Access to the public service for applicants aged 65 and over.

The issue raised concerns the access to the General Corps of applicants aged 65 or over.

First.- Forced retirement age.

Article 67 of the consolidated text of the Law on the Basic Status of Public Employees, approved by Royal Legislative Decree 5/2015, of 30 October, (hereinafter, TRLEBEP), establishes that the retirement of civil servants may be “Forced, upon reaching the legally established age”.

“3. Compulsory retirement shall be declared ex officio when the official reaches the age of sixty-five years.

However, in the terms of the Civil 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 is reached. The competent Public Administration must resolve in a motivated manner the acceptance or refusal of the prolongation. (…)

4. Irrespective of the statutory age of compulsory retirement set out in paragraph 3, the age of compulsory retirement for civil servants covered by the General Social Security Scheme shall, in any case, be that provided for in the rules governing that scheme for access to retirement pension in its contributory form without a reduction coefficient on the basis of age.”

We can therefore distinguish between two cases of forced retirement, depending on the Social Security System to which they belong.

On the one hand, to the officials of the Special Social Security Regime of State Civil Servants, and as far as it is concerned here, of the State Passive Classesthe provision of Article 67.3 of the TRLEBEP in line with the provisions of Article 28 of Royal Legislative Decree 670/1987, of 30 April, approving the Consolidated Text of the Law on Passive Classes of the State, which indicates that the retirement or retirement that will be the cause of pensions may be: “a) of a forced nature, which will be automatically declared when said personnel meet the age legally indicated for each case as determining retirement or retirement”.

This provision, for officials subject to this Special Regime, is directly linked to the age of 65 years of forced retirement in Article 67.3 of the TRLEBEP.

On the other hand, for officials subject to the General Social Security System, the wording of Article 67.4 TRLEBEP brings cause of Article 11 of Royal Decree-Law 20/2012, of 13 July, on measures to guarantee budgetary stability and to promote competitiveness, which sought to align the regulation then in force with the reform of public pensions that was carried out through Law 27/2011, of 1 August, through which a calendar of progressive application of the new retirement age from 65 to 67 years was introduced.

This measure ensures that the minimum age of compulsory retirement for civil servants included in the General Social Security System is at all times the minimum age provided for in the General Social Security System for access to the ordinary retirement pension, without any loss of remuneration.

Thus, from 2013, and in general, the minimum age of forced retirement for civil servants included in the General Social Security System would be 65 years and 1 month. This age will increase progressively, according to the provisions contained in the General Social Security Law, year by year, until reaching the age of 67 years.

As for the expression “retirement in its contributory mode without reducing coefficient due to age”, to which the current art refers. 67.4 of the TRLEBEP, such a provision indicates that the minimum forced retirement age for civil servants will be (adds, “in any case”) the one provided for ordinary contributory retirement, that is, for retirement in which no reduction coefficients are applied, thus avoiding confusing such retirement with early retirement, in which reduction coefficients are applied.

For its part, article 205.1 of the consolidated text of the General Social Security Law (hereinafter, TRLGSS), approved by Royal Legislative Decree 8/2015, of 30 October, requires to be entitled to the retirement pension, in its contributory form, that the persons included in the General Social Security System, in addition to other requirements, have reached 67 years of age, or 65 years when 38 years and 6 months of contribution are accredited.

This paragraph must be understood in accordance with the Seventh Transitional Provision of the TRLGSS, which establishes a scale for the gradual application of retirement ages and contribution periods.

In accordance with the above, and according to the above, the age of forced retirement differs depending on the Social Security system to which the official belongs: 65 years if the official belongs to the Special Social Security System of civil servants of the State, or the age which, according to the table set out in the General Social Security Law, corresponof the minimum age for access to the ordinary retirement pension without reduction in the case of officials belonging to the General Social Security System.

In that sense, as has been analyzed, all civil servants who enter the civil service at present are subject to the compulsory retirement age referred to for the General Social Security System.

Second.- General requirements for access to the public service.

Article 56 TRLEBEP regulates, among the general requirements to be able to participate in the selective processes, the following:

“(c) To be at least sixteen years of age and not to exceed, as the case may be, the maximum age of compulsory retirement. Only by law may another maximum age, other than the age of forced retirement, be established for access to public employment.”

