Obligatory collegiality of public officials

The consultation raises the requirement of the obligatory collegiality of certain professional groups to be able to exercise their activity, in particular, of public employees who provide services for or through a Public Administration. Likewise, it is consulted if the tuition could be a necessary requirement to acquire the status of a career official.

In advance, 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 Enterprise, through the General Directorate of Economic Policy.

With regard to the compulsory membership of civil servants, it should be noted that article 3.2 of Law 2/1974, of 13 February, on Professional Colleges, 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 this is established by a state law, for the exercise of the so-called “collegiate professions” it will be an indispensable requirement to be incorporated as an employee in the corresponding professional college.

However, for the scope 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 will be obligatory to act before the Courts and Tribunals in the terms provided in this Law and by the general legislation on professional associations, unless they act in the service of the Public Administrations or public entities by reason of their dependency in the civil service or in the labour market.”

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

“The specific professional capacity of the members of the Armed Forces to exercise the competencies corresponding to each organizational position will be determined by the tasks of their body, by the powers 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 association being necessary.”

By virtue of the foregoing, it is understood that within the scope of the Public Administrations and under the condition of official or other kind 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 exercise in the corresponding professional college, without the existence of a functional relationship exempting from the fulfillment 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 officer, 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 or requires as a requirement for access to the public service to belong to a certain professional college.

The acquisition of the status of career official is made by entering a certain Body or Scale, after overcoming the corresponding selective process and compliance with the other requirements, requirements among which, as has been pointed out, the law does not include that of belonging to any professional college.

The various 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 that coincide with or are specific to a regulated or collegial profession, such attribution does not usually exclude the possibility that the officials belonging to them may carry out other functions from their own status in the Public Administration.

Likewise, these Bodies can develop functions that, although they are linked to the qualification required for admission, and have a strong link with the corresponding collegiate profession, it is not required for their realization to be incorporated into the corresponding professional college.

It must 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 fact that 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 the exercise of coincidental or specific functions of a collegiate profession, it is the “degree” referred to in the TRLEBEP, understood as the title that allows access to the exercise of the corresponding profession and, therefore, to the collegiate in the corresponding professional college (in accordance with the aforementioned constitutional doctrine); although the requirement of the corresponding official title cannot be confused with the requirement of being incorporated in the condition of an exercise in the corresponding professional college.

Thus, membership of a professional college may not be required as a general prerequisite for acquiring the status of a career officer, even if it is a Corps with functions pertaining to a collegiate profession, and in the latter case, in order to be able to require such collegiation, it must be taken into account the functions pertaining to the job finally occupied by the officer.

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.