Possibility of declaring a career official in the administrative situation of voluntary leave for the provision of services in the public sector for moving to work as an employee in the Official Chamber of Commerce of Spain

In accordance with the fourth final provision of Royal Legislative Decree 5/2015, of 30 October, approving the consolidated text of the Law on the Basic Status of Public Employees (TREBEP), until the approval of the laws on the development of public service, it remains in force in the field of administrative situations, in what does not contradict said text, Law 30/1984, of 2 August, on Measures for the Reform of the Public Service and Royal Decree 365/1995, of 10 March, approving the Regulation on Administrative Situations of Civil Servants of the General State.

Article 29.3.a) of Law 30/1984, of 2 August, on Measures for the Reform of the Public Service regulates the situation of voluntary leave for public officials when they are in a situation of active service in another Body or scale of any of the Public Administrations, or when they go to provide services in Agencies or Entities of the public sector and it is not appropriate for them to remain in another situation.

Currently, the regulation of voluntary leave for the provision of services in the public sector is provided for in article 15 of the Regulations on Administrative Situations of Civil Servants of the State, approved by Royal Decree 365/1995, of 10 March (in the wording given by Royal Decree 255/2006, of 3 March) in force until the promulgation of the Civil Service Law of the General State Administration, as follows:

“1. Career officials who are in active service in another Body or Scale of any of the Public Administrations, unless they have obtained the appropriate compatibility, shall be declared, on their own initiative or at the request of a party, in the situation regulated in this article, and those who go on to provide services as permanent staff in Public Sector Bodies or Entities and are not entitled to remain in situations of active service or special services. The performance of positions with the character of interim official or temporary work personnel will not qualify to move to this administrative situation.”

In short, according to the aforementioned article, a career official who is in active service in another Body or Scale of Public Administrations and those who go on to serve as permanent working personnel in Public Sector Agencies or Entities and it is not their responsibility to remain in active service or special services.

It will therefore be necessary to determine whether this Official Chamber of Commerce of Spain is likely to fall within the concept of Public Administrations or Public Sector Bodies or Entities.

Law 4/2014, of April 1, Basic of the Official Chambers of Commerce, Industry, Services and Navigation establishes among others its concept, legal regime and purpose.

Specifically, the Official Chamber of Commerce, Industry, Services and Navigation of Spain referred to in the consultation is a corporation of public law, with its own legal personality and full capacity to act for the fulfillment of its purposes, which is configured as an advisory body and collaboration with the General Administration of the State, without prejudice to the private interests that it may pursue.

The purpose of this Official Spanish Chamber is to represent, promote and defend the general interests of trade, industry, services and navigation, as well as to provide services to companies that carry out the indicated activities. It shall also exercise its powers at the State level conferred on it by this Law and those that may be assigned to it by the General Administration of the State in accordance with the instruments established by the legal system.

With regard to its rules of application, the Official Chambers of Commerce, Industry, Services and Navigation shall comply with the provisions of that Law and with the rules of development that are dictated by the General Administration of the State or by the Autonomous Communities with competence in the matter. The legislation relating to the structure and functioning of public administrations shall apply to them, as a supplementary measure, insofar as it is in accordance with their nature and purposes. The contracting and the patrimonial regime will be governed in accordance with private law.

Article 30 of Law 4/2014, of April 1, establishes that the Official Chamber of Commerce, Industry, Services and Navigation of Spain may have the necessary personnel for its proper functioning, to which the labor legislation will apply.

Without prejudice to the foregoing, the regulation does not provide for the need required by TREBEP for these personnel to access public employment in accordance with the principles of equality, merit and ability, nor for the other principles that must be present in the selection of the civil and labour personnel of the Public Administrations, entities and bodies foreseen in its field of application (publicity, transparency, impartiality of the selection bodies, among others).

On the other hand, the regulation of their income and financing also does not imply that the Official Chambers are mainly involved by the Public Administrations, without prejudice to the fact that they can receive subsidies from them.

Although many of its characteristics could lead one to think, a priori, that we are faced with a public body or entity, other defining notes could lead to an opposite conclusion.

In this sense, the Chambers are part of the so-called Corporate Administration, which includes certain organizations that, without being in the strict sense of Public Administration, do participate in the exercise of certain public functions.

They are not public administration in the strict sense, neither territorial nor institutional (because they are not commercial societies or public bodies), but organizations whose members are interested in the achievement of the specific purpose of the Corporation in question.

They are privately based corporations created for the representation and defense of economic and professional interests. Depending on their participation in public tasks, they have a higher or lower degree of publicity and a partial assimilation of their acts to the administrative regime, which is what jurisprudence has called bifronte configuration.

The main purpose of these Chambers is to defend the private and common interests of a certain economic and professional sector, even if they perform public functions attributed or delegated by the administration.

In view of the foregoing, it can be concluded that the Official Chambers have two spheres of action, those of a private legal nature, in respect of which their legal regime and position are those of the private sector, and those of a public legal nature, whose regulation and regime is that of the Public Administrations.

In this way, despite the public form of its legal personality, justified by the attribution of public functions, its nature of privately based corporations is not concealed by acting as decentralized agents of the tutelant Administration, which does not imply its identification and transformation into Public Administrations, so that, the performance of a job in a Corporation of this nature, such as the Official Chambers, would not determine the passage of the career official to the administrative situation of voluntary leave for the provision of services in the public sector.

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.