Administrative situation in which a career official of the General Administration of the State must remain, in the event that he is appointed Magistrate.

The consultation deals with the situation in which an official of the General Administration of the State who becomes a judge must remain.

In this regard, and with regard to the regime of administrative situations, attention must be drawn to the regulation that in this regard contains the consolidated text of the Law on the Basic Status of Public Employees, approved by Royal Legislative Decree 5/2015, of 30 October (hereinafter, TRLEBEP).

It is also necessary to comply with the provisions of the fourth, second paragraph, final provision, which provides as follows:

“Until the Civil Service laws are enacted and the development regulations are in force in each Public Administration, the current regulations on the management, planning and management of human resources shall remain in force as long as they do not conflict with the provisions of this Statute.”

With regard to this provision, the provisions of paragraph 11 of the Instructions of June 5, 2007, for the application of the Basic Statute of the Public Employee in the field of the General Administration of the State and its Public Agencies, published by Resolution of June 21, 2007, of the General Secretariat for Public Administration, must be taken into account. “The regulation of administrative situations contained in Law 30/1984 and Royal Decree 365/1995 remains in force”, with certain changes that affect the administrative situations of special services, of services in other Public Administrations and of voluntary leave in its different modalities.

Accordingly, it is appropriate to examine the forecasts concerning the administrative situation of special services included in TRLEBEP.

Given the rights and benefits that such an administrative situation entails in favor of the official and the reciprocal obligations that it imposes on the Administration, Article 87 of the TRLEBEP, regulates as follows: Numerus Clausus the cases giving rise to the declaration of the administrative situation of special services.

In this regard, article 87 of the TRLEBEP does not expressly include, in any of its paragraphs, the appointment as a judge by the turn of jurists of recognized competence. Article 29 of Act No. 30/1984 of 2 August 1984 on measures for the reform of the civil service does not take account of this situation, which results in the situation of special services.

On the other hand, it is understood that this appointment cannot be framed in the case contemplated in Article 87(g) of the TRLEBEP, which states that career officials shall be declared in a special service situation. “When they are appointed to be part of the General Council of the Judiciary or the councils of justice of the autonomous communities.”

This provision does not apply to those who become service providers in the judiciary or, where appropriate, in the administration of justice, but only to those who serve in the judiciary ' s own governing body, that is, in the General Council of the Judiciary or, where appropriate, in the councils of justice of the autonomous communities.

Likewise, from the examination of Organic Law 6/1985, of June 1, on the Judiciary, it follows that, without prejudice to certain specialties, especially linked to their irremovability and independence, Judges and Magistrates have a status assimilable to that regulated in the TRLEBEP for career officials included in its scope (appointment, administrative situations, permits and licenses, etc. ), so the appointment as Judge or Magistrate is nothing more than acting as Agent of a State Power, but, in no case, it is a designation or appointment of a “political” nature, but an appointment of a “professional” nature.

Therefore, this professional appointment cannot give rise to the declaration of a public servant in special services, since the situation of special services is foreseen for cases of appointment or election that always involve the occupation of another post or position on a temporary basis, which is not the case in this case, in which we are dealing with an appointment of a permanent nature.

In accordance with the foregoing, it is concluded that the appointment as a judge by the turn of jurists of recognized competence does not give rise to the administrative situation of special services in their Corps of origin.

On the understanding that the declaration of the situation of special services is not appropriate, and in accordance with the stated schema of sources, it can be said that the administrative situation of voluntary surplus for the provision of services in the public sector, regulated in articles 29.3.a) of Law 30/1984, of 2 August, and 15 of the Regulation of Administrative Situations, approved by Royal Decree 365/1995, of 10 March, remains in force within the General Administration of the State.

In particular, article 29.3.a) of Law 30/1984, of 2 August, provides as follows:

“Public officials shall be declared to be on voluntary leave when they are in active service in another Body or Scale of any of the Public Administrations, or when they go on to provide services in Public Sector Bodies or Entities and it is not appropriate for them to remain in another situation.”

And Article 15.1 of the Regulations on Administrative Situations, specifies:

“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, 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, shall be declared, on their own initiative or at the request of a party, in the situation regulated in this article. The performance of positions with the character of interim official or temporary work personnel will not qualify to move to this administrative situation.”

According to the precepts transcribed, when a career official becomes a member of another Corps or Scale, of any Public Administration, as a career official, he must be declared in the administrative situation of voluntary leave for the provision of services in the public sector.

In the present case, a career official of the Higher Corps of Civil Administrators of the State has entered the judicial career, by the turn of jurists of recognized competence, in the category of Magistrate, so he has acquired a new title for the exercise of a public function and, therefore, must be declared in the situation of voluntary leave for the provision of services in the public sector.

On the basis of the foregoing, it is concluded that the career official of the General Administration of the State who becomes a judge must be declared in 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.