Compulsory membership of public officials

The consultation raises the requirement of compulsory membership of certain professional groups in order to be able to carry out their activity, in particular of public employees who provide services for or through a Public Administration. In addition, it is consulted whether collegiality may be a necessary requirement to acquire the status of a career official.

As a preliminary point, it should be noted that the regulation on regulated and collegiate professions and, therefore, the scope and interpretation of these rules, is the responsibility of the Ministry of Economy, Trade and Business, through the General Directorate of Economic Policy.

With regard to the compulsory membership of officials, it should be noted that article 3.2 of Law 2/1974, of 13 February, on Professional Associations, provides that: “It will be a prerequisite for the exercise of the professions to be incorporated into the corresponding Professional College when so established by a state law”.

According to the precept transcribed, the general rule is that, when established by a state law, for the exercise of the so-called “collegiate professions” it will be essential to be incorporated as an employee in the corresponding professional college.

However, at the level of public administrations, certain state regulations have established exceptions to this rule. Thus, article 544.2 of Organic Law 6/1985, of 1 July, on the Judiciary, provides that:

“The collegiality of Lawyers, Attorneys and Social Graduates shall be obligatory to act before the Courts and Tribunals in accordance with the provisions of this Law and the general legislation on professional associations, unless they act in the service of the Public Administrations or public bodies on account of their dependency in employment or employment.”

Another of the exceptions that has been established by the state legislator is the one regulated in article 42 of Law 39/2007, of 19 November, on the military career, which establishes:

“The specific professional capacity of the members of the Armed Forces to exercise the competencies corresponding to each organic position will be determined by the duties of their body, by the faculties of their scale and specialties and by their employment.

This capacity enables, in accordance with the military, academic and professional qualifications held, those who are integrated or attached to each body and scale for the exercise of their competences and the performance of their duties in all those destinations or positions they may occupy, without any other requirement of professional membership.”

By virtue of the foregoing, it is understood that at the level of the Public Administrations and under the condition of official or other class of public employee a “collegiate profession” may be exercised without being collegiate only when a rule with the rank of law dictated by the State so permits; otherwise, when the State legislator does not establish such an exemption, in the light of constitutional doctrine, the exercise of such professions will imply the need to be incorporated as an army in the corresponding professional college, without the existence of a functional relationship exempt from the fulfilment of this requirement.

Notwithstanding the foregoing, it must be borne in mind that registration or not in a professional college is not a necessary requirement to acquire the status of a career official, and a number of considerations must be made in this regard.

The consolidated text of the Law on the Basic Status of Public Employees, approved by Royal Legislative Decree 5/2015, of 30 October (TRLEBEP), makes no mention whatsoever and does not require as a requirement for access to the public service to belong to a certain professional college.

The acquisition of the status of career civil servant is made by entering a specific body or scale, after passing the corresponding selective process and meeting the other requirements, requirements among which, as has been pointed out, the law does not include that of membership of any professional college.

The different Bodies and Scales are usually attributed to the exercise of a series of functions.

In particular, there are certain bodies to which, although they are attributed the exercise of functions coincident or proper to a regulated or collegial profession, such attribution does not usually exclude the possibility that officials belonging to them may carry out other functions from their own status in the Public Administration.

In addition, these bodies may perform functions that, although they are linked to the degree required for admission, and have a strong connection with the corresponding collegiate profession, it is not required for their performance to be incorporated into the corresponding professional college.

It should be remembered that, in addition, it would not be possible to extend this requirement, since access to public employment is configured as a fundamental right by the Spanish Constitution and, therefore, the restrictions that may be established for access must be duly justified so that, when a certain official title is required, it is necessary as a result of the professional skills that it grants are essential to be able to carry out the functions attributed to that Body of officials.

In this sense, in the case of officials whose main function is to perform functions that coincide with or are specific to a collegiate profession, it is the “qualification” referred to in the TRLEBEP, understood as the qualification that allows access to the exercise of the corresponding profession and, therefore, to the collegiation in the corresponding professional college (in accordance with the aforementioned constitutional doctrine); although the requirement of the corresponding official qualification cannot be confused with the requirement of being incorporated in the status of a member of the corresponding professional college.

Thus, it would not be possible to require as a general requirement to acquire the status of career official the membership of a professional college, even if it is a Corps with functions proper to a collegiate profession, and in the latter case, in order to be able to require such collegiation, it would be necessary to attend to the functions proper to the job finally occupied by the official.

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.