Possibility to deny the prolongation in the active service.

The consultation is about the possibility of denying the prolongation in the active service.

Article 67.3 of the consolidated text of the Law on the Basic Status of Public Employees (TRLEBEP), approved by Royal Legislative Decree 5/2015, of 30 October, states the following:

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

However, in the terms of the Civil Service Laws that are enacted 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. (…)”

Furthermore, in the context of the General Administration of the State, and in the absence of any development on this point, it is understood that the procedure established by 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 context of the General Administration of the State, remains in force and is applicable.

However, it must be borne in mind that this regulation must be applied in accordance with the jurisprudence established by the Supreme Court in respect of article 67.3 of the TRLEBEP.

In this sense, it is understood that the Public Administrations can deny the prolongation of the stay in the active service in a motivated manner. However, it is necessary to take into account that the Supreme Court has established that the power of self-organization, in itself, is not sufficient for the Public Administration to determine the grounds for refusal (SSTS. March 10, 2010; March 17, March 24, April 7, April 14, April 18, April 20, June 16 and December 20, 2011), having therefore to be based on reasons, either objective in the norm; or, on reasons established by the Administration but starting from the premises that for this purpose has previously established the norm.

Specifically, with regard to the organizational needs referred to in the consultation, the High Court considers that, 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 him, 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, Administrative Litigation Division, 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, but rather it is a right that is linked to the organizational needs of the Public Administration.

Hence, the refusal of the prolongation of active service, in addition to the causes already established in the 1996 Resolution itself, can also be based on organizational needs.

However, based on this same jurisprudence, it should be pointed out that the organizational needs must be established by the Administration itself, essentially through the corresponding human resources planning and management instrument, and in any case the reality and relevance for that specific case of the alleged needs must be established in the resolution.

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.