Impossibility that an opposition preparer may be part of a selection body.

The consultation concerns the impossibility that an opposition preparer may be part of a selection body; in particular, the initiation of the preparation of candidates for selective tests after the call for applications.

The public service is a cornerstone of our State model, and as such, access to it is contemplated in the Spanish Constitution, through its article 23.2, as a fundamental right, in order to guarantee equal opportunities and non-discrimination, so that only the merit and capacity of the candidates are taken into account, as provided in article 103 of the same.

Merit and ability, in turn, require that during each and every phase of the selection process, both the professionalism of those responsible for selection and the objectivity and impartiality of each and every one of them be guaranteed.

This is confirmed by the legal development of these constitutional provisions contained, firstly, in the consolidated text of the Law on the Basic Status of Public Employees, approved by Royal Legislative Decree 5/2015, of 30 October, and specifically in its Chapter I, Title IV (articles 55 to 62), hereinafter TRLEBEP.

As indicated in article 55, the Public Administrations must select their staff, both civil servants and employees, through procedures in which, in addition to guaranteeing the constitutional principles of equality, merit and ability, they are guaranteed, among others, “the impartiality and professionalism of the members of the selection bodies”, the latter provision being reiterated in article 60, which provides that “the selection bodies shall be collegiate and their composition shall comply with the principles of impartiality and professionalism of their members (…)”.

Article 112.1 (e) of Royal Decree-Law 6/2023 of 19 December approves urgent measures for the implementation of the Recovery, Transformation and Resilience Plan in the field of public service justice, public service, local regime and patronage.

For its part, in the area of the General Administration of the State, these mandates are specified in the General Regulations on Entry and Supply of Jobs, approved by Royal Decree 364/1995 of 10 March, which includes various rules on selection bodies, in any case collegiate bodies made up solely of civil servants of the Public Administration (currently in force in accordance with the fourth final provision of the TRLEBEP).

In particular, with regard to the impartiality of the members of the selection body, Article 13(2) provides that: “Officials who have carried out tasks of preparing candidates for selective tests in the five years prior to the publication of the corresponding convocation may not be part of the selection bodies.”

Paragraph 4 of that Article also provides that: “The members of the selection bodies must abstain when the circumstances provided for in article 28 of the Law on the Legal Regime of Public Administrations and Common Administrative Procedure [today, Law 40/2015, of 1 October] occur. Applicants may challenge them when any of these circumstances occur.”

There are therefore two provisions to guarantee the impartiality of the members of the selection bodies included in the Rules of Procedure: on the one hand, a ban and, on the other, the extension of the abstention and disqualification regime to each and every member of the selection body.

With regard to the application of the provision contained in Article 13(2), it is necessary to point out that it is, as mentioned, a “prohibition” and in this sense, it is understood that it must be applied in its own terms, without carrying out interpretations that, in any case, may imply a modification of it, so as to extend or restrict, where appropriate, the provision that it contains.

In this specific case, the ban has a time limit, “Five years prior to the publication of the corresponding call”therefore, it could be said that assumptions that are not within this time frame would not be affected by the ban.

However, the fact that it is not within the scope of the ban does not imply that the other provisions established to guarantee the impartiality of the selection bodies, such as the reasons for abstention, are not applicable; reasons referred to in Article 23(2) of Law 40/2015, of 1 October, in the following terms:

“2. The following are reasons for abstention:

(a) To have a personal interest in the matter in question or in any other matter in the resolution of which he or she might have an influence; to be an administrator of the company or entity concerned, or to have a dispute pending with any interested party.

b) To have a matrimonial bond or assimilable factual situation and the relationship of consanguinity within the fourth degree or affinity within the second, with any of the interested parties, with the administrators of the entities or societies concerned and also with the advisers, legal representatives or representatives involved in the procedure, as well as to share professional office or be associated with them for advice, representation or mandate.

c) To have intimate friendship or manifest enmity with any of the persons mentioned in the previous section.

(d) To have participated as an expert or as a witness in the proceedings in question.

e) To have a service relationship with a natural or legal person directly interested in the matter, or to have provided professional services of any kind and in any circumstance or place in the last two years.”

