The question arises whether article 122 of Royal Decree-Law 6/2023, of 19 December, approving urgent measures for the implementation of the Recovery, Transformation and Resilience Plan in the field of public service justice, public service, local regime and patronage, which regulates the horizontal career, applies to interim civil servants.

In the present case it is appropriate to analyze whether the interim officials are entitled to the recognition of the horizontal career in the same terms as the career officials.

Before addressing the specific issue raised, the legal framework of the horizontal career, as a formula for professional progress, needs to be analysed.

Article 16 of Royal Legislative Decree 5/2015, of 30 October, approving the revised text of the Law on the Basic Status of Public Employees (hereinafter, TREBEP), provides that:

"1. Career officers shall be entitled to professional promotion.

2. The professional career is the ordered set of promotion opportunities and expectations of professional progress according to the principles of equality, merit and ability (…)”

And he goes on to point out that:

"3. (a) Horizontal career consists of the progression of degree, category, step or other similar concepts, without the need to change jobs and in accordance with the provisions of Articles 17(b) and 20(3) of this Statute."

To do this, according to these normative referrals, (i) they must be evaluated “The trajectory and professional performance, the quality of the work done, the knowledge acquired and the result of the performance evaluation. Other merits and aptitudes may also be included because of the specificity of the function developed and the experience gained.” -Article 17.b)-; and, (ii) "The Public Administrations shall determine the effects of the evaluation on the horizontal professional career, the training, the provision of jobs and the receipt of the additional remuneration provided for in Article 24 of this Statute" -Article 20.3-.

For its part, article 122 of Royal Decree-Law 6/2023 regulates the horizontal race, which consists of:

“the recognition of the professional development of career civil servants through their progression through promotion in a system of stages, defined as the successive stages of recognition of professional development that are the result of an objective and regulated evaluation, without the need to change jobs.”

The recognition of this right requires compliance with a number of requirements, in particular:

• the lapse of a minimum period of five years of effective service in the case of the first tranche and six years in the following -Article 122.2.c)-;
• the appraisal of the professional trajectory, as well as of the result of the performance appraisal -Article 122.3.A;
• the completion of a specialized training course - Article 122.3.b)- and;
• the acquisition of professional competences and qualifications deemed necessary - Article 122. 3.C--

Thus, from the joint reading of the aforementioned precepts, the right to a horizontal race through the ascent in the system of sections, starts from the fulfillment of the following requirements:

• That at least the minimum period of effective services has elapsed (five in the first section and six in the following).
• Assessment of the professional trajectory, the result of performance evaluation and accreditation of professional training and competences.

Therefore, and by the very nature of the horizontal stroke figure, it only produces its effects when the requirements laid down in the standard are met.

In this way, the horizontal career is a model of professional progression for public employees, directly applicable, although subordinated to the course of the minimum period of services, and with the appropriate assessment of the trajectory and professional training.

A second aspect to be clarified is the legal regime for interim officials.

Article 10 of the TREBEP defines interim officials as those who “For reasons expressly justified of necessity and urgency, they are appointed as such on a temporary basis for the performance of functions proper to career officials.”

However, the wording of that article was amended by Law 20/2021, of 28 December, on urgent measures for the reduction of temporality in public employment, in accordance with the provisions of the fourth and fifth clause of Council Directive 1999/70 EC, of 28 June 1999, on the Framework Agreement of the ETUC, UNICE and the CEEP on the fixed-term contract.

The purpose of the above-mentioned Act, as reflected in its preamble, was to amend the regulations governing the status of the interim official by taking action on the following premises: (a) the adoption of immediate measures to remedy the existing high temporality; (b) the articulation of effective measures to prevent and punish abuse and fraud in the future; (c) the empowerment of tools and a culture of planning for better human resources management; and (d) that differences in the legal regime of temporary and permanent staff should be based solely on objective reasons that can demonstrate the need for such differences in order to achieve their end.

Thus, on the one hand, the law aims to reinforce the temporary character of the figure of interim staff.

