Horizontal career application to interim staff.

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 government and patronage, which regulates the horizontal career, applies to interim civil servants.

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

Before addressing the specific issue raised, it is necessary to analyse the legal framework of the horizontal career, as a formula for professional progress.

Article 16 of Royal Legislative Decree 5/2015, of 30 October, approving the consolidated 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 in the progression of degree, category, step or other similar concepts, without the need to change jobs and in accordance with the provisions of Article 17(b) and Article 20(3) of this Statute."

To do this, according to these normative references, (i) they must be valued “The career path and 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 performed 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 stretch and six in the following).
• Evaluation of the professional trajectory, the result of the performance evaluation and accreditation of the training and professional competences.

Therefore, and by the very nature of the figure of the horizontal run, it produces its effects only when the requirements established 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 evaluation of the professional trajectory and 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 expressly justified reasons of necessity and urgency, they are appointed as such on a temporary basis for the performance of duties pertaining 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 the temporary nature of public employment, in accordance with the provisions of clause 4 and 5 of Council Directive 1999/70 EC, of 28 June 1999, on the Framework Agreement of the ETUC, UNICE and CEEP on the fixed-term contract.

The purpose of the Act, as reflected in its preamble, was to amend the regulations governing the status of the interim official by taking the following measures: (a) taking immediate measures to remedy the current high level of temporary assistance; (b) coordinating effective measures to prevent and punish abuse and fraud in the future; (c) promoting tools and a culture of planning for better human resources management; and (d) that differences in the legal status 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 ends.

Thus, on the one hand, the law aims to reinforce the temporary nature 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 emphasizes 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), regarding the appointment and delimitation of the maximum term of the same:

• In the case of appointment to vacant positions when their coverage by career staff is not possible 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 programs 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 staff member has a temporary link with the Administration, which as a rule will not exceed three years, unlike the career staff member.

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

“The general rules governing career staff shall apply to interim staff members insofar as they are appropriate to the nature of their temporary status and to the extraordinary and urgent nature of their appointment, except for those rights inherent in the status of career staff member.”

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

The general regulations governing career civil servants apply to interim officials insofar as they are appropriate to the nature of their temporary status and to 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 and comparable interim officials of a Member State based on the mere fact that they have a fixed-term service relationship be excluded, unless objective reasons justify different treatment.

Likewise, 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 CE a treatment, either general or specific in relation to specific areas of working conditions, that sets temporary workers as a collective in a second order position in relation to workers with 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 form part of the ‘working conditions’ within the meaning of clause 4 of the Framework Agreement: pay, social security, leave, leave 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 statutory service relationship of a non-fixed nature with respect to career officials. There is also no room for different treatment in relation to the "horizontal race", contemplated in art. 17 of the Basic Statute of the Public Employee.”

Without prejudice to the foregoing, it should be pointed out that the recognition of the right under identical conditions implies that interim officials are required for access and promotion in the tranche system to the same requirements as career officials, that is to say: time of service provision, 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 in which, due to the nature of the link that unites them with the administration and their duration, they can meet the requirements, they must be able to access under equal conditions.

In conclusion, the interim civil servants 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 norm, in particular, that a minimum period of five years of effective services has elapsed.

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.