Issues relating to the granting of the licence on its own behalf.

The issue raised concerns the leave for own affairs regulated by section 73 of the State Civil Servants Act of 1964. In particular, it is considered whether it is necessary to have provided a minimum service time to enjoy it and whether this license can comprise periods less than seven days.

Firstly, the legal framework for implementation needs to be analysed. The leave for own affairs is regulated in article 73 of the Civil Servants Act of 1964, a provision still in force in accordance with the provisions of Final Provision 4th of Royal Legislative Decree 5/2015, of 30 October, approving the revised text of the Basic Statute of the Public Employee Act, which establishes:

“Until the Civil Service laws are enacted and the development regulations are in force in each Civil Service, 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.”

Thus, with regard to the licence to which we referred, article 73 of the Civil Servants Act of 1964 states that:

“Licenses may be granted on their own behalf. Such licences shall be granted without payment, and their cumulative duration may not exceed three months in two years.”

In this way, this article expressly establishes the maximum duration of the license (3 months) in a specific period (two years). However, nothing is specific regarding the concurrence of a period of absence or provision of services by official personnel as a requirement for the granting of the license.

In the absence of concreteness in the regulation, and in accordance with an exercise in both systematic and teleological interpretation of the norm, it is difficult to interpret from the literal tenor of the precept the will to establish a temporary requirement of two years of service in the General Administration of the State from the moment of taking office as a career official to be able to apply for leave for their own affairs.

In order to deepen the interpretative criterion, in order to interpret the precept according to the proper sense of its words, in relation to the context, the historical and legislative antecedents, and the social reality of the time in which they are to be applied, fundamentally attending to the spirit and purpose of those, several elements can be highlighted from the literal tenor of the article in question: “its cumulative duration (of the leave for own affairs) may not in any case exceed three months every two years”. From this sentence you can extract the following notes:

The mention of the “accumulated duration” of the license implies that there is the possibility to apply for several licenses in two years. The maximum time for all licences granted within two years is three months. It is not specified that there is a requirement to have served for two years in the Administration to be able to apply for the license in question.

The contrary interpretation would imply introducing a restriction on the enjoyment of a right not provided for in the law, taking into account that the aforementioned precept expressly includes limitations and conditions. Thus, the granting of the license for its own affairs is optional, the needs of the service and the other circumstances concurrent in the specific case must be assessed by the competent body and, in any case, it must be taken into account that the period of enjoyment of this license does not entail the right to remuneration or compute as effective services for all purposes.

The license for its own affairs, therefore, has a single limit, of a maximum of 3 months of enjoyment in a period of two years, being able every two years of services to enjoy a license of up to three months, without inferring that it is necessary to provide two years of services to be able to start enjoying this license.

In addition, the granting of the license is optional and discretionary, and the competent body must assess the organizational and service needs and other circumstances concurrent in the specific case.

With regard to the second question raised concerning the duration of the licence, it should be noted that the said Article 73 refers only to the fact that within two years the maximum duration will be three months, but is silent in relation to the duration of each of the periods.

In this sense, the jurisprudence has placed emphasis on avoiding the possible abuse that may occur in the use of such a license, especially in relation to non-working days.

In this regard, it is worth mentioning the Judgment of 4 October 2002 of the Administrative Litigation Division of the Court of Justice of Madrid, which in its Legal Basis 2 considers correct the criterion of extending the effects of the licence for its own affairs from the first day it ceases to work until the day of the actual incorporation, in this case including Saturdays and Sundays, since the remuneration and rest of the weekends are due precisely to the provision of effective services throughout the week. On the contrary, the failure continues, “would result in a disproportionate increase in the maximum permit duration of three months every two years provided for in Article 73.”

This judgment nuanced the judgment contained in the judgment of 27 September 2001 of the same Chamber in which it was not considered appropriate to extend the effects of the leave for own affairs beyond the days strictly requested in cases where the request is not made by requesting certain working days but excluding non-working days. The application that excludes non-working days must be considered an abuse in the use of the license according to the aforementioned Judgment.

From the joint analysis of both Judgments it can be concluded that the jurisprudence understands that the determining element when determining the origin of extending the effects of the license for own affairs to the non-working days is the possible abuse, which would occur when the application includes a period of working days and excludes the non-working days that would be comprised in that period.

In conclusion, the criterion of this management center when granting the license for its own affairs is that the effects of the license must not be prolonged beyond the strictly requested days provided that the application is not made for certain working days, excluding intermediate non-working days. The opposite would determine a willingness to abuse the right to leave while denaturing the provisions of section 73 of the State Civil Servants Act of 1964 since failure to count Saturdays and Sundays would disproportionately increase the maximum length of leave.

Therefore, the leave for own affairs may include periods of less than seven days whenever the personnel unit deems it appropriate in accordance with the needs of the service. The inclusion or exclusion of non-working days will be assessed taking into account the possible abuse that occurs in the use of such a license.

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.