On October 1, 2010 Royal Decree 1000/2010 of August 5, on the obligatory professional association certificate, came into effect, seeking to identify the professional works that require the certificate of a professional association, as well as to specify the legal system that is applicable to the cases of obligatory professional association certificate.
Specifically in this note we shall briefly analyse the need to obtain the professional association certificate in the building industry, which must henceforward be taken into account by all agents in the building trade and specifically by the professionals involved therein (architects, engineers, etc).
The aforementioned Royal Decree develops what is set forth in section 13 of Law 2/1974 of February 13, on professional associations, in accordance with its current draft arising from the reform introduced by Law 25/2009 of December 22 on the modification of several laws for adaptation thereof to the Law on free access to the various service activities. Under said article 13, the professional association certificate became a voluntary instrument for use in those cases in which the client should expressly request this to be provided, including Public Administrations when acting as clients, although it granted the Government the power to determine which professional works would require obligatory professional association certificate on the basis of the existence of a direct causal relationship between the professional work and its impact on the safety and physical integrity of people.
Royal Decree 1000/2010 was adopted in the course of said legal qualification, seeking to regulate those professional works which by legal requirement must obtain professional association certificate, as an exception to the freedom of choice of the client established in the previous regulations, notwithstanding that other professional works may exist that are equally subject to professional association certificate at the express request of the client, including Public Administrations when acting as a client.
The obligatory nature of the obtaining of the professional association certificate has been set forth with an exclusive and excluding nature for all professional works listed in article 2 of the Royal Decree in question herein. Specifically, in the building sector, the works requiring professional association certificate shall be the following:
- Building execution project. For the purposes herein, building shall be understood to mean that which is set forth in article 2.1. of Law 38/1999, of November 5, on building regulation and the obligatory nature of the professional association certificate shall extend to all works requiring a project in accordance with article 2.2 of the aforementioned Law.
- Certification of final completion of building works. For the purposes herein, building shall be understood to means that which is set forth in article 2.1. of the Law on building regulation and the obligatory nature of the professional association certificate shall extend to all works requiring a project in accordance with article 2.2 of the aforementioned Law.
- Building execution project and certification of final completion of building works which, if applicable, must be presented as part of the administrative proceedings to legalise the building works, in accordance with applicable urban development regulations.
- Project of demolishment of building not requiring the use of explosives, in accordance with applicable urban development regulations
Notwithstanding the foregoing, exceptions to the obligation of obtaining professional association certificate shall be those works which, in application of the regulations of public contracting, should be subject to a report from the office of project supervision or an equivalent body, pertaining to the appropriate Public Administration, in which case said report shall suffice in terms of compliance of the obligation of obtaining professional association certificate.
On the other hand, those professional works not requiring an obligatory professional association certificate and which form part of a contract with the General State Administration shall not be obliged to provide professional association certificate, although duly justified exceptions to this rule may be agreed by the Cabinet in accordance with the principles of necessity and proportionality.
Likewise, it must be pointed out that the obligation to obtain the professional association certificate must be complied with only once and by only one professional association, even if the works are carried out or completed within partial projects and other technical documents, without requiring the partial certification of the documents forming part therein. In any event, for works subject to obligatory professional association certificate, this must be obtained prior to presentation of said works to the pertaining Public Administration and, under no circumstance will professional association certificate be possible subsequent to presentation.
Lastly, we must simply point out that the obligatory professional association certificate shall be issued by the professional association pertaining to the principal matter of the professional works, which shall be that pertaining to the profession of the person responsible for the entire project. In the event of several professional associations pertaining to the principal matter, the professional may obtain the association certificate from any of them. With regard to the aforementioned certifications of completion of building works, the principal matter includes both the management of the works and the management of the execution of the works; the professional association certificate from a professional association empowered in either of these areas will therefore be sufficient.