Administrative situation that corresponds to a career official who gets a contract as a "contract agent" of the European Union.

The consultation is about the administrative situation of a career official who gets a contract as a “contract agent” of the European Union.

Article 87 of the consolidated text of the Law on the Basic Status of Public Employees, approved by Royal Legislative Decree 5/2015, of 30 October, provides for the possibility of career civil servants being declared in the situation of special services in the event that they acquire the status of civil servants in the service of international organizations.

First, it should be recalled that Constitutional Court Judgment 99/1987 stated that the situation of special services constitutes a situation of privilege and that, like any privilege, it must always merit a restrictive interpretation.

Therefore, in the supposed subject of consultation as the official is going to occupy a position as a Contract Agent in the European Commission, not as a career official in the service of international organizations, it would not be possible to move to the situation of special services.

However, it would be possible to consider the possibility of declaring the transition to the situation of leave for the provision of services in the regulated Public Sector, for civil servants in the service of the General Administration of the State, in article 15 of the Regulation of Administrative Situations of Civil Servants of the General Administration of the State, approved by Royal Decree 365/1995, of 10 March.

In this regard, article 15 of Royal Decree 365/1995 states the following:

“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 an interim official or temporary staff will not qualify to move to this administrative situation.

For the purposes of the preceding paragraph, companies controlled by public administrations by any of the means provided for in commercial legislation, and in which the direct or indirect participation of said public administrations is equal to or greater than the percentage legally established, should be considered included in the public sector.”.

Therefore, it will be necessary to determine, first of all, whether the European Commission could be incorporated into the concept of the Public Sector. In this sense, taking into account that the presence of Spanish officials in the service of the European Union and International Organizations is an increasingly frequent occurrence, and that the European Union institutions have tended to be included in the broad concept of the Public Sector, it can be understood that the European Commission is embedded in the concept of the Public Sector for the purpose of analyzing the origin of the transition to the situation of voluntary surplus for the provision of services in the Public Sector.

However, to be declared in such a situation, the fixed or permanent nature of the contractual relationship is required, so it will be necessary to analyze the type of contractual relationship that is constituted in the case of providing services in the category of contractual agents in the service of the European Union.

According to information published by the Ministry of Foreign Affairs, European Union and Cooperation, in relation to the different employment relations in the European Union institutions, contractual agents provide services according to an administrative contract, usually temporary or of a certain duration. It is also pointed out that, according to the current regulations applicable at least in the case of the EC, contracting as a contractual agent may not exceed a cumulative period of six years. Exceptionally, some contract agents may maintain an indefinite relationship.

Therefore, in accordance with the provisions of article 15 of Royal Decree 365/1995, previously transcribed, civil servants could be declared to the service of the General Administration of the State in the situation of voluntary leave for the provision of services in the public sector, in the event that they occupy a job indefinitely as a contractual agent.

On the contrary, in the case of moving to a temporary position, it would not be possible to move to the administrative situation of voluntary surplus for the provision of services in the public sector, so that, provided that the requirements of the rule are met, it must move to the situation of voluntary surplus for private interest, in accordance with the provisions of article 89.2 of the TRLEBEP.

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.