The consultation concerns the possibility of refusing the extension 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 dictated in the development of this Statute, it may be requested to extend the stay in active service at the latest until the age of seventy is reached. The competent Public Administration must resolve in a reasoned manner the acceptance or refusal of the extension. (…)”

On the other hand, in the field of the General Administration of the State, and in the absence of 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 complementary procedural rules for the application of the extension of active service to public officials in the field 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 with regard to article 67.3 of the Constitution.

In this sense, it is understood that the Public Administrations can deny the prolongation of the stay in the active service in a motivated way. However, it is necessary to bear in mind that the Supreme Court has established that the power of self-organization, by itself, is not sufficient for the Public Administration to determine the grounds for refusal (SSTS. 10 March 2010; 17 March, 24 March, 7 April, 14 April, 18 April 20 April, 16 June and 20 December 2011), having, therefore, to be based on reasons, either objective in the norm; or, on reasons established by the Administration but based on 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 Act No. 30/1984 of 2 August, in which the extension was a genuine right of the official, article 67.3 of the TRLEBEP, which has come to replace him, regulates the extension of the active service as ‘(…) a subjective right conditional on the organisational needs of the Administration making its exercise possible; but it is up to 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 staff member 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 proved (…)’. (By all, STS, Administrative 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, but rather a right that is linked to the organizational needs of the Public Administration.

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

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

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.