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The law 31/1995 of 8 November, de Prevención de Riesgos Laborales, has, in its article 31.5, to be able to act as prevention services, specialized institutions should be, subject to accreditation by the labour authority, it will be unique and valid throughout the Spanish territory, by checking that meet the requirements established by law and prior approval from the health authority in terms of aspects of health.
Also the law 20 / 2013, of 9 of December, of warranty of the unit of market, in its chapter V, «principle of efficiency in all the territory national», establishes that any operator legally established may exercise it activity economic without fit demand you new authorizations or procedures additional of others authorities competent different. This law provides in its article 20.1, which will be fully effective in all the national territory, without which the economic operator perform any additional processing or meet new requirements, all means of intervention of the competent authorities which allow access to an economic activity or pursuit, or prove compliance with certain qualities, qualifications or circumstances. The law says that, in particular, will have full effectiveness in all the territory national, without can demand is to the operator economic the compliance of new requirements, them authorizations, licenses, ratings and qualifications professional obtained of an authority competent for the access or the exercise of an activity, for the production or the put in the market of a well, product or service.
This principle of effectiveness is not, however, applicable to actions related to the facilities or physical infrastructure. So it sets the article 20.4 of the same law that, this however, determines that when the operator is legally established in another place of the territory, the authorizations or statements responsible not may contemplate requirements that not are linked specifically to the installation or infrastructure.
Finally, it should be noted that the guarantee of the unity of market law provides that within the period of six months from its entry into force shall be the adaptation of regulations with legal and regulatory provisions in the same range.
Evaluated the Real Decree 39 / 1997, of 17 of January, by which is approves the regulation of them services of prevention, is has identified that, due to distortions in the interpretation and application of this standard, by different communities autonomous is is demanding to them services of prevention requirements additional that, in the practice, involve new authorizations incompatible both with the law of prevention of risks labour as with the law of warranty of the unit of market. Therefore making it a spot in the Royal Decree above mentioned in order to clarify the requirements and the requirements for the activity of prevention services, as well as the validity of the authorizations throughout the national territory, modifications so that met the principles laid down in the above-mentioned laws and not generated questions that follow leading to different authorities to request new requirements not compatible with such laws. Thus, is only the modification of those aspects which, in the process of revision of the State regulations, had been detected by legal operators as contrary to the guarantee of the unity of market law.
Therefore the single article of this Royal Decree comes to the modification of Royal Decree 39/1997 of 17 January, with the following objectives: clarify that there is a single accreditation in four disciplines. The accreditation is granted a single time and all them services of prevention outside must count with them four specialties, without can grant is an accreditation partial or by specialties. So when an external prevention service is accredited by any labor authority of the autonomous communities, taking into account that currently you must obtain simultaneously the four specialties, you won't have to pass an accreditation process in any other place of the national territory, subject to obtaining the relevant sanitary authorizations as regards the opening of health centres.
Specify that resources that must have the external prevention service are linked to their activity agreed and considered this globally throughout the national territory.
Simplify the requirements for to prove is as service of prevention alien and the own procedure of accreditation.
Ensure that all the labor authorities will know changes in prevention services data non- and not only the authority credited.
Foster the streamlining of the process of exchange of data between administrations public through it application computer SERPA, so its use and assumption as record determine the compliance of them obligations of communication established in the normative, without prejudice of them performances that can perform them authorities labour for check the veracity of them data releases.
Delete the administrative procedure for revocation partial, based on the principle of unity of market which determines that the quantification of the workers and resources must consider globally, without the territorial area - in the sense of administrative geographical division may be the decisive criterion in the matter. So the revocation of accreditation shall occur provided that, indeed, the inadequacy of resources is determined globally, taking Spain as a unit of computation, regardless of autonomous regions or provinces.
Finally, article 11 is modified to adapt their content amended in article 30.5 of law 31/1995 of 8 November, by law 14/2013, September 27, in support of entrepreneurs and its internationalization.
The first final provision is jurisdictional title. The disposal end second sets the habilitation for the development regulatory. The third final provision refers to the one stop shop. Finally, disposal fourth notes the entry into force following the publication in the «Official Gazette».
This Royal Decree is issued in accordance with article 6 of the law 31/1995 of 8 November, and in its preparation have been consulted organizations business and trade union representative and heard the National Commission of safety and health at work.
By virtue, on the proposal of the Minister of employment and Social Security, with the prior approval of the Minister of finance and public administration, in accordance with the Council of State and after deliberation by the Council of Ministers at its meeting of October 9, 2015, HAVE unique article. Modification of Royal Decree 39/1997 of 17 January, which approves the regulation of the prevention services.
The Royal Decree 39/1997, of 17 January, which approves the regulation of the prevention services, is to be re-worded as follows: one. The letter to) article 11(1) is worded as follows: «a) concerned company of up to ten workers; or, in the case of company which occupy up to twenty-five workers, has a single work center'.
