Possibility of declaring in a special service situation a staff member who goes on to provide services in a Foundation.

According to the data subject to consultation. A career civil servant from the Polytechnic University is going to start providing services at the Ibero-American Foundation for Education, Science and Culture.

Firstly, with regard to the scope of application of the consolidated text of the Law on the Basic Status of Public Employees, approved by Royal Legislative Decree 5/2015, of 30 October (TRLEBEP), Article 2 states:

“This Statute applies to civil servants and, where applicable, to staff working in the service of the following Public Administrations: (…)

- the Public Universities”.

The TRLEBEP regulates the administrative situations in Title VI and, specifically, Article 87.1 establishes on a basic basis the cases in which career officials will be declared in the administrative situation of special services, among others: (…).

“(…) b) When authorized to carry out a mission for a specified period of more than six months in International Organizations, Governments or Public Entities or in programs of international cooperation.

(j) When they acquire the status of officials in the service of international organizations.”

Therefore, it must be considered, on the one hand, what type of institution is the Ibero-American Foundation for Education, Science and Culture, and on the other, what type of position or labor link is going to unite the official with the Foundation.

With regard to the first issue, the Ibero-American Foundation for Education, Science and Culture was established in October 1999 by an agreement adopted at the Eighth Extraordinary Meeting of the Organization of Ibero-American States (hereinafter OEI), whose board of trustees consists of practically all the member countries of the Organization, including Spain.

The OEI is an international governmental body for cooperation among Ibero-American countries in the field of education, science, technology and culture in the context of integral development, democracy and regional integration. Among its full Member States and observers are all the Ibero-American countries that make up the community of nations and Spain (the headquarters of its General Secretariat is in Madrid).

The creation of the Foundation is based on Article 2 of the Statutes of the OEI which states that one of its specific purposes is that of " (k) To establish specialized centres, establish institutes, establishments and other bodies and agencies for research, documentation, exchange and dissemination in the educational, scientific, technological and cultural fields and decentralized services required for the fulfilment of their aims or the implementation of their programme of activities " . And in order to achieve these purposes, in accordance with Article 4 of its Organic Regulations, the aforementioned organization may: “9) Promote the creation and coordination of organizations, associations, unions and other types of national, regional or international entities, related to the different levels of education and to the various aspects of the educational, scientific and cultural life of the Ibero-American countries (…)”.

Therefore, it must be understood that it is a Foundation that serves an International Agency for the fulfillment of its purposes.

Regarding the second issue, in this case, in order to be able to be declared in the situation of special services, one must be in one of the specific cases of article 87.1 of the TRLEBEP to which reference has been made. That is, either it is a mission in an International Agency for more than six months, or it becomes an official in it.

This Management Centre considers that, if it is in any of the cases to which we have just referred, a statement of the administrative situation of special services of the staff member would be made.

However, it should be recalled 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.

The situation of special services must remain exceptional, since it is still a privileged situation, as the jurisprudence highlights, and 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 occupy 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 cooperation with a certain country has a priority value for Spanish foreign policy.

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

3. 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”.

4. 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).

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

6. With regard to multilateral cooperation, i.e. in cases where the staff member is recruited 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 recruits the staff member), there will be special interest in the cases referred to in point (3) and, more specifically, where the level of the post to be occupied is at least grade P.4, equivalent or higher.”

In general, it can be said that in these cases there is, in principle, an interest in facilitating the participation of the official in the project in question in the best possible conditions, trying to ensure that a restrictive application of the current regulations does not limit the possibilities of having Spanish officials in these tasks of an international nature.

In short, the essential criterion that is taken into account in the General Administration of the State when declaring an official in a special service situation under article 87.1.b) of the TRLEBEP is that there is an interest of the Administration itself in the participation of the official in the international mission in question.

In conclusion, in the event that the official moves to a relevant position in the interests of the Administration for more than six months or becomes an official of the Ibero-American Foundation for Education, Science and Culture, she may be declared in an administrative situation of special services.

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.