Application for swap and other mobility assumptions.

Last update: September 2025

The question raised is about the situation of an official who requested the transfer to a province, which is where a family member who suffers health problems resides, but in view of the impossibility of being able to attend to such a request, the transfer was made to a different province of the same Autonomous Community.

The possibility of changing the current destination with a destination in the province in which the transfer or other mobility options were requested from origin before two years after taking office is considered.

In the first place, the legal framework for implementation must be analysed. Article 78.3 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) establishes that “Public Service Laws enacted pursuant to this Statute may establish other procedures for provision in the cases of mobility referred to in Article 81.2, commuting between jobs, mobility for reasons of health or rehabilitation of the civil servant, re-entry into active service, cessation or removal from jobs and suppression thereof.”

For its part, the Fourth Final Provision, paragraph 3, of the TREBEP states that,

“3. Pending the enactment of the Civil Service Laws and the development regulations, the existing regulations on the management, planning and management of human resources shall remain in force in each Civil Service as long as they do not conflict with the provisions of this Statute.”

Accordingly, the existing regulations on the management, planning and management of human resources remain in force until the Civil Service Acts and the development regulations are enacted, as long as they do not conflict with the provisions of this Statute.

In this regard, it should be understood that article 62 of Decree 315/1964, of 7 February, approving the Articulated Text of the Civil Servants of the State Act, relating to the exchange of destinations, remains in force within the scope of the General Administration of the State, the wording of which is as follows:

“1. The Assistant Secretary, in his Department, and the Vice-President of the Higher Personnel Commission, in the case of separate ministries, may exceptionally authorize the exchange of destinations between staff members on active or on special leave, provided that the following circumstances apply:

a) That the jobs in which they serve are of the same nature and correspond to the same form of provision.

(b) That the staff members seeking the exchange have, respectively, a number of years of service that does not differ from one another by more than five.

(c) That a preliminary report is issued by the heads of the applicants or the respective Under-Secretaries.

2. Within ten years of the granting of a swap, no other swap may be authorised for any of the persons concerned.

3. No exchange may be authorized between officials when any of them has less than ten years to reach the age of forced retirement.

4. The swaps shall be cancelled if, within two years from the date on which they take place, the voluntary retirement of any of the swaps takes place.”

It is a reiterated criterion of this Center to understand that the exchange of destinations is a case of exceptional mobility and discretionary authorization, so that compliance with the requirements established in article 62 of Decree 315/1964, of February 7, does not generate any right in favor of the hypothetical applicant for the requested exchange to occur; however, it goes without saying that it is mandatory that each and every one of the circumstances contained in the precept be given so that the exchange can be authorized.

Consequently, in order to obtain the swap, it is not sufficient to meet the requirements established in the precepts indicated, but the Administration, in use of its discretionary powers in this case, may deny the swap for reasons of duly motivated personnel policy and provided that the discretionary decision conforms to the purpose provided in the rule granting it that power.

Taking into account the above, the question raised focuses on the figure of the swap. In this regard, based on the exceptional nature of the swap, and in relation to the circumstances that must be met, in any case, in order for it to be authorized, the question arises of whether, in addition to the circumstances provided for in article 62 of Decree 315/1964, of 7 February, it must occur that at least two years have elapsed since it obtained the last post definitively, in accordance with the provisions of article 41 of Royal Decree 364/1995, of 10 March, approving the General Regulations on the Entry of Staff into the Service of the General Administration of the State and General Provision of Civil Positions.

In this regard, it should be borne in mind that the two-year period for regular mobility from each final post obtained by competitive examination is established in order to enable the Administration to carry out proper planning and management of staff that allows due attention to the various public services it provides.

In the case of the exchange, there is no transfer of a staff member to another job, leaving the one he/she originally holds vacant, but there is a reciprocal change between two staff members of their respective destinations. Destinations that are “homogeneous”, since they have to comply with the requirements established in article 62 of Decree 315/1964, of 7 February, and that would be covered by officials with “assimilable” professional characteristics, so there would be no alteration, neither in the provision of the service, since both positions would continue to be covered when the simultaneous change of destinations occurred, nor would the quality of the provision of the same be affected, since they are similar professional careers.

Therefore, It is understood that the purpose of the two-year period provided for by Article 41 of Royal Decree 364/1995, of 10 March, is not to be extended to cases of exchange and, therefore, is not presented as a necessary requirement to be able to authorize it.

To a greater extent, in the present case, the places to be changed belong both to the Autonomous Agency Public Service of State Employment, so in compliance with the provisions of article 41 of Royal Decree 364/1995, of 10 March, in the case of a contest it would not be necessary that two years had elapsed since they obtained the last position definitively.

On the other hand, and without prejudice to the carrying out of the swap, other mobility procedures are consulted within two years of taking possession of his last destination.

It should be noted that this requirement is limited to the provision of jobs through competitive examination with one exception. Thus, as already indicated, in accordance with the provisions of Royal Decree 364/1995 of 10 March, 41, it will not be necessary for two years to elapse if it participates in competitions for positions included within the scope of the Secretary of State or, failing that, the Ministerial Department to which the seat it occupies belongs.

Within the formulas of ordinary provision, the requirement of permanence of two years to participate in procedures of free appointment is not established, in accordance with articles 51 and following of Royal Decree 364/1995, of March 10.

On the other hand, there may be the possibility provided in article 64 of Royal Decree 364/1995, of March 10, that is, that the Administration agrees to temporarily cover a place through a service commission. Thus, the cited precept provides as follows:

“When a job becomes vacant, it may be filled, in case of urgent and unpostponable need, on a voluntary basis, with an official who meets the requirements established for his performance in the list of jobs.”

Finally, posts may also be provided through temporary secondment in the cases of article 63 of Royal Decree 364/1995, of March 10, without the requirement of two years having to be met.

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.