Two. Article 18 is worded as follows: «article 18. Human and material resources of specialized entities that act as non-prevention services.
1. them entities specialized accredited as services of prevention outside must count with them facilities and them resources materials and human that les allow develop properly it activity preventive that have concerted, taking in has the type, extension and frequency of them services preventive that have of pay, the type of activity developed by them workers of them companies concerted and the location and size of them centers of work in which such provision has of develop is According to what is established in rules for the development of this Royal Decree.
(2. in all case, these entities must: to) count with them specialties or disciplines preventive of Medicine of the work, safety in the work, hygiene industrial, and ergonomics and psychology applied.
(b) have as minimum of a technical that count with the qualification required for the performance of them functions of level upper, in accordance with it established in the chapter VI, by each an of them specialties or disciplines preventive indicated in the paragraph previous, except in the case of the specialty of Medicine of the work that will require count, unless , with a doctor specializing in occupational medicine or diploma in medicine company and an ATS/DUE from company. They must also have the necessary personnel who have the training required to develop the basic and intermediate functions provided for in chapter VI, on the basis of the characteristics of the companies covered by the service.
Experts in the mentioned specialties will act in a coordinated manner, in particular in relation to the functions relating to the preventive design of posts work, the identification and assessment of risks, prevention plans and training plans.
(c) provide for the development of the concerted activities of the facilities and Instrumentation needed to perform tests, surveys, measurements, analysis and assessments common in the practice of the above specialties, as well as for the development of basic training and outreach activities, in the terms that determine rules for the development of this Royal Decree.
«3. without prejudice of it required coordination indicated in the paragraph 2 of this article, it activity health will be for the development of its function within the service of prevention with the structure and media appropriate to its nature specific and the confidentiality of them data medical personal.»
3. Article 23 is drafted as follows: «article 23. Application for accreditation.
(Them entities specialized that intend to be accredited as services of prevention must formulate request before the authority labor competent of the place in where lie their facilities main, in which is make recorded them following ends: to) name or denomination social, number of identification fiscal and code of has of quote to it security Social.
(b) description of the preventive activity to develop.
(c) forecast the sector or sectors in which to act, as well as the number of companies and volume of workers that will be addressed and material resources provided for this purpose.
(d) forecast staffing levels for the performance of preventive, duly substantiated, activity that should be effective at the time in which the entity begins to provide services, and with an indication of their professional skill and dedication.
(e) identification of installations, the media instruments and their respective location, both which are property of the entity as those which may have for any other title.
(f) commitment to having underwritten an insurance policy or equivalent financial security covering his liability for a minimum amount of 1.841.000 euros, effective at the time in which the entity begins to provide services, without that the cited amount constitutes the limit of liability of the service.
(g) contracts or agreements to establish, where appropriate, with other entities for activities requiring special expertise or facilities of great complexity."
Four. Article 25 is worded as follows: «article 25. Procedure of accreditation.
1 receipt of the application referred to in article 23, the labour authorities shall send a copy to the competent health authority of the place in which is situated the main facilities of the entity specialized, to the purposes of the article 31.5 of the law 31/1995 of 8 November, de Prevención de Riesgos Laborales. Such authority health shall communicate to the authority labor its decision about the approval with regard to them aspects of character health.
2. at the same time, the competent labour authority will request report by the Inspectorate of labour and Social Security and technical bodies in prevention of the autonomous community, or in the case of the cities of Ceuta and Melilla, the National Institute of safety and hygiene at work.
(3. it authority labor competent seek report prescriptive of all the communities autonomous in which the entity has identified them facilities to which is concerns the article 23.e). The competent health authority will do the same with respect to the health authorities of the autonomous communities where there are sanitary facilities in relation to the approval of the health aspects.
He report of the authorities labour affected will focus on them means materials and human of the entity requesting.
4 received the application, the required labour authorities will seek, in turn, report by the Inspectorate of labour and Social Security and their territorial technical bodies in the field of safety and health at work, as well as many other reports considered necessary.
5. the labour authority, in view of the decision of the health authority and issued reports, issue and notify the resolution within the period of three months from the entry of the application in the register of the competent administrative authority to resolve, accrediting entity or denying the request formulated. This period shall be extended to six months in the case provided for in paragraph 3.
Elapsed said term without is has notified resolution express, the application can understand is rejected by silence administrative, of compliance with the article 31.6 of the law 31 / 1995, of 8 of November, of prevention of risks labour.
6 proceed to enact positive decision by the competent labour authority when to check the fulfilment of all the ends referred to in article 23.
The positive decision shall be entered in the register referred to in article 28.
7. against the decision expressed or alleged labor authority it may be brought appeal within a month before the relevant hierarchical superior body.»
5. Article 26 is worded as follows: «article 26. Maintenance of performance requirements.
1. specialized institutions shall maintain, at all times, the requirements to act as prevention services set out in this Royal Decree and its development provisions.