On the other hand, Order HFP/688/2017, of July 20, which establishes the common bases that will govern the selective processes for entry or access in bodies or scales of the General Administration of the State, includes the same provision of Article 56 but includes the following:

"Those who aspire to enter the Bodies and Scales subject to the calls, must possess on the day of completion of the deadline for the submission of applications and maintain until the moment of taking office as a career official, the following general requirements of participation, as well as those that indicate the corresponding specific bases:

3. Age: Have reached the age of sixteen and do not exceed, where applicable, the maximum age of forced retirement."

Therefore, to be eligible for a selective process, the age of the opponent may not exceed, until the moment of taking office as a career official, the maximum age of forced retirement of the Corps or Scale to which they intend to accede.

Without prejudice to the above, two specific assumptions will be analysed in detail, on the one hand, access by free shift and, on the other hand, access through a selective process by internal promotion.

In this sense, based on the above paragraphs and in general, if the candidate (in any of the access turns) is older than that corresponding to the age of forced retirement of the Social Security System of the Corps or Scale to which he/she intends to access, he/she must either be excluded from the corresponding list, or be excluded at a later time if he/she meets the age at that time, and until the taking of possession, for not fulfilling one of the requirements to be able to present to said selective process.

As has already been indicated, at present, in general, the officials who access the bodies and scales of the General State Administration do so, for retirement purposes, in the General Social Security System and, therefore, with the age of forced retirement identical for all, analyzed in the previous section and except for exceptional groups.

Third.- Access by free turn.

In this regard, we will distinguish between two assumptions. On the one hand, that the applicant is not a career official at the time of presenting himself/herself to the selective process, and on the other hand, in those cases in which the applicant is a career official of a Body or Scale and presents himself/herself to a selective process for access, by free turn, to another Body or Scale, either of the same or of different subgroup.

i. If the applicant is not a career official.

Firstly, as has already been pointed out, in order to be able to apply for a selective process, the age of the opponent may not exceed, until the moment of taking office as a career official, the maximum age of forced retirement.

In the event that you do not meet the age requirement to enter the public service you will have to be excluded at the time that you fail to meet that requirement. This requirement could be verified by submitting a TGSS work life certificate that will confirm the years of the opponent’s contribution.

II. If the applicant is already a career officer.

Secondly, in the case of opponents who are already career officials, they can access a new Corps or Scale by free shift.

As a general rule, access to a particular Corps or Scale, even if you already have the status of a career officer, will require that the age of the opponent does not exceed the maximum age of forced retirement.

Without prejudice to the above, it is necessary to analyze a specific case, that of those career officials who are in a situation of extension of active service and seek access to a different Corps or Scale through selective process for free time.

In this regard, Article 67.3 of the TRLEBEP provides for the Possibility of requesting the extension of the stay in active service until the age of seventywhose procedure is currently provided for in the Resolution of 31 December 1996 of the State Secretariat for Public Administration (BOE of 1 January 1997) (hereinafter referred to as the Extension Resolution).

It is necessary to analyze here if the authorization of the extension in the active service occurs for a given Body or Scale, or is extensible to other Bodies, so that access to applicants could be allowed is a situation of extension of the active service by free shift.

For the following reasons, it is understood that this is not possible, since the authorization of extension in the active service is linked to the Body or Scale in which it occurs.

First, the current legislation does not expressly provide that retirement in a Corps entails retirement in the other Corps or Scales to which the official may belong because, as already indicated, the retirement ages are regulated specifically for each Corps or Scale. In addition, retirement should be considered an administrative act that extends its effects only to the Body or Bodies that are expressly determined in the Resolution that agrees to it.

Exemplifying the above, an official can belong to a University Teaching Corps, a Police Corps and a General Scale of the AGE, groups with different regimes and forced retirement ages and retire at different times in each of the Bodies or Scales.

Another example is the retirement due to permanent incapacity (declared by total permanent incapacity for the usual profession), which does not mean that the official is retired simultaneously in all the Bodies or Scales to which he belongs, unless the resolution stipulates that the incapacity affects any professional activity that could be carried out, or unless the functions of a Body were included in those of the Body subject to retirement due to permanent incapacity, and provided that the adaptation of the job or transfer to another position is not possible. In this case he will be retired only in the Body or Scale determined by the resolution when it does not impede the development of the functions corresponding to another Body to which the official belongs.

Likewise, when the rehabilitation of the retired civil servant due to permanent incapacity is regulated and the resolution is estimatory, the procedure determines that the provisional performance of a job corresponding to his Body or Scale must be assigned.

Secondly, the Extension Resolution refers to Bodies and Scales when, for example, in the preliminary part of the text it excludes from the right to extension in active service “the officials of those bodies and scales that have specific retirement rules.” It is understood that it refers to the fact that the right does not belong to the official, but to belong to a Body or Scale or collective that has foreseen the possibility of extension.

