Validity of the duty of residence of civil servants

The issue raised concerns the validity of the duty of residence of civil servants.

To this end, first of all, it is necessary to refer to the legal framework of application, which is constituted, in addition to the Constitution itself, by the Articulated Text of the Law on Civil Servants of the State, approved by Decree 315/1964, of February 7 (LFCE, from now on), the Consolidated Text of the Law on the Basic Status of Public Employees, approved by Royal Legislative Decree 5/2015, of October 30 (TRLEBEP, from now on) and the different rules that will be indicated below.

Thus, the first paragraph of article 19 of the Constitution proclaims that "Spaniards have the right to freely choose their residence and to move around the national territory." But the duty of residence is one of the elements that has traditionally shaped the status of public officials. And its validity must continue to be affirmed in the terms that will be developed next, since it finds its basis in the need to guarantee the correct and adequate provision of the public service that corresponds to them and, ultimately, the fulfillment of the constitutional mandate to serve objectively the general interests, effectiveness, hierarchy, deconcentration, and coordination with full submission to the law and the law, in accordance with article 103 of the Constitution.

Likewise, the art. 77 of the LFCE states:

“1. Officials must reside in the municipal area where the office, unit or place where they provide their services is located.

2. For justified reasons, the Assistant Secretary of the Department may authorize residence in a different place, provided that this is compatible with the exact performance of the duties of the office.”

Despite the fact that the TRLEBEP has expressly repealed Article 77 LFCE, an article that includes the duty of residence, this duty remains in force under the provisions of the Single Derogatory Provision of the TRLEBEP, which states that “They are repealed with the scope set forth in the fourth final provision.”

Consequently, on the contrary, the precepts of the previous regulations, even repealed, will remain in force “until the Civil Service Laws and regulations for development are enacted” and “as long as they do not oppose the provisions of this Statute”.

Therefore, although the conclusion that will be indicated later is advanced, it must be understood that the duty of residence provided for in Article 77 of the LFCE, as long as it does not oppose the provisions of the TRLEBEP, remains in force, provided that it is interpreted in the terms that will be indicated later.

It should also be noted that there are explicit references to the duty of residence in regional public service regulations, which will be applied in their specific field.

On the other hand, it should be noted that the specific regulation of certain groups of civil servants makes express reference to the duty of residence. In particular, and not exhaustively, the following should be highlighted:

In the case of the Armed Forces, Organic Law 9/2011, of July 27, on the rights and duties of members of the Armed Forces, includes in its art. 23, dedicated to “Residence and domicile”, the following:

“1. The place of residence of the soldier will be that of the municipality of his destination. It may also be a different one provided that the proper fulfilment of its obligations is ensured, under the terms and conditions established by order of the Minister of Defence.

2. The soldier has the obligation to communicate in his unit the place of his habitual or temporary domicile, as well as any other personal data that makes possible his location if the needs of the service require it.”

For its part, Royal Decree 517/1986, of 21 February, on incompatibilities of military personnel, states in its art. 16.2 that “The exercise of any compatible activity will not serve as an excuse to the duty of residence, to the assistance to the workplace that requires the position or position, to the delay, negligence or neglect in the performance of the same, nor the impairment of the fundamental duty of permanent availability of the military for the service”.

In addition, it should be remembered that both in Organic Law 8/2014, of December 4, on the Disciplinary Regime of the Armed Forces (art. 5) and in the Military Penal Code (art. 56.1) Violations of the duty of residence, ranging from a minor offence to an offence in the case of abandonment of the destination or residence, are criminalized.

In the case of the National Police, Organic Law 9/2015, of July 28, on the Personnel Regime of the National Police establishes in its 9.s) the obligation to: “Reside in the territorial area that is determined according to the destination template. To this end, the objective criteria will be established on the basis of which this territorial area will be determined, where the residence of the National Police will be authorized, guaranteeing, in any case, the proper fulfillment of the service.”.

For its part, in the case of the Civil Guard, Organic Law 11/2007, of October 22, regulating the rights and duties of members of the Civil Guard, in its article 21, "Residence and domicile", points out the following:

"1. Provided that the proper fulfillment of professional obligations is ensured, the establishment of domicile in a municipality other than the one of destination may be authorized, under the terms and conditions established by the regulations.

2. The Civil Guard will have the obligation to communicate in his unit the place of his habitual or temporary domicile in order to facilitate his location. In any case, the means of localization must be provided that allow any Civil Guard to meet their professional obligations in a timely manner."

It is also worth mentioning in this regard Royal Decree 274/2018, of May 11, which regulates the residence, travel and location of Civil Guard personnel.

The duty of residence is also present in other regulations. Thus, Article 20 of Law 53/1984, of 26 December, on incompatibilities of personnel in the service of Public Administrations, which establishes:

“2. The exercise of any compatible activity will not serve as an excuse to the duty of residence, to the assistance to the workplace that your position or position requires, or to the delay, negligence or neglect in the performance of the same. The corresponding faults will be classified and punished according to the rules contained in the applicable disciplinary regime, the authorization or recognition of compatibility being automatically revoked if in the corresponding resolution it is classified as a serious or very serious fault.”

On the other hand, Article 3 of Royal Decree 462/2002, of 24 May, on compensation for service, establishes:

“1. Service commissions with the right to compensation are those special tasks that are circumstantially ordered to the staff included in the previous article and that must be carried out outside the municipal term where their official residence is located, being understood as such the municipal term corresponding to the office or unit in which the activities of the usual job are carried out, unless, expressly and according to current legislation, the residence of the staff has been authorized in a municipal term other than that corresponding to that job and is recorded in the order or passport in which the commission is designated.

