Issues relating to voluntary leave in the interest of the individual.

The question raised concerns voluntary leave in the interests of the individual, first of all, whether interim officials can benefit from this type of leave.

Firstly, the legal framework for implementation needs to be analysed. Article 10 of the consolidated text of the Law on the Basic Statute of the Public Employee (TREBEP) defines interim officials as those who "for expressly justified reasons of necessity and urgency, they are appointed as such for the performance of duties proper to career officials, when any of the circumstances arise" as indicated in that article

As regards the rules applicable to them, Article 10(5) provides that: "The general rules governing career officials shall apply to interim officials insofar as they are appropriate to the nature of their status".

In principle, in Title VI of the TRLEBEP, entitled “Administrative situations”, it defines the same in reference to “career” officials.

Thus, both Article 85, which lists such administrative situations, and Article 89, which sets out the modalities that may be adopted by leave, refer to career officials. Specifically, with regard to the situation of voluntary leave due to particular interest, Article 89(2) recognizes this situation to “career officials”. Interim officials are therefore excluded from the scope of such leave.

This is based on the fact that there are reasons for this differential treatment between career and interim officials. It should be recalled that permanence is a criterion linked to the figure of the interim, since his appointment is justified for reasons of necessity or urgency, which justified that he cannot be recognized as a voluntary surplus. This criterion has been ratified by Supreme Court Judgement No. 42/2023 of 19 January.

It is understood, therefore, that an interim staff member may not move into a situation of voluntary leave in the interest of the individual.

The second issue concerns the rules for the calculation of prior effective services that are required in order to apply for such leave.

It should be recalled that in accordance with the provisions of Article 89(2) of the TREBEP, career officials may obtain this leave:

“When they have provided effective services in any of the Public Administrations for a minimum period of five years immediately before. However, the Civil Service Laws enacted in pursuance of this Statute may provide for a shorter period of service required for the career officer to apply for leave and the minimum periods of stay shall be determined.”

For its part, Article 16.2 of the Regulations on Administrative Situations, approved by Royal Decree 365/1995, of March 10, which remains in force in what does not contradict TREBEP, in accordance with the fourth final provision of said legal text, establishes that “to request the declaration of the situation of voluntary leave due to particular interest it will be necessary to have provided effective services in any of the Public Administrations during the five years immediately prior to the request”.

In this context, the Higher Staff Commission, in an Agreement of 13 July 1995 establishing the criteria for the application of the Regulations on Administrative Situations, considers as computable services for the purpose of granting voluntary leave in the particular interest, inter alia:

“(a) Those provided as a career official, trainee official, interim official, temporary staff, under employment or administrative contract in any of the Public Administrations, Autonomous Bodies and Social Security Management Entities. (…)”

Therefore, it is understood that, for the purpose of granting voluntary leave for private interest, it will be possible to compute all the services provided above, including both those provided since his appointment as a trainee, and those provided as contingent personnel.

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.