Thirdly, the first additional provision of the Prolongation Resolution states the following:

“Officials who are in administrative situations other than active service and who wish to extend their stay in active service for when they obtain re-entry into active service may reserve this right by writing to the retirement body at least two months before the date of fulfilment of the age of forced retirement. The entry into the register of the document of the interested party will determine the non-initiation or suspension of the procedure of forced retirement by age, thus communicating it to the interested party. At any time prior to re-entry into active service, the interested party may request from the competent body the initiation or continuation of the procedure of forced retirement by age.

The economic and administrative effects of the extension of active duty, which will occur once the staff member has re-entered the active duty situation, will coincide with the date of re-entry.”

That is, the ‘reservation of the right’ to the prolongation of the active service is allowed when the official is not in this administrative situation for the moment in which he re-enters it, so it is also linked to being active in a certain Body or Scale.

In this sense It is understood that the extension in active service refers to a certain Corps or Scale of belonging of the official in question.

Thus, based on the arguments presented, when opponents aged 65 years or over with an extended period of active service in the Corps or Scale of origin are presented to a selective process and meet the age of forced retirement at the time that the rule and bases indicate that the access requirements must be met (analyzed in the third section) the first option would be exclude them the selective process at that time for non-compliance with the age requirement.

One could analyze here a possible controversy of restriction of rights during the period in which the official is ‘prolongedIn relation to his participation in a selective process, it is understood that, if during this period of extension in active service all the rights inherent to the status of civil servant are enjoyed, the limitation on access to public employment could be understood as limiting rights.

However, it is understood that during the extension not only are all rights enjoyed, but also all the obligations, such as compliance with the requirements of access and acquisition of the status of career officer, are fulfilled; therefore, it could be understood that there would be no such limitation both in terms of the need to comply with these requirements of access and the consequences arising from their non-compliance.

Different would be the assumption that the opponent acquires the status of official a few months before reaching the age of forced retirement and, once he/she takes possession, is in time to request the authorization of extension in the new Body or Scale.

By way of conclusion of the possible options, starting from the premise that the prolongation in active service only has effects on the Body or Scale in which it is authorized, in case the applicant exceeds the age of forced retirement, Whether official or not, as well as whether you have the authorization of prolongation or not, you must be excluded from the selective process if the age requirement is not met.

Fourth.- Access by internal promotion.

With regard to internal promotion, the same conclusions apply as with regard to free shift access for career officers of other Corps or Scales.

Thus, in the specific case of officials in active service extension, in this case it would be a question of studying the possibility, exclusively for these purposes of access by internal promotion, of the ‘drag’ of the authorization of the extension in active service in the Body or Scale of origin to the new Body as happens with the consolidated degree of the official when promoting a new Body, for example.

A priori, it is not an option that this unit sees legally feasible for several reasons: grade dragging is expressly provided for in the norm, but not dragging the extension to active service; in that sense, it would mean allowing a possibility not provided for in the norm that, in addition, could lead to possible discrimination against the opponent who goes free.

In addition, as already explained in the third section of this consultation, in relation to the deployment of effects of the extension to active service, neither the regulations on public service provides for this ‘extension’ of the extension nor, likewise, the Resolution of the same seems to refer to the Body or Scale that the official occupies when requesting it, so the possibility that we analyze now would be discarded.

Fifth.- Conclusions:

- La retirement, within the civil service, on the one hand, constitutes a right of the civil servant, who in this way obtains a rest paid for the services provided throughout his professional life; but, on the other hand, when he agrees with forced character, constitutes a limitation of the right to work or, at least, to paid work in the public service. In this regard, the legislative reforms carried out with regard to the General Social Security System ensure that the minimum age of compulsory retirement for civil servants included in the General Social Security System coincides at all times with the minimum age for access to the ordinary retirement pension.

- The forced retirement age of civil servants is generally provided for in article 67 of the consolidated text of the Law on the Basic Status of Public Employees, approved by Royal Legislative Decree 5/2015, of 30 October.

- It is understood that the prolongation in the service active refers exclusively to the Corps or Scales for which it was authorized, even if the official belongs to several Corps or Scales.

- The requirements for access to the public service include the following: “not to exceed, where applicable, the maximum age of compulsory retirement”. This requirement must be met until the moment of taking possession, if applicable.

- In that sense, sIf an applicant, before, during the selection process and until taking office, meets the mandatory retirement age provided for in the regulations, it is understood that he/she should be excluded from the selection process in question.

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.