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

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

The public service is a structuring element 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 aspirants 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 in charge of the 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 workers, 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 conform to 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 government and patronage.

For the General Administration of the State, these mandates are specified in the General Regulations on Entry and Provision of Jobs, approved by Royal Decree 364/1995 of 10 March, which includes various rules on selection bodies, bodies in any case of a collegiate nature consisting 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 announcement may not be part of the selection bodies.”

In addition, paragraph 4 of that Article 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] are met. Applicants will be able to challenge them when any of these circumstances arise.”

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 indicated, 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, in such a way as to extend or restrict, where appropriate, the provision contained therein.

In this specific case, the ban has a time limit, “Five years before the publication of the corresponding announcement”, therefore, it could be said that cases 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 prohibition does not imply that the other provisions established to guarantee the impartiality of the selection bodies, such as the causes of abstention, are not applicable; causes contemplated 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 another matter in the resolution of which the person concerned may 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 marital bond or assimilable factual situation and the kinship of consanguinity within the fourth degree or of affinity within the second, with any of the interested parties, with the administrators of interested entities or companies and also with the advisors, legal representatives or representatives who intervene 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) Intervening 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 causes transcribed, there are several that may be incurred by a member of the selection body that carries out activities or tasks aimed at the preparation of candidates for participation in selective processes, and provided that it is not already affected by the aforementioned prohibition. So, “to have a personal interest in the matter in question or in another matter in the resolution of which the person concerned may 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 “to have a relationship of service 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” (Article 23.2.e), and finally, of course, “have a marital bond or assimilable factual situation and the kinship 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 will 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 raising conflicts of interest with their public position.”

In addition, it should be noted that the prohibition referred to above, which makes it impossible for persons who have carried out tasks of preparing candidates for participation in selective proceedings to be part of selection bodies to take part in selection proceedings, extends up to five years before the appointment, i.e. more than five years have elapsed since the end of such tasks in order for the official to be able to take part in a selection body, without prejudice to being able to incur, where appropriate, a cause of abstention.

The establishment of this prohibition is aimed at strengthening the rule in order to guarantee the inalienable objectivity and impartiality that all members of the selection bodies must possess. Thus, although the causes of abstention must refer to the specific process and to the persons involved, it is no less true that the concurrence of the cause, in the case of selective processes, must be examined in such a way that the impartiality required in those processes is not violated; moreover, given the importance of the selection of permanent personnel in the Public Administration, such as career officials.

In this sense, and in good logic, what is meant by a prohibition that extends to the five-year period prior to the call – carrying out activities or tasks aimed at preparing candidates for participation in selective processes – must be, in any case, during the subsequent time 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 preparing candidates, and that on the other hand, there is the possibility that someone who begins his or her work or preparation tasks after that time, can be part of a selection body. However, the fact that the same case 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 that it is understood to mean tasks of preparation of applicants, 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 - starting the preparation of applicants for selective tests after the call - would certainly not 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 official personnel selection bodies, or whether it also, by extension, applies to the labour personnel selection bodies.

And this is because, in any case, the causes of abstention and disqualification, which are the case that should be addressed here, are applicable to all selection bodies, without exception.

In this regard, since it is an alleged element in the abstention and disqualification, and not a prohibition, it must be ensured that none of the members of the selection body is involved 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 persons participating in it.

Likewise, and given the way in which selective processes are developed, it must be noted that there will not be any relationship or interrelation with other selective processes in which the participation of the members of the selection body (p.ej, elaboration of tests or exercises, deliberations, etc., may occur directly or indirectly. ), because, in this case, the causes of abstention and disqualification should then also be applied to them in the light of the other selective process.

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

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.