Possibility to apply for voluntary leave by family group when the spouse is an official in the Administration of another Member State of the European Union.

The question raised is about voluntary leave by family group, in particular, about the assumptions that give rise to such leave.

Firstly, the legal framework for implementation needs to be analysed. According to article 89.2 of the consolidated text of the Law on the Basic Status of Public Employees (TREBEP), approved by Royal Legislative Decree 5/2015, of 30 October:

‘Voluntary leave by family group may be granted without the requirement of having provided effective services in any of the Public Administrations during the established period to officials whose spouse resides in another locality for having obtained and being performing a permanent job as a career official or as a permanent job in any of the Public Administrations, Public Bodies and Public Law Entities dependent on or linked to them, in the Constitutional or Judicial Bodies and similar Bodies of the Autonomous Communities, as well as in the European Union or in International Organisations.

Those who are in a situation of voluntary leave by family group will not earn remuneration, nor will the time they remain in such a situation be computable for the purposes of promotions, triennials and rights in the Social Security system that is applicable to them.”

Thus, the requirements required by TREBEP to grant this type of leave are that the person requesting it must be a career official and that the cause justifying its granting is given, that is, that the spouse of the requesting official must reside in another municipality for having obtained and performed a permanent job as a career official or as a permanent job in any of the Public Administrations, entities or bodies referred to in article 89.3 of the TRLEBEP.

With regard to the Public Administrations referred to in the article and, in particular, whether they include the Public Administrations of the Member States of the European Union; it should be noted, first of all, that when the rule itself refers to its scope in Article 2 it includes a series of Public Administrations among which are not the Public Administrations of the Member States of the European Union.

Likewise, when it was intended to include the Administrations of the Member States of the European Union, it was done expressly; as is the case of the services provided in them, for the purpose of counting trienniums prior to entry into the Bodies and Scales of officials (Additional provision twenty-sixth of Law 30/1984, of 2 August, on Measures for the Reform of the Public Service, introduced by Law 2/2004, of 27 December).

On the other hand, Article 89.3 of the TRLEBEP expressly describes the “Public Administrations” in respect of which the article applies. Thus, together with the administrations already referred to in Article 2, Article 89(3) itself also includes the “European Union” and the “international organizations”, but makes no mention whatsoever of the Public Administrations of the Member States of the European Union.

For all these reasons, it is understood that when Article 89.3 TRLEBEP refers to the spouse performing a permanent job as a career official or as a permanent job in any of the Public Administrations, it cannot be understood that the Administrations of the Member States of the European Union are included in this concept.

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.