WRITTEN QUESTION E-1219/00

by Alonso Puerta (GUE/NGL) to the Commission

(14 April 2000)

Subject: Safety of workers in Spanish tunnels

The Community and the Member States are endeavouring to reduce the industrial accident rate to a minimum. However, the measures adopted by the Spanish Government in 1997 to transpose Council Directives 92/57/EEC(1) of 24 June 1992 and 92/104/EEC(2) of 3 December 1992 have given rise to serious inconsistencies posing additional safety risks in civil engineering tunnel works. The above Community Directives on the safety of workers make a clear distinction between extractive industries and civil engineering works. Directive 92/57/EEC relates to the safety of temporary or mobile construction sites, and Articles 1 and 2 explicitly exclude extractive industries. Work on wells, underground earthworks and tunnels is listed in Annex II to the Directive (point 6) among the types of work involving risks to workers. Directive 92/104/EEC relates only to safety in the extractive industries, in other words underground or opencast mines.

Prompted by the Ministry for the Prime Minister's Office, the Spanish Government transposed Directive 92/57/EEC quite correctly under Royal Decree 1627/1997, issued on 24 October of that year, laying down minimum safety provisions applicable to civil engineering works, including tunnelling, digging of wells, and other works entailing underground earth movements. Article 1(2) of the Decree expressly excludes extractive industries. However, when it issued Royal Decree 1389/1997 of 5 September 1997, stemming from a proposal from the Ministry for Industry, Energy, and Mining, the Government transposed Directive 92/104/EEC surprisingly inaccurately in that Article 2(4) of the Decree refers not only to the extractive industries, but in addition to all industries carrying out tunnelling or (gallery) driving operations.

As a result of these two inconsistent provisions, site managers and other tunnel workers are having to contend with a confused body of mandatory rules and contradictory optional instructions because there is an overlap of responsibilities between authorities that enforce different safety regulations and separate systems of penalties. The fact that substantial amounts are expected to be invested in public works in Spain over the next few years could increase the instances of risk.

What steps will the Commission take to ensure that Directive 92/104/EEC is properly transposed in Spain and, specifically, to make the Spanish authorities repeal Article 2(4) of Royal Decree 1389/1997 of 5 September 1997?

(1) OJ L 245, 26.8.1992, p. 6.

(2) OJ L 404, 31.12.1992, p. 10.

Answer given by Mrs Diamantopoulou on behalf of the Commission

(26 May 2000)

The Commission has examined the Spanish measures for implementing Council Directive 92/57/EEC of 24 June 1992 on the implementation of minimum safety and health requirements at temporary or mobile construction sites (eighth individual Directive within the meaning of Article 16(1) of Directive 89/391/EEC) and Council Directive 92/104/EEC of 3 December 1992 on the minimum requirements for improving the safety and health protection of workers in surface and underground mineral-extracting industries (twelfth individual Directive within the meaning of Article 16(1) of Directive 89/391/EEC) and has concluded that they have been correctly transposed into Spanish law.

This conclusion remains unaffected by the fact that under Real Decreto 1389/1997, which transposes Directive 92/104/EEC on surface and underground mineral-extracting industries into Spanish law, tunnelling activities of all kinds are subject to the minimum requirements applicable to the mining sector. Indeed, Real Decreto 1389/1997 states that this provision is without prejudice to the rules applicable to the construction sector, i.e. provisions transposing Council Directive 92/57/EEC on temporary or mobile construction sites.

Insofar as Directive 92/57/CEE was adopted on the basis of Article 137 of the EC Treaty (ex Article 118A), it lays down minimum requirements in the field of health and safety to be implemented on temporary or mobile construction sites. The expression minimum requirements indicates that the Member States are at liberty to maintain or introduce measures more stringent that those which form the subject of the Directive, in accordance with Article 137(5) of the EC Treaty. This means that a Member State may extend the scope of application of the minimum requirements laid down for the mining sector to include activities in the construction sector provided that the minimum requirements established for this sector by Directive 92/57/EEC are not compromised.

An examination of Spanish legislation has shown that the application of the minimum requirements for the mining sector to some construction activities such as tunnelling has increased the level of protection for workers as laid down by Directive 92/57/EEC.

It is the responsibility of the Member States to ensure proper checks and monitoring of the national provisions transposing directives. In this connection, the appointment of the competent authorities is entirely a matter for the Member States.