In order to ensure the fulfilment of this obligation, the specialized entities must notify the competent labour authority any variation that might affect such performance requirements through the corresponding records within a maximum of ten days.
2. labor and health authorities may check, in the scope of their powers, the fulfillment of the requirements for the development of service activities, communicating to the labour authority that granted the accreditation deficiencies detected during such inspections.
3. If as a result of the checks carried out, either directly or through designated communications in the previous section, the labour authority which granted accreditation found non-compliance with the requirements referred to in the preceding paragraph, you can suspend and, where appropriate, withdraw the accreditation granted in accordance with the procedure referred to in article 27.
4. in addition, the accreditation may be revoked by the competent labour authority, as a result of sanction for serious or very serious violation of the specialized entities that act as non-prevention services, in accordance with article 40.2 of the revised text of the law on offences and sanctions in the Social order, approved by Royal Legislative Decree 5/2000 , 4 August. In this case, revocation procedure will begin only firm administrative resolution that appreciates the existence of serious or very serious violation."
6. Paragraph 7 of article 27 is drawn up as follows: the maintenance of accreditation. "
(b) the suspension of accreditation when the record has been initiated by the circumstance referred to in paragraph 3 of the preceding article.
(c) the definitive revocation of accreditation when the record is due to the concurrence of the cause referred to in paragraph 4 of the preceding article.
En_el_caso_de paragraph (b)), the resolution shall fix the period in which the entity must meet the conditions and requirements to restart their activity and express warning that, otherwise, the accreditation shall be definitively revoked. «If the specialized entity will notify the fulfilment of these conditions or requirements within the time limit set in the resolution, the competent labour authority, prior the appropriate checks, dictate new resolution within a maximum period of three months by raising the agreed suspension or revoking accreditation definitely.»
7. Article 28 is worded as follows: «article 28. Registration.
1. the competent bodies of the autonomous communities or the General Administration of the State, in the case of the cities of Ceuta and Melilla, create a register in which will be registered specialized entities that have been accredited as prevention services, as well as persons or specialized entities has been granted that authorisation to carry out audits and evaluations of prevention in accordance with the provisions of chapter V.
2 records configuration must allow that, independently of the competent labour authority which issued the accreditation: to) citizens may consult specialized entities accredited as non-prevention services or audit entities.
(b) specialized institutions can fulfil their obligations of communication of data concerning compliance with performance requirements with the competent labour authorities.
(c) the labour authorities, health authorities, the Inspectorate of labour and Social Security, the National Institute of safety and hygiene at work as well as territorial technical bodies in the field of health and safety at work can have access to all available information on specialized entities accredited as non-prevention services and auditing entities, regardless of the authority which issued the accreditation.
3. the data in the registers of the competent authorities, including the communication of data concerning compliance with performance requirements referred to in article 26, which will be incorporated into a general database whose management shall be responsible for the General direction of employment of the Ministry of employment and Social Security.
This database configuration should allow the autonomous communities that their respective records comply with the functions attributed to them in paragraph 2.
4. them organs to which is concerns the paragraph 1 be sent to the address General of employment of the Ministry of employment and security Social, in the term of eight days working, copy of all seat practiced in their respective records. Competent authorities which assume the computer application of the general database referred to in paragraph 3, a record shall comply with this obligation of communication with the single addition of data to the aforementioned software.
5. the relations between them authorities labour is governed by the principle of cooperation and by it established in the article 4 of the law 30 / 1992, of 26 of November, of regime legal of them administrations public and of the procedure administrative common.
6. the management of the data in the registers will take place in accordance with the organic law 15/1999, of 13 December, of protection of personal data. The personal data not be used for purposes other than those for which such data have been collected."
Available to transient only. Procedures in processing.
Accreditation procedures initiated prior to the entry into force of this Royal Decree shall be handled and resolved by the regulations in force at the time of the filing of the application. However, the interested party may, prior to the resolution, withdraw your request and opt for the application of the new rules.
Available end first. Skill-related title.
This Royal Decree is issued on the basis of article 149.1.7. ª of the Spanish Constitution which establishes the exclusive competence of the State in labour legislation, without prejudice to its execution by the autonomous communities.
Second final provision. Enabling the regulatory development.
It empowers the Minister of employment and Social Security to dictate how many provisions necessary for the application and development of the provisions of this Royal Decree.
Third final provision. One-stop shop.
For the purpose of guarantee provisions in article 22 of law 20/2013, 9 December, guarantee of the unity of the market, the necessary measures for its implementation and, in particular shall be taken to ensure the interoperability of the different systems that depend on the Ministry of employment and Social Security, in accordance with the national interoperability scheme.
Available to finish fourth. Entry in force.
This Royal Decree shall enter into force the day following its publication in the "Official Gazette".
Given in Madrid, on October 9, 2015.
The Minister of employment and safety Social, FÁTIMA BÁÑEZ GARCIA
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