Recognition of previous services – Services provided abroad.

With regard to the objective area covered by Law 70/1978, of 26 December, on the recognition of prior services in the Public Administration (hereinafter, Law 70/1978), Article 1.1 limits the scope of services provided to all services indistinctly provided in:

“the State, Local, Institutional, Justice, Labour and Social Security Administration”.

For its part, Royal Decree 1461/1982, of June 25, which establishes rules for the application of Law 70/1978, of December 26, on the Recognition of Prior Services in the Public Administration, regulates in its article 1 the services computable and the effects thereof:

“1. For the purpose of improvement of trienniums, all services provided by career officials in any of the Public Administrations cited in article 1 of Law 70/1978, of December 26, will be counted, whatever the legal regime in which they have provided them, except those that have the character of mandatory personal benefits.”

Thus, doubts arise in relation to the recognition of services provided at the international level, which are analyzed:

i. Services provided in Public Administrations of the Member States of the European Union.

With regard to the services provided in the Public Administrations of the Member States of the European Union, it should be noted that Law 2/2004, of December 27, on General Budgets of the State for 2005, with effect from January 1, 2005 and indefinite validity, added a new additional provision, the twenty-sixth, to Law 30/1984, of August 2, on Measures for the Reform of the Public Service, which recognizes the services provided in the Public Administrations of any member States of the European Union, as well as to the services provided in those States to which the Treaties are ratified,

“1. The period of service provision in the Public Administrations of the Member States of the European Union, prior to entry or re-entry into the corresponding Bodies and Scales, Classes or Categories of any Public Administrations, except those services that had the character of mandatory benefits, shall be computed for the purposes of trienniums. The calculation established in the preceding paragraph shall also apply to the services provided in the Public Administration of those States to which, by virtue of international treaties concluded by the European Union and ratified by Spain, the free movement of workers is applicable in the terms in which it is defined in the Treaty Establishing the European Community.”

When determining whether the expression “any Public Administration” includes the Public Administrations of the Member States of the European Union, a series of clarifications should be made.

Although the Budget Law for 2005 expressly stated this, Law 70/1978 of 26 December was not amended to allow the periods of service previously covered by Community citizens in the public service of other Member States to be effectively taken into account in the Spanish public service, the Commission decided to file an appeal for non-compliance on 7 May 2004.

The Judgment of February 23, 2006, which resolves the aforementioned appeal (TJCE\2006\55) states that, “based on the case law of the Court of Justice (…), the Kingdom of Spain must ensure that the seniority and professional experience acquired by Community citizens in the public service of another Member State are effectively taken into account and grant them, in this regard, the same rights and advantages in terms of classification and remuneration as those granted to Community citizens who have acquired a similar experience in the Spanish public service”. Similarly, the Judgment recalls that “when a public body of a Member State proposes, when recruiting staff to fill posts which do not fall within the scope of paragraph 4 of that Article, to take into account previous professional activities carried out by candidates in a public administration, that body may not make distinctions, in respect of Community nationals, on the basis that such activities have been carried out in the Member State to which that body belongs or in another Member State”.

Taking into account the legal bases of this Judgment, in the opinion of this Center, a broad interpretation of the concept “Public Administrations” must be made, considering that it includes those bodies or entities that can be understood integrated in the Public Administrations of the Member States of the European Union, for the purposes of recognition of prior services under the provisions of Law 70/71978, of December 26.

Consequently, the services provided by bodies or entities integrated in the Public Administrations of third states may be recognized, provided that they are not services of a mandatory nature, for which it will be necessary that the State in question is a Member State of the European Union or that, under the International Treaty concluded by the European Union and ratified by Spain, the free movement of workers is applicable.

II. The case of the UK.

In the specific case of the United Kingdom, since January 1, 2021, it is not part of the European Union and, therefore, no longer benefits from the principles of free movement of persons, freedom to provide services and freedom of establishment, without having dealt with equivalent in the matter.

In this regard, neither Law 70/1978 nor the Law on General State Budgets for 2005 establish particular regimes for the case in which the nature of the entity in which services are provided is modified from the provision of services until the moment of recognition.

Given the absence of concretion in the regulation, and in accordance with a systematic and teleological interpretative exercise of the norm, it is logical to deduce that the requirements for the recognition of services must be met at the time when they are being provided. Thus, it will be in the time period in which the services were provided in which the requirements of Law 70/1978, and the Law on General State Budgets of 2005 must be met, in particular and in what is of interest in this consultation, that the State in question is a Member State of the European Union.

Asimismo, cabe señalar que el artículo 50.3 del Tratado de la Unión Europea, establece que: “the Treaties shall cease to apply to the State that withdraws from the date of entry into force of the Withdrawal Agreement or, failing that, two years after the notification, unless the European Council, in agreement with that State, unanimously decides to extend that period.”

In accordance with the provisions of the aforementioned precept, the Agreement on the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and the European Atomic Energy Community is produced, which provides for a transitional period ending on 31 December 2020.