For this purpose, in its article 1. One includes a new wording of article 10 of the TREBEP, which, underlines the notion of temporality, in order to clearly delineate the nature of the relationship that unites it with the Administration. This is complemented by the provisions of Article 10(1), concerning the appointment and delimitation of the maximum period of time for the appointment:

• In the case of appointment to vacant positions when it is not possible for them to be covered by career officials for a maximum of three years;
• In the case of appointment by substitution, for the time strictly necessary to motivate the appointment;
• In the case of appointment to carry out programmes of a temporary nature, for a maximum of three years, extendable to twelve more months by the public service laws of each Administration, or;
• In the event of excess or accumulation of tasks, for a maximum period of nine months

Thus, the interim official has a temporary link with the Administration, which as a rule will not exceed three years, unlike career staff.

On the other hand, it amends the fifth paragraph, in relation to the fourth clause of the Directive, to provide that:

“The general regime of career civil servants shall apply to interim staff members as far as it is appropriate to the nature of their temporary status and the extraordinary and urgent nature of their appointment, except for those rights inherent in the status of career civil servant.”

On the basis of the above, the question arises as to whether interim officials are entitled to the horizontal career, and there is no other conclusion that this type of staff cannot, per se, be excluded from the horizontal career, but that it must be recognized in the same terms as the official staff.

Interim officials are subject to the general regime of career civil servants in so far as it is appropriate to the nature of their temporary status and the extraordinary and urgent nature of their appointment, except for those rights inherent in the status of career civil servant, on the basis of the provisions of article 10.5 of the TREBEP.

The judgment of the Second Chamber of the Court of Justice of the European Union of 8 September 2011 (Case C-177/2010), which, in deciding a question for a preliminary ruling on Directive 1999/70/EC, requires that any difference in treatment between career officials and comparable interim officials of a Member State be excluded on the basis of the mere fact that they have a fixed-term service relationship, unless objective reasons justify different treatment.

In addition, the judgment of the Constitutional Court 104/2004 (EDJ 2004/58856) insists, also considering Directive 99/70/EC (EDL 1999/66412), that:

"Any difference in treatment must be justified for objective reasons, without being compatible with Art. 14 EC a treatment, whether general or specific in relation to specific areas of working conditions, that sets temporary workers as a group in a second order position in relation to workers on contracts of indefinite duration."

In this regard, the Supreme Court has ruled in Judgment No. 665/2019, of February 25, 2019 and more recently in Judgment No. 2123/2023, of May 10, 2023, stating:

“The following aspects of the service relationship are part of the ‘working conditions’, within the meaning of Clause 4 of the Framework Agreement: remuneration, the Social Security system, holidays, permits and vocational training opportunities, as well as recognition of seniority if the status of a career official is acquired. In these matters, there can be no different treatment of those who are in a non-fixed statutory service relationship with respect to career officials. Nor can there be any different treatment in relation to the "horizontal race", referred to in art. 17 of the Basic Statute of the Public Employee”.

Without prejudice to the foregoing, it should be specified that the recognition of the right under identical conditions implies that interim officials are required for access and promotion in the system of sections to the same requirements as career officials, that is to say: time to provide services, performance evaluation and training required by article 122 of the Royal Decree-Law for the recognition of the horizontal career.

However, as previously stated, since the appointment of interim staff is, as a general rule, restricted to a maximum period of three years, interim staff members would not, in principle, meet the requirements for a horizontal career.

However, in those cases where, due to the nature of the link between them and the administration and their duration, they are able to comply with the requirements, they must be able to accede on an equal basis.

In conclusion, the interim civil servant staff will be entitled to the horizontal career regulated in article 122 of Royal Decree-Law 6/2023 provided that they comply with the requirements indicated in the standard, namely that a minimum period of five years of effective service has elapsed.

All of the above is without prejudice to remember 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, do not have the character of a binding criterion, nor do they give rise to rights or expectations of law, nor do they imply any link with the type of procedures to which they refer. In addition, since they are not mandatory or binding, the bodies to which such replies are addressed may, where appropriate, finally take a decision that does not correspond to the opinion contained therein.

The answers to queries contained in this bulletin deal with the issues raised in the light of the regulations in force at the time of their issuance, so that these answers may be affected by subsequent legislative changes or judicial resolutions.