Possibility of making the provision of services and consequent remuneration compatible in any of the Spanish Public Administrations as a career official of a Corps or Scale of any of them with the perception of retirement as an official of the European Union.

The question raised concerns the possibility of making the provision of services in any of the Spanish Public Administrations compatible as a career official of a Corps or Scale of any of them with the perception of retirement as an official of the European Union.

In matters similar to the one raised, it is necessary to highlight the criterion that has been established in this regard by the Office of Conflict of Interests.

Thus, the Office of Conflict of Interest understands the following:

"When Law 53/1984 uses the expression "Public Administrations", it is referring only to the Spanish Public Administrations: that is, to the General Administration of the State, to the Administrations of the Autonomous Communities, and to the Entities that make up the Local Administration. That is, to the same Public Administrations referred to in article 2" of Law 30/1992, of November 26, on the Legal Regime of Public Administrations and Common Administrative Procedure, article 1.2 of Law 29/1998, of July 13, regulating the Contentious-Administrative Jurisdiction or those mentioned in article 17 of Law 30/1984, of August 2, on measures for the reform of the Public Service.

As is evident from the whole articulation of Law 53/1984 itself, and can also be seen in the debate of the whole project of what would later be this Law 53/1984, in which the Minister of the Presidency who presented the project – page number 4376 of the Bulletin of the Congress of Deputies no. 92, of February 15, 1984, pointed out that the project "affects all the Administrations: the State Administration, the Autonomous Administration and the Local Administrations", which, on the other hand, seems logical taking into account the general rule of territoriality of the administrative rules. A general rule of territoriality requiring that interpretations that would lead to absurdity be ruled out, such as that of understanding that Law 53/1984 is also applicable to officials in the service of the European Communities for the simple fact that, without further specification, Article 2(1)(j) includes in its scope, the "remaining staff to whom the statutory regime for public officials applies", and that such officials in the service of the European Communities are also subject to a "statutory regime" for "public officials", such as the Staff Regulations of Officials of the European Communities.

In addition, consider how Article 10(2) of Law 53/1984, which concerns us, could be applied if remuneration had to be abolished or suspended in a non-Spanish Public Administration; or how Article 10 of Law 53/1984 could be applied, which establishes that if a new position of the public sector incompatible with the one being held without exercising an option is accessed, it will be changed "to the situation of voluntary leave in which they were held": when Article 29.2.b) of Law 30/1984 establishes that if the status of official is acquired in the service of international or supranational organizations, it will be changed "to" the situation of special services.

Furthermore, how could the Spanish legislator intend to establish, as expressed in the preamble to Law 53/1984, and with regard to the general regime of incompatibilities, "a uniform approach between the different Public Administrations that also guarantees to the interested parties a common treatment between them", if within the concept of "Public Administrations" were also understood non-Spanish Public Administrations?

On the other hand, nothing would have prevented Law 53/1984, which is something quite different, from having expressly conditioned the collection of remuneration from the budgets of the Spanish Public Administrations, to no other remuneration being received from an international or supranational Organization, but it has not done so.

For all these reasons, it is considered that article 1.2 of Law 53/1984, which establishes that no more than one remuneration may be received, except in the cases provided for in this Law, from the budgets of the Public Administrations, does not prevent the official who has to re-enter active service in a Spanish public administration from simultaneously receiving his remuneration as an active official of that administration with the monthly compensation provided for in article 4(1) of Regulation No. 1746/2002, of 30 September, of the Council of the European Union.

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With regard to article 3, paragraph 2, of Law 53/1984, which establishes that the performance of a job in the public sector, delimited in the second paragraph of article 1, paragraph 1, is incompatible with the receipt of retirement or retirement pension for Passive Rights or for any public and compulsory social security regime, the receipt of the pension being suspended for the duration of the performance of the job, without affecting its updates, for the same reasons already explained, it is considered that the same thing happens. In other words, it refers only to the receipt of retirement pensions from the Spanish social security system. It is therefore understood that Article 3(2) of Law 53/1984 does not prevent an official who has to re-enter active service in a Spanish Administration from making his job compatible with the receipt of a retirement pension from the budget of the European Communities. Otherwise, there is no question of how the Spanish legislator could force the suspension of the receipt of the pension from another State or, as in the case in question, from the budget of the European Communities.

It seems clear that the receipt of the retirement pension from the budget of the European Communities is not subject to more limitations or incompatibilities than those provided for in Community legislation itself (legislation that takes precedence over any other national legislation) and therefore, to the provisions of Article 40 of Annex VIII to the Staff Regulations of Officials of the European Communities, the second paragraph of which, as amended by Regulation 723/2004 of 22 March, of the Council of the European Union, provides that "The retirement pension or invalidity allowance may not be accumulated either with the receipt of a salary from the general budget of the European Union or the Articles 41. Likewise, they will be incompatible with any remuneration derived from a mandate in one of the institutions or agencies.

Consequently (…) the criterion of this Office of Conflicts of Interest is that Law 53/1984 does not prevent the official who has to re-enter active service in a Spanish Public Administration from concurrent the receipt of his remuneration as an active official of that Administration with the receipt of the retirement pension from the budget of the European Communities and that the retirement pension received from the budget of the European Communities, has no more limitations or incompatibilities than those provided in the regulations of the European Community itself.”

To what is indicated in the report of the Office of Conflicts of Interest, it should be added that the consolidated text of the Law of the Basic Statute of the Public Employee, approved by Royal Legislative Decree 5/2015, of 30 October, does not establish as one of the causes of the loss of the status of civil servant that of retirement as an official of the European Union, so it must be understood that it refers exclusively to retirement as an official of a Body or Scale of any of the Spanish Public Administrations included in the scope of application of the TRLEBEP.

For all the above, it is concluded that the provision of services and consequent collection of remuneration in any of the Spanish Public Administrations as a career official of a Corps or Scale of any of them is compatible with the collection of retirement as an official of the European Union.

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.