Taking into account the aforementioned transitional period, in the opinion of this unit, the services provided in the United Kingdom, as a Member State of the European Union, may be recognised provided that the requirements are met and that they are services provided before 1 January 2021, since, as stated above, the transitional period provided for in the Agreement on the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and the European Atomic Energy Community expired on 31 December 2020.

III. Administrations of other states.

In view of the legal framework outlined above, it is concluded that the recognition of prior services for the purposes of trienniums, effects on which the consultant focuses his questions, is limited to those services performed for bodies or entities whose legal nature is that of the Public Administration of a Member State of the European Union.

IV. Services provided in international organizations.

To determine whether recognition of services provided in international organizations is appropriate, we must analyze whether an international organization could be included in the scope of Law 70/1978, that is, whether it can be considered to be a “Public Administration” for this purpose.

The consequences of the recognition of services mean that the extension of the scope of the regulatory regulation must be considered with restrictive criteria.

In the case of International Organizations, they cannot be automatically included in this concept, for the following reasons:

The Public Administrations in Spain have as fundamental objective the provision of public services through the execution of the policies developed by the governing body of which they depend to comply with the demands of the citizens. In order to guarantee the proper performance of its activities, the legal system generally provides the Administrations with a series of exorbitant powers that it can assert in its relations with the citizens affected by its action, although always within the limits set by the Constitution and laws. Without prejudice to the international relations that it may maintain with other countries, the scope of action of public administrations is limited to a specific territorial area (state, autonomous or local), on which they carry out their activity.

For their part, International Organizations are entities, constituted by an Agreement between several States, that carry out activities for the benefit of the Member States or even for a more general benefit. They carry out their activities within the framework of Public International Law and are subject to the provisions of their member States in their constitutive agreements. Its action does not have to be aimed at the provision of public services and generally takes place in a transnational environment. It is therefore very difficult to subsume an International Organization in the concept of “Public Administration” provided for in Law 70/1978.

However, it must be taken into account that sometimes the services provided in the International Organization were provided “through the Ministry of Foreign Affairs and Cooperation”.

This could mean that the services were provided as an employee of the General Administration of the State and that, therefore, they would be capable of being computed for the purposes of previous services.

To confirm this fact, it will be necessary to determine with whom the interested party was legally linked at the time of providing the services that it intends to be recognized, since, in short, the determining element to establish whether services are to be recognized as “prior services” is that a synalagmatic relationship has been established between the interested party and the Administration in question, in which the interested party provides services to the Administration (from which it benefits) obtaining a remuneration in exchange, paid by the Administration. The dynamics of the missions of an International Organization require the participation of nationals of its member States.

In conclusion, it would not be appropriate to recognize the services provided in the missions of the International Organization as prior services under the provisions of Law 70/1978, of December 26, on the Recognition of Prior Services in the Public Administration. This conclusion is based on two fundamental reasons:

a) The impossibility of subsuming the International Organizations, in the concept of “Public Administrations” provided in article 1 of Law 70/1978.

b) The absence of a statutory or labor legal link between any Public Administration and the interested party at the time of performance of the services that prevents considering that said services were provided by or for any Public Administration and, therefore, that they can be considered as services

i. Exigible documentation.

Finally, reference should be made to the documentation required to certify prior services abroad, in the absence of specific regulations in this regard, it would appear that it would have to be in analogy with national requirements, so that the certifications provided in any case carry the same degree of reliability as comparable national documentation.

With regard to the requirement of sworn translation referred to in the consultation, it seems that the provisions of article 15 of Law 39/2015, of 1 October, on the Common Administrative Procedure of Public Administrations in relation to the language of the proceedings must be applied generally: “The language of the proceedings conducted by the General Administration of the State shall be Spanish (…)”.

Article 144 of Act No. 1/2000 of 7 January 2000 on Civil Procedure, which regulates the processing of evidentiary documents drawn up in an unofficial language, is also relevant here:

“1. Any document written in a language other than Spanish or, where appropriate, the official language of the Autonomous Community in question, will be accompanied by the translation thereof.

2. Such translation may be made privately and, in such case, if any of the parties contests it within five days of the transfer, stating that it is not considered faithful and exact and stating the reasons for the discrepancy, the Judicial Secretary shall order, in respect of the party that there is discrepancy, the official translation of the document, at the expense of the person who presented it.

3. However, if the official translation made at the request of a party proves to be substantially identical to the private one, the expenses derived from it shall be borne by the person who requested it.”

Therefore, it would seem necessary for foreign documentation that seeks to accredit previous services to include, on the one hand, the “legalization” of the document or accreditation certificate, so that, according to the system of “apostille” or the one that proceeds in law, the Spanish Administration is duly justified in its authenticity, and on the other hand, that the document is accompanied by an official translation that allows us to understand its literal meaning.

This, however, will be the body conducting the proceedings, as competent to carry out the assessment of the evidence, which will decide whether, given the specific circumstances surrounding a particular case, it is possible to consider the foreign document as reliable in all its length, formal and material, without requiring that its presentation be in full compliance with the aforementioned points.

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.