Possible revocation of the granting of an extension to continue in the active service.

The consultation is about the possible revocation of the granting of an extension to continue in the active service.

The bases of the legal regime of public employees are regulated in Royal Legislative Decree 5/2015, of 30 October, approving the consolidated text of the Law on the Basic Status of Public Employees (hereinafter, TRLEBEP)

Article 67 of the TRLEBEP contains the regulation of the retirement of public officials. The third paragraph of this article states that “Compulsory retirement shall be declared ex officio when the official reaches the age of sixty-five.

However, in the terms of the Public Service Laws that are issued in the development of this Statute, it may be requested to extend the stay in active service at most until the age of seventy. The competent Public Administration must resolve in a motivated manner the acceptance or denial of the prolongation.”

In accordance with the provisions of the Fourth Final Provision of the TRLEBEP which states, in its third paragraph, that “until such time as the Civil Service Laws and the regulations for development are enacted, the existing regulations on the management, planning and management of human resources shall remain in force in each Civil Service as long as they do not conflict with the provisions of this Statute”Article 33 of Act No. 30/1984 of 2 August 1984 on measures for the reform of the civil service, which provides that: “The forced retirement of civil servants shall be declared ex officio upon reaching the age of sixty-five.

Notwithstanding the provisions of the preceding paragraph, such declaration shall not take place until such time as the staff members cease to be in active service, in those cases in which they voluntarily prolong their stay in active service until, at most, seventy years of age. The Public Administrations will dictate the procedural rules necessary for the exercise of this right.”

This procedure is contained in the Resolution of the Secretary of State for the Civil Service of 31 December 1996, which establishes additional procedural rules for the application of extended active service to civil servants in the General State Administration. The procedure for requesting an extension begins at the request of the party, and the competent body must decide on the grounds for granting or refusing the extension, after examining the circumstances and the situation of the official.

The decision, as a final result of the administrative procedure, may be subject to appeal by the interested party, in case it is unfavourable to him.

In the case that is the subject of the consultation, there is a favorable resolution for the interested party, adopted after a procedure adjusted to the current regulations. In this case, the possibilities that the Administration has to revoke this resolution are contained in articles 106 et seq. of Law 39/2015, of October 1, on the Common Administrative Procedure of Public Administrations. These routes and the possibility of being used in the event of fact that is the subject of the consultation will be briefly explained below:

Revision of null and void provisions and acts (Article 106) and Declaration of Invalidity of Revocable Acts (Article 107). - These two possibilities cannot be used since they require, as an indispensable condition, that the acts on which the review is to be exercised are null (in the case of article 106) or annulable (in the case of article 107) in accordance with the provisions of articles 47 and 48 of Law 39/2015, of 1 October, respectively.

This is not the case with the act granting the extension, which was produced without incurring any type of infringement of the procedure nor is it contrary to the legal system.

Revocation of favourable acts (Article 109.1).- This channel is not liable to be used either, since the revocation is exercised, in accordance with the provisions of the first paragraph of Article 109, in respect of “unfavourable or burdensome acts”, not being the case of the granting of the extension, which is favorable to the interested party.

Revision of material errors (article 109.2).- The use of this power would not proceed because there are no material errors capable of being corrected and, in any case, this revision would not affect the substance of the matter.

Finally, in the event that the official who, being in extension of active service, incurred temporary incapacity, must proceed in the same way as for the rest of the officials, that is, applying the provisions of articles 169 and following of Royal Legislative Decree 8/2015, of 30 October, which approves the consolidated text of the General Social Security Law.

All of the foregoing is without prejudice to recalling that, according to the regime of competences of this management center, the answers to queries issued by this general directorate are merely informative and, consequently, are not of a binding criterion, nor do they give rise to rights or expectations of law, nor imply any link with the type of procedures to which they refer. Furthermore, in the absence of a mandatory or binding nature, the bodies receiving such replies may, where appropriate, finally take a decision that does not correspond to the opinion contained therein.

The responses to queries contained in this bulletin address the issues raised in the light of the regulations in force at the time of their issuance, so that such responses may be affected by subsequent legislative changes or judicial decisions.