The possibility of extending the active service of interim officials is considered.

The present consultation raises the possibility of extending the active service of interim staff members.

Article 10 of the consolidated text of the Law on the Basic Statute of the Public Employee (TRLEBEP), approved by Royal Legislative Decree 5/2015, of 30 October, on interim civil servants, provides that interim civil servants are those who, for expressly justified reasons of need and urgency, are appointed as such for the performance of functions proper to career civil servants, when any of the circumstances indicated in this article occur.

As regards the rules applicable to them, Article 10(5) provides that: "The general rules governing career officials shall apply to interim officials insofar as they are appropriate to the nature of their status".

Therefore, the application of the regulation established for career officials shall apply to interim officials where appropriate. “to the nature of his temporary status and the extraordinary and urgent nature of his appointment,” This requires considering what nature is and what the notes that characterize it are.

Although this is a relationship governed by administrative law, what really characterises this type of staff in relation to the career civil servant is the temporality of the relationship established with the Public Administration, unlike that of the career civil servant, who is a civil servant. “permanent character”.

Therefore, in the first place, the temporary and non-permanent nature of the relationship held by the interim official is an essential element in determining which rules and, above all, to what extent, should be applied to such personnel when the precept in question does not determine who is the addressee or addressees of the same.

It is appropriate to recall here the provisions of Council Directive 1999/70/EC of 28 June 1999 on the framework agreement between the ETUC, UNICE and the CEEP on fixed-term work; in particular, the fourth clause of the Directive relating to the ‘Principle of non-discrimination’, which states the following:

“1. As far as working conditions are concerned, workers on a fixed-term contract may not be treated in a less favourable manner than comparable permanent workers merely because they have a fixed-term contract, unless different treatment is justified on objective grounds.

2. Where appropriate, the pro rata temporis principle shall apply. (…)”

Two considerations can be made in the light of the ECJ case law on the application of that Directive.

On the one hand, under the terms of the directive itself, it is understood that workers on a fixed-term contract may not be treated in a less favourable manner than comparable permanent workers merely because they have a fixed-term contract, unless different treatment is justified on objective grounds.

On the other hand, the provisions of the Act on fixed-term work are applicable to both career staff and interim staff.

This is without prejudice to the fact that the doctrine established by the CJEU tends to concur with the regulations governing fixed and temporary staff, allowing, however, that differences exist when they are justified, but without serving as a basis for such differentiation exclusively the temporary element.

Starting from these extremes, and going into the analysis of retirement, it is regulated in article 67 of the TRLEBEP. This article, under the heading of “Retirement”, provides for the different types of retirement by referring to “officials”, in a generic way and without any specification, as is the case, for example, with administrative situations in which clearly the legislator establishes that its application corresponds only to “career officials”.

On the other hand, it is not only logical that interim officials, like any other kind of staff, should have the right to retirement (a right thus contemplated for all public employees in Article 14 of the TRLEBEP), but, in addition, Article 63 provides for retirement as one of the causes of termination of the interim official.

In this regard, and unless there is a specific provision, it is understood that the provisions contained in article 67 of the TRLEBEP on the retirement of civil servants generally apply to the interim official.

However, it should be noted that Article 67(3) actually regulates, precisely, an exception to forced retirement due to age, and is the so-called prolongation or “permanence in active service” as the precept expressly indicates.

Thus, paragraph 3 of this article states that “In the terms of the Civil Service Laws that are dictated in the development of this Statute, it may be requested to prolong the stay in active service at most until the age of seventy”.

Although, as has been pointed out, the other paragraphs dealing with the different types of retirement would apply to interim officials, the question arises as to whether this provision, that of continuing active service, is specific to career officials or whether, on the contrary, it may also apply to interim officials.

In this regard, it seems that it is necessary to delineate in any case the prolongation or stay in active service of the regime of administrative situations itself.

This idea is supported by the current regulation itself since, in contrast to article 33 of Law 30/1984, of 2 August, in which the extension was configured as a real right of the official, article 67.3 of the TRLEBEP, which has come to replace it, regulates the extension in active service as ‘(…) a subjective right conditional on the organisational needs of the Administration making its exercise possible; but it is incumbent on the Administration to justify those organisational needs which must determine the granting or refusal of the extension. In any event, the Administration’s obligation to give reasons, whether favourable or not, for the decision on the extension of active service requested by the official in accordance with the needs of the organisation, implies that the needs cited as the basis for the decision to be taken are adjusted to reality and that their existence is proven (…)’. (for all, STS, Litigation Room, February 6, 2017).

That is, although the Administration must necessarily motivate the granting or refusal of the extension in the active service, it is no longer configured as an inherent right to the position, as had been understood, and from which it could be deduced that, by this nature, it was only predicable of those who have a permanent relationship, that is, the career officials – who are the only ones who have the right to the position – but rather it is a right that is linked to the organizational needs of the Public Administration.

Therefore, if it is understood that the extension of active service, in the light of TRLEBEP, is no longer an element of the right to office, it is also not sustainable for it to be a predicable right exclusively for career staff.

On the other hand, in the regulation in force in the General State Administration, the Resolution of 31 December 1996 of the Secretariat of State for Public Administration, which establishes additional procedural rules for the application of the extension of active service to public officials in the scope of the General State Administration, still in force, provides that it applies to the personnel contained in article 1.1 of Law 30/1984, which includes “personnel in the service of the General State Administration”. Although the different categories of personnel are not specified in this provision, in no case is an exception made for interim staff members.

In parallel, it should be remembered that, according to the Supreme Court, the extension of retirement is not just a statutory right, but a right that in any case is conditional on the fact that “the organizational needs of the Administration allow its exercise, it is understood that the right to remain or continue in active service can also be recognized, where appropriate, to the interim official staff”.

Therefore, in the light of the regulations in force in the General Administration of the State, and of the doctrine established by the ECJ in the application of Directive 1999/70/EU set out above, and considering the nature currently possessed of permanence or prolongation in active service, the recognition of permanence or prolongation in active service to interim civil servants cannot be made to the same extent as to career civil servants; since here there is a difference that conditions the resolution that may be dictated to that effect, and it is none other than the very temporary nature of the interim relationship.

In this regard, the resolution that may be adopted by that body, if it finally chooses to recognize the right to remain in active service to the interim official, must modulate such recognition in the sense that the cessation may occur, before reaching the maximum age of seventy years, provided that any of the circumstances legally provided for in Article 63 of the TRLEBEP or any other rule that in this regard includes a provision in this regard, pursuant to which the cessation of the status of interim official occurs.

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.