Of the listed causes, there are several that can be incurred by a member of the selection body who carries out activities or tasks aimed at preparing candidates for participation in selective processes, and provided that it is not already affected by the above-mentioned prohibition. So, " to have a personal interest in the matter in question or in another matter in the resolution of which he might have an influence " (Article 23.2(a)); “have intimate friendship or manifest enmity with any of the people mentioned in the previous section” (Article 23.2.c); or “have a relationship of service with a natural or legal person directly interested in the matter, or have provided professional services of any kind and in any circumstance or place in the last two years” (Article 23.2.e), and finally, of course, “to have a marital bond or assimilable situation and the relationship of consanguinity within the fourth degree or of affinity within the second, with any of the interested parties, (…)” (Article 23.2.b).

In addition, article 53.5 of the aforementioned text, which regulates the ethical principles applicable to civil servants and other public employees, provides that: “They shall abstain in matters in which they have a personal interest, as well as from any private activity or interest that may pose a risk of conflicts of interest with their public office.”

On the other hand, it should be noted that the above-mentioned prohibition, which presupposes the impossibility of being part of selection bodies for those who have carried out tasks of preparing candidates for participation in selective processes, extends up to five years before the convocation, that is to say, more than five years have elapsed since the completion of such tasks so that the official can be part of a selection body, and this, without prejudice to the possibility of incurring, where appropriate, a cause of abstention.

The establishment of this prohibition is aimed at strengthening the rule in order to guarantee the irrevocable objectivity and impartiality that must be possessed by all members of the selection bodies. Thus, although the reasons for abstention must refer to the specific process and to the persons involved, it is no less true that the concurrence of the case, in the case of the selective processes, must be examined in such a way that the impartiality required in them is not violated; moreover, given the importance of the selection of permanent personnel in the Civil Service, such as career officials.

In this sense, and in good logic, what is meant by a ban that extends to the five-year period preceding the call – carrying out activities or tasks aimed at the preparation of candidates for participation in selective processes – must, in any case, during the subsequent period of time be a cause of abstention, since otherwise it would be illogical to admit that one cannot be a member of a selection body if five years have not elapsed since the last activity of preparation for candidates, and that, on the other hand, there is the possibility that someone who begins his work or preparation tasks after that time, may be part of a selection body. However, the fact that the same scenario can be a ban and also a cause of abstention does not mean that both institutes operate in the same way and with the same extension.

On the other hand, the rule does not define what is meant by the tasks of preparing candidates, although in order to guarantee the aforementioned impartiality, it is understood that all ad hoc preparation or training, that is, given specifically for participation in a selective process, would be included within this term.

Furthermore, the situation that arises - the start of the preparation of applicants for selective tests after the call - would not, in truth, be within the prohibition established by the Regulation in its Article 13.2, but would fall, as has already been pointed out, within the assumptions of abstention and disqualification, hence it is not necessary in this case to determine whether the provision contained in that provision is applicable only to the organs for the selection of official personnel, or whether it also, by extension, applies to the organs for the selection of labour personnel.

This is because, in any case, the reasons for abstention and disqualification, which are the case that needs to be addressed here, apply to all selection bodies, without exception.

In this sense, since it is an alleged insert within the abstention and recusal, and not a prohibition, it is necessary to ensure that none of the members of the selection body is incurred in any of the cases contemplated in article 23.2 of Law 40/2015, of 1 October, referring in this case, as already indicated, to the specific process and with respect to the people participating in it.

In addition, and given the way in which selective processes are developed, it must be noted that there will be no relationship or interrelationship with other selective processes in which the participation of the members of the selection body (p.ej, preparation of tests or exercises, deliberations, etc., can take place directly or indirectly. ), because, in this case, the causes of abstention and disqualification should also be applied to them in the light of the other selective process.

Finally, it should be remembered that article 23.4 of Law 40/2015, of 1 October, provides that those who, having the duty to abstain, do not do so, will incur the appropriate responsibility.

All of the above is without prejudice to remember 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, do not have the character of a binding criterion, nor do they give rise to rights or expectations of law, nor do they imply any link with the type of procedures to which they refer. In addition, since they are not mandatory or binding, the bodies to which such replies are addressed may, where appropriate, finally take a decision that does not correspond to the opinion contained therein.

The answers to queries contained in this bulletin deal with the issues raised in the light of the regulations in force at the time of their issuance, so that these answers may be affected by subsequent legislative changes or judicial resolutions.