Special services for serving as Director General of a Foundation

The question raised concerns the possibility of declaring the transfer to the special services situation of an official of the General Administration of the State who becomes Director General in the Foundation Center for Distance Education for Economic and Technological Development (CEDDET Foundation), in accordance with article 87.1.b) of Royal Legislative Decree 5/2015, of 30 October, approving the revised text of the Law on the Basic Status of Public Employees (hereinafter, TREBEP), the following is reported:

Article 87.1.b) of the TREBEP establishes that, career officials shall be declared in a special service situation: “Cwhen authorised to carry out a mission for a specified period of more than six months in International Organisations, Governments or Foreign Public Bodies or in international cooperation programmes”.

In other words, the mission to be carried out must be in International Organizations, Governments or Foreign Public Bodies or in international cooperation programs.

Therefore, it must be considered what type of institution is the CEDDET Foundation. In this sense, the CEDDET Foundation is a non-profit entity, with general interest, private initiative and permanent nature, which collaborates with several international cooperation agencies for the development of institutional strengthening programs and which is composed of Portal Universia, S.A, Fundación Telefónica and the EFE Agency, S.A.

That is, it should be highlighted when authorizing the passage to the situation of special services, which is a Foundation of a private nature.

On the other hand, in accordance with the Constitution, the Statutes of the Foundation establish that it is the responsibility of the Director General: to exercise, through the express authorization of the Board of Trustees, the ordinary management of the Foundation and, in particular, the powers and powers of the Board as listed in numbers 7, 11, 13, 17, 18, 19, 20 and 22. However, this Unit is not aware of the Foundation’s own Statutes.

In addition, in order to authorize the transition to the special service situation, in accordance with article 87.1.b) of the TREBEP, this Centre ' s criteria have been reiterated. The Centre ' s criteria must be that there must be an interest on the part of the Administration in the participation of the staff member in international cooperation programmes.

First of all, it should be remembered that the courts have pointed out that this administrative situation constitutes a situation of privilege and that, like any privilege, it must always merit a restrictive interpretation.

Similarly, the Commission for the study and preparation of the Basic Statute of the Public Employee in its report of 25 April 2005 considers that the situation of special services should remain exceptional, since it is still a privileged situation, as the jurisprudence highlights, and that the benefits derived from it should be restricted to elective positions, to those of a political nature or trust in the strict sense, as well as to those who hold relevant and temporary positions in international bodies and in the constitutional or equivalent bodies of the Autonomous Communities.

In the area of the General State Administration, the Agreement of the Higher Personnel Commission of 13 July 1995 stipulates that the declaration of an official in the situation of special services for international missions requires the existence of an interest of the Administration itself in the participation of the official in the mission.

This interest must be justified by the Ministry of Foreign Affairs, either specifically or as a result of one of the following factors:

1) When the cooperation project in which the official is integrated may lead to the entry into the foreign country of Spanish companies.

2) When the mission to be carried out by the official is framed within a Project contemplated in a Scientific, Technical or Cultural Cooperation Agreement, signed between Spain and a certain country (in the case of bilateral technical assistance).

In accordance with the above, in order to determine whether the transfer to the position of special services of an official for the position of Director General of the CEDDET Foundation, in accordance with article 87.1.b) of the TREBEP, the following requirements must be met: first, that the official participates directly in an international cooperation program; and second, that there is an interest of the Administration itself in the participation of the official in the mission: because such a cooperation project may lead to the entry into the foreign country of Spanish companies or, because it is a project contemplated in an Agreement signed by the Spanish State, that is to say, a direct or indirect participation of Spain.

For all of the foregoing reasons, the corresponding unit shall be competent to declare the transfer to the special service situation in accordance with the requirements set forth and the concurrent circumstances of the case.

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.