Possibility of occupation of posts in the civil administration by military personnel

Consultation is carried out on the possibility that the personnel of the Armed Forces can provide services in the Civil Administration of the State in those positions of the employment relations of the different ministerial departments open for their performance by military personnel, in some administrative situation other than that foreseen in article 113 bis of Law 39/2007, of 19 November, on the military career, added by article 29.tres of Law 15/2014, of 16 September, on the rationalization of the Public Sector and other administrative reform measures (Official State Gazette, number 226, of 17/09/2014).

On the other hand, a report is also requested on the possibility that personnel of the Armed Forces may temporarily take up employment in the civil administration, either on secondment or on secondment, when this is not one of the destinations provided for in article 99 of the Military Career Act.

With regard to the first of the questions raised by the consultant, concerning the possibility that the personnel of the Armed Forces may serve in the Civil Administration in posts of the TPNs of the various ministerial departments open for performance by military personnel, the following observations are made:

Law 15/2014, of 16 September, on the rationalization of the public sector and other administrative reform measures, has gone on to regulate the presence of military personnel with a stable character in the civil administration, creating for this a specific administrative situation of active service in the civil administration. As the law itself states, the legal regime of application to this personnel will be that provided for in Law 7/2007, of April 12, of the Basic Statute of the Public Employee (EBEP), currently, in the consolidated text of the Law of the Basic Statute of the Public Employee (TRLEBEP) approved by Royal Legislative Decree 5/2015, of October 30.

In view of the implementing regulations, it must be concluded that, with the sole exception of the provisions of article 99 of Law 39/2007, of 19 November, on the Military Career, there is no other administrative situation for military personnel than that provided for in the current article 113.bis of the aforementioned legal text, by which these personnel can perform functions in the positions of the Civil Administration's job relations.

With regard to the second issue, concerning the possibility that Armed Forces personnel may temporarily take up employment in the civil service, either on temporary secondment or on secondment, when this is not one of the destinations provided for in article 99 of the Military Career Act, the following should be noted:

The eleventh additional provision of the TRLEBEP regulates the access of military personnel to the Civil Administration in the following terms:

“1. Military career personnel may provide services in the civil administration under the terms established by each Public Administration in those jobs in which this possibility is specified, and of those that are awarded, in accordance with the principles of merit and capacity, prior participation in the corresponding public call for the provision of such positions, and prior compliance with the requirements that may be established for this purpose by the Ministry of Defense.’

2. (…) When there is a cessation, removal or elimination of civil administration jobs that they have been performing, they must rejoin the military administration in the appropriate situation, without applying the criteria existing in these cases for civil servants.”

In the light of the above precept, it is concluded that the legal regulation in relation to the issue raised is clear in this regard, being essential, when it is not one of the destinations provided for in article 99 of the aforementioned Military Career Law, the permanent occupation of the post specifically open to military personnel and therefore without there being a performance by these personnel through other formulas such as the provisional occupation of the post in provisional secondment or in commission of services, formulas that are applicable to civilian personnel.

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.