Deadlines for taking office as a career official in the State Administration.

There is consultation regarding the calculation of the deadlines for taking office as career civil servants in the State Administration on the basis of the provisions of article 114.12 of Royal Decree-Law 6/2023, of December 19, which approves urgent measures for the implementation of the Plan of Recovery, Transformation and Resilience in the field of public service of justice, public service, local regime and patronage.

Article 114.12 of Royal Decree-Law 6/2023, of 19 December, provides that “(…) The appointment of career staff shall be made within a period of fifteen calendar days from the date of publication of the appointment, which shall be one month when it entails a change of place of residence.”

This provision replaces the provisions of article 36 of Decree 315/1964, of 7 February, approving the Civil Servants Act, which determined that the inauguration would take place within one month, from the notification of the appointment.

On the other hand, article 114.12 of Royal Decree-Law 6/2023, of 19 December, establishes that: “In the case of interim and prospective staff members, the inauguration shall take place on the day following the appointment.”

Doubts have arisen regarding the dies ad quo which will be taken into account by the personnel units and newly appointed personnel, and whether the new wording implies a change of that initial time of the deadline.

To elucidate this issue, in the area of human resources, the distinction between substantive time limits and procedural or procedural time limits must be used. This distinction is established, in the civil sphere, between limitation periods, determinants in the enjoyment of rights, and expiration periods, strictly linked to the scope of the process.

Thus, substantive time limits are those that determine the time frame in which the enjoyment of a right is to be deployed, while procedural or procedural time limits are those time periods during which the party or interested party is required to take a specific action in the context of a particular process or procedure.

The substantive deadlines will have to be regulated by the provisions of the special rule, while the procedural deadlines are interwoven in the rules of Law 39/2015, of October 1, of the Common Administrative Procedure of Public Administrations.

As explained in the Explanatory Statement of the aforementioned law, “The main novelty is the introduction of hourly time counting and the declaration of Saturdays as non-working days, thus unifying judicial and administrative time counting”that is, unifying the computation of the procedural deadlines that constitute the object of the LPACAP with the procedural ones, but not necessarily with those that have a substantive character.

In the area of human resources, which we are dealing with now, there are both substantive and procedural deadlines, the substantive ones being those during which public employees are entitled to the enjoyment of a permit, for example, and the procedural ones, those that are fixed, in this same example, for the application for the enjoyment of the permit by the interested party to be made or for the Administration to respond to that request by means of an express resolution or, failing that, by means of administrative silence.

In this case, we are indubitably faced with a procedural deadline, which are governed by the provisions of Law 39/2015, of October 1.

Therefore, given the indeterminacy of the wording used in the rule, it cannot be deduced the willingness of the legislator to proceed to a tacit derogation, or non-application of article 30 of Law 39/2015, of 1 October, of 1 October, of the Common Administrative Procedure of Public Administrations, which establishes the general rules on the calculation of deadlines in administrative law.

Specifically, article 30.3 of Law 39/2015, of October 1, declares the following:

“3. The time limits expressed in days shall be counted from the day following the day on which the notification or publication of the act in question takes place, or from the day following the day on which the estimate or the rejection by administrative silence takes place.”

Therefore, the dies ad quo It shall, in any case, be on the day following the publication of the decision on the appointment of career staff.

In addition, Article 30 of Law 39/2015, of 1 October, does not authorise the national legislator or the law of the European Union to alter the rules on the calculation of deadlines. However, it does allow to modify the general rule of working days by the use of calendar days, an issue that Royal Decree-Law 6/2023, of 19 December, has taken advantage of to determine the special rule of calendar days in relation to the term for taking office.

A different interpretation would lead to a change in legal status on the same day in certain cases where the appointment involves a prior termination, for example, as an interim official or trainee.

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.