Origin of special services to official of OPIS Scale who obtains scholarship in University

The question raised concerns the administrative situation of an official who obtains a Marie Curie Fellowship for a period of 14 months.

The specific objectives of the Marie Curie Intra-European Research Fellowships for professional development are, as described in the Work Programme, support for the development or restart of the professional career of experienced researchers at different stages of their professional careers. These Scholarships seek to value the diversification of their individual competences in terms of acquiring techniques at a multi or interdisciplinary level, as well as, where appropriate, the undertaking of cross-sectoral experiences. The aim is to support researchers in obtaining or strengthening independent positions of command, for example, principal investigator, university professor or other outstanding positions in the educational or business fields.

These Grants provide financial support for individual mobility proposals submitted by experienced researchers in partnership with host organisations established in the Member States or in partner countries. As a general rule, it is indicated that the host organization will recruit the researcher through a work contract or a scholarship with full Social Security coverage, being foreseen for very exceptional cases the payment of a scholarship for a fixed amount with a minimum Social Security coverage.

In advance, the legal framework for implementation must be analysed. Article 87.1 of the consolidated text of the Law on the Basic Status of the Public Employee (TREBEP), approved by Royal Legislative Decree 5/2015, of 30 October, establishes as a basic the cases in which career officials will be declared in the administrative situation of special services and, in paragraph b) of that article, establishes the following assumption: “when authorized to carry out a mission for a specified period of more than six months in International Organizations, Governments or Foreign Public Entities or in international cooperation programs”.

Without prejudice to the above, on the other hand, Article 87(4) of the EBEP states that “the declaration of this situation shall, in any case, proceed in the cases determined in this Statute and in the Civil Service Laws issued in the course of the same”.

In any case, until the laws of the Public Service of development of the TREBEP are approved, and in application of the fourth provision, the regulation of administrative situations remains in force, contained in Law 30/1984, of 2 August, on Measures for the Reform of the Public Service and in Royal Decree 365/1995, of 10 March, approving the Regulation of Administrative Situations.

The Agreement of the Higher Staff Commission of 13 July 1995, which sets out the criteria for the application of the Regulation on Administrative Situations, inter alia, specifies the criteria to be followed for declaring the situation of special services for the participation of an official in a mission of international cooperation, International Organizations, Governments or Foreign Public Bodies. It states that “the situation of special services of section 29.2 (a) of Law 30/1984, will be granted when the official participates in a mission of the characteristics established in said precept, in any case for a period of more than six months without the right to subsistence allowance, and provided that the interest of the Public Administration is established”.

“Such interest shall be justified by the Ministry of Foreign Affairs, either specifically or as a result of any of the following factors:

1st When cooperation with a certain country has a priority value for Spanish foreign policy.

2º When the cooperation project in which the official is integrated may lead to the entry into the foreign country of Spanish companies.

3º Due to the position to be occupied, when the official is in the capacity of “Expert”, “Consultant”, “Advisor”, “Special High Level Collaborator”, “Head of Mission”, “Director or Deputy Director of a Project”, “Supervisor” or “Resident Representative”.

4º 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).

5º When it comes to a special collaboration in an emergency case.

6º With regard to multilateral cooperation, that is, in cases where the staff member is hired by an International Agency (whether the contract is offered by the Agency or has been produced at the request of the staff member, who subsequently selects and hires the staff member), there will be special interest in the cases mentioned in point 3 and more specifically when the level of the position to be occupied is at least grade P-4, equivalent or higher.”

On the other hand, and in order to determine whether the situation of special services is appropriate in the case raised, it should be recalled that Constitutional Court Judgment 99/1987 stated that this 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.

Based on the information provided, the Marie Curie Scholarships are scholarships that consist of a training stay, that is, they are intended to facilitate the training of researchers who meet the requirements set out in the call for applications.

In other words, it is exclusively a training activity but, in no case, it involves the participation of the interested party on behalf of the State or the General Administration of the State, or participates in an international Project as an official or assimilated.

Therefore, in the view of this unit, the award of this scholarship would not justify the transfer of the official to the administrative situation of special services due, firstly, to the exceptional nature of this administrative situation and, secondly, because his participation as a career official and the existence of an interest for his own Agency or for the General Administration of the State do not seem to be justified.

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.