Such authorization does not alter the concept of official residence, so under no circumstances may the habitual movement from the place where the person is authorized to reside to that of the workplace be considered a service commission, even if these are in different municipal terms.”

This rule also refers to the duty of residence, emphasizing the idea that, ultimately, the choice of the official in his place of residence should not be a burden for the Administration, explaining that under no circumstances may the habitual movement from the place chosen by the official to the workplace be considered a service commission.

From a systematic interpretation of the set of rules mentioned, it follows that the duty of residence has a medial character in that it fulfils the function of allowing civil servants to correctly carry out the functions constitutionally attributed to the Administration itself and finds its basis, precisely, in guaranteeing the correct provision of the public service that corresponds to such personnel.

In this regard, as indicated by the Constitutional Court in its Judgment 102/2001 of 23 April, “There are members of certain groups who, by virtue of their role in the service of a constitutionally relevant objective, are subject to specific and legally stricter limitations on their fundamental rights, not applying only the limits common to all citizens”in relation, inter alia, to the fundamental right to freedom of residence.

However, it is understood that in the context of relations of special subjection or special supremacy, which is the qualification traditionally given to the existing relationship between the public official and the Administration in which he/she provides services, a practical concordance must be achieved: neither can fundamental rights be sacrificed for the sake of the special subjection relationship, nor can the role of the special subjection relationship be made impossible by them.

That is, it is necessary to achieve a point of balance that allows, in the most effective way possible, to meet the objectives that pursue both premises. Hence, the obligations as a public servant must necessarily be seen in the light of fundamental rights; and these must be exercised, when holding the status of public official, in such a way that they do not conflict or contradict the duties, burdens and obligations entailed by the public service.

Thus, as has been indicated, the duty of residence has been considered as part of the legal regime applicable to civil servants, sometimes expressly, as happens in the LFCE; and other times tacitly, as happens in certain matters in which the duty of residence is fundamental to determine its scope: incompatibilities (STS of 5 November 1996), applicable tax regime (STS of 21 March 2005), urban leases (STC 167/1997, of 13 October), compensation for service reasons or permits and licenses, disciplinary regime, among others.

On the other hand, as reiterated jurisprudence has shown, the duty of residence imposed on officials does not conflict with the fundamental right contemplated in article 19 of the Spanish Constitution (among others, SSTS of February 22, 1985 and February 17, 1992; SAP Santa Cruz de Tenerife of December 21, 1993).

It should not be forgotten that civil servants, without prejudice to their status as citizens, have yet another status, that of public officials, a category that they voluntarily assume and which, taking into account the functions and powers they exercise and the interests they manage, also implies the assumption of a legal regime that will guarantee the correct and strict performance of their duties without the Fundamental Rule being invoked in order to arbitrarily breach the obligations that are valid and freely assumed.

However, in the light of the Fundamental Rule, the duty of residence will be admissible as long as it is imposed, either by a rule with the rank of law, or it can be deduced from the need for effectiveness in the performance of the position or from the uniqueness of the public function that is performed.

Based on these premises, the various regulations of the Public Service that have been approved in recent times, have been contemplating the duty of residence, not so much from a formal point of view, but from a material perspective.

Thus, the latest rules that have appeared in the legal system link the duty of residence to the strict fulfilment of the day, time and functions of his office, allowing the personal residence of the official not to coincide with the official residence, understood by the latter to be that of the municipality or locality in which the headquarters, dependency, office or locality of the Administration or Agency in which he provides services is located, provided that it is guaranteed that the residence in another municipality or locality will allow the correct performance of his functions and will not entail a loss or impairment of the public service.

In addition, the establishment of residence in a location other than that of the place where the headquarters, office, office or place where it provides services is located cannot lead to the alteration of the legal regime applicable to them (incompatibilities, permits and licences, compensation for the service), obtaining more beneficial treatment than would be appropriate for them if they had their personal residence in the same place as their official residence.

Likewise, it is understood that, in any case, it may be possible to prevent the establishment of residence in a municipality or locality other than the one of destination, those officials who have been performing jobs that, according to their characteristics, are considered an essential element for their correct provision, proximity to the workplace, thus avoiding that, although elements that may alter the daily life of the said locality (traffic, natural disasters, environmental factors, general strikes, public disorder, states of emergency, etc.) concur. Do not prevent the staff member from continuing to provide the service.

Based on the above, it has been understood that, although TRLEBEP has expressly repealed Article 77 LFCE, which includes the duty of residence, this duty remains in force under the provisions of the Single Derogation Provision, already indicated. Thus, the duty of residence provided for in Article 77 LFCE, insofar as it does not conflict with the provisions of the TRLEBEP, remains in force, provided that it is interpreted in the terms set forth, that is, in any case, residence in a different locality or municipality, must guarantee the strict performance of the day, time and functions of their office, and may not involve the alteration of the legal regime that results from its application (incompatibilities, permits, licenses, indemnities for reasons of service), obtaining more beneficial treatment than would be appropriate for them to have their personal residence fixed in the same place as their official residence.

In addition, it should be recalled that different rules applicable to certain groups of civil servants expressly make a complete configuration of the duty of residence, as is the case with the regulation applicable to the Armed Forces.

Therefore, and by way of summary, without prejudice to the fact that the duty of residence is qualified according to the belonging to certain groups or according to the functions entrusted to them, as in the case of the Armed Forces, in the event that the official staff reside in a municipality other than the one in which the office or unit in which the activities of the usual job are carried out is located, the criterion indicated above must be applied, that is, that the residence does not compromise the timely fulfilment of the duty related to the provision of the service and, in particular, the day, time and functions of its office, not imposing additional burdens on the Administration.

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.