed. These activities include the construction sector: h) Activities in construction sites, excavations, earthworks, and tunnels, with the risk of falling from heights or burial.
Spanish legislation in this area does not align with the provisions of Directive 89/391/EEC, as it obliges construction companies to appoint an external prevention service, whereas this system is subsidiary. In fact, the Directive favors or encourages the opposite, i.e., the creation of internal prevention services.
Indeed, the Court of Justice (EU) (Fifth Chamber), in its ruling of 22-05-2003, Case No. C-441/2001, clarified the subsidiarity of external prevention services, stating that Directive 89/391/EEC clearly establishes a priority order regarding the organization of protection and risk prevention activities within the company. Only when internal expertise is insufficient should the employer resort to external expertise.
In Spain, it is assumed that an external prevention service is always more reliable and professional than an internal company-organized prevention service, which seems to contradict the directive and its own experience.
In fact, external prevention services are organized in such a way that they create the illusion of having complied with the law, a misjudgment, as the external service is limited to creating the foundations and providing advice on prevention activities and risk assessments. Ultimately, it is the employer who must implement the system and perform daily monitoring.
Faced with this problem, when an Italian construction company manages workplace risk prevention through its own employer, it is advisable to appoint a local prevention service in Spain for the specific project, an option that is not as expensive as one might think.
This reasoning does not apply to the installation of machinery and equipment in Spain, as it is not a construction sector activity, and the employer is allowed to delegate risk prevention responsibilities within the company.
