Consequences of a staff member not taking part in the examination of merits of the place he/she occupies in provisional secondment.

Last update: September 2025

The question raised relates to the situation in which the staff member holding a post in temporary secondment is left if, when the post has been filled by competitive examination, the post is not filled.

In the first place, the legal framework for implementation must be analysed. The fourth final provision of Royal Legislative Decree 5/2015, of 30 October, approving the consolidated text of the Law on the Basic Statute of the Public Employee, differs the entry into force of the provisions relating to the provision of jobs and mobility until the entry into force of the Public Service Laws that are issued in development of the Statute. In accordance with the provisions of the fourth final provision of the TREBEP, which establishes in its second paragraph:

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

Consequently, the provisions relating to the provision of posts and mobility regulated by Law 30/1984, of 2 August, on Measures for the reform of the Public Service and Royal Decree 364/1995, of 10 March, approving the General Regulations on the Admission of Personnel to the Service of the General State Administration and on the Provision of Jobs and Professional Promotion of Civil Servants of the General State Administration, remain in force.

In particular, and with regard to the figure of provisional secondment, it is regulated in article 63 of Royal Decree 364/1995, of 10 March, which regulates the cases in which it is possible.

Provisional secondments constitute an exception to the general regime for the provision of jobs and occur in assessed cases, and since this is an exceptional and temporary case of the provision of jobs, such proviso cannot be lasting in time, so that the posts occupied by this system have to be considered vacant for the purpose of their inclusion in the most immediate ordinary form of provision, without such a formula of provisional secondment being considered an alternative form of provision of jobs, replacing the ordinary procedures of provision (competitive examination and free appointment, in cases where this is appropriate) and can not be justified outside the cases indicated, nor can it be erected into a normal mechanism of superior justice in terms of the subsequent generation.

For this reason, taking into account the exceptional and valued nature of the use of the provisional attachment, Article 72(2) of the same Regulation provides that “Posts covered by temporary secondment shall be summoned for final coverage by the systems provided for in the employment relationships. The officials who perform them will have the obligation to participate in the corresponding calls”.

In conclusion, there is an obligation of the seconded persons provisionally to participate in the corresponding calls for applications for the position they occupy in accordance with art. 72.2 of the Regulation, in this case it is not a question of voluntary participation in a tender for the provision of jobs but of a legal obligation to participate in the corresponding calls and in respect of the position that is provisionally occupied and, therefore, in these cases, the requirement of permanence at final destination for two years to be able to participate is not required.

In the light of the above, the issue raised focuses on the implications for a staff member who does not apply for merit in the position he or she holds on temporary secondment.

As noted, participation in the competition is not voluntary, but the rule does not establish any consequence in the event that the person occupying the place does not show up for the corresponding provision procedure. Without prejudice to this, it is understood that the solution would be to remain in the same situation in which it would remain in the event that it did participate in the contest, but did not obtain the place, in accordance with article 21.2.b) of Law 30/1984, of 2 August, on Measures for the Reform of the Public Service, which establishes:

“Officials who cease to hold one job without obtaining another by the systems provided for in the preceding article shall be at the disposal of the Under-Secretary, Director of the Agency, Government Delegate or Sub-Delegate of the Government or similar bodies of the other Administrations, who shall assign them to the provisional performance of a post corresponding to their Corps or Scale.”

That is, in the event that a temporary seconded person does not apply for the job he or she has been occupying and is occupied by another official, he or she would be at the disposal of the competent body that would assign to him or her the provisional performance of a position corresponding to his or her Corps or Scale.

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.