Possibility of recognition of the remuneration supplement of high office to official personnel of the General Administration of the State that has occupied a position of an Autonomous Community.

The question raised is about the possibility of recognition of the high-level salary supplement for civil servants of the General Administration of the State who have held a position in an Autonomous Community. In particular, the case that gave rise to the consultation was a female official who had been General Technical Secretary in the Departments of an Autonomous Community.

To this end, it is necessary to analyze the provisions of the Consolidated Text of the Law on the Basic Statute of the Public Employee, approved by Royal Legislative Decree 5/2015, of 30 October (TRLEBEP, hereinafter) and in Law 31/1990, of 27 December, on General State Budgets for 1991 (LPGE 1991, hereinafter).

According to TRLEBEP, the special service situation is an administrative situation in which career officials may find themselves in accordance with the provisions of article 85.1.

The administrative situation of special services occurs when one of the cases provided for in Article 87(1) of the aforementioned law is expressly given.

In this respect, the administrative situation of special services entails a series of effects referred to in the second and third paragraphs of Article 87.

Specifically, for the purposes of the question raised, that is to say, whether the performance of a high-level position entitles the recognition of the degree and the payment of the difference between the destination allowance of the consolidated personal degree and the level corresponding to the Director-General, paragraph 3 of that article states:

“3. Those who are in a situation of special services will have the right, at least, to re-enter the active service in the same locality, under the conditions and with the remuneration corresponding to the category, level or step of the consolidated career, according to the system of administrative career in the Public Administration to which they belong. They will also have the rights that each Public Administration can establish depending on the position that has caused the transition to the aforementioned situation. In this regard, the Public Administrations shall ensure that there is no impairment of the right to a professional career of public officials who have been appointed as senior officials, members of the judiciary or other constitutional or statutory bodies or who have been elected Mayors, paid and full-time, Presidents of Deputies or Island Councils, Deputies or Senators of the General Courts and members of the Legislative Assemblies of the Autonomous Communities. At a minimum, these officials will receive the same treatment in the consolidation of the degree and set of complements as that established for those who have been Directors-General and other senior positions of the corresponding Public Administration.”

In this sense, article 33.2 of the 1991 LPGE regulates the so-called high-level complement for personnel in the service of the General Administration of the State, which establishes that:

"Career officials who, for more than two continuous years or three years with interruption, hold or have held since July 5, 1977 positions in the State Administration or Social Security, within the scope of application of Law 25/1983, of December 26, on Incompatibilities of Senior Positions, with the exception of Cabinet positions with a lower level than that of Director General, shall receive from their reinstatement to active service and for as long as the destination supplement corresponding to their personal degree is maintained in this situation increased by the amount necessary to equal the value of the destination supplement that the General State Administration Act."

This regulation, which, as the Constitutional Court has said (STC 202/2003, of 17 November), is not basic, regulates the so-called high-level complement within the General Administration of the State.

Accordingly, the aforementioned supplement must be understood as an element that is part of the career of the official who has acceded to the situation of special services.

In this sense, the recognition and perception of the aforementioned complement, by the AGE, requires:

• Have been declared in the situation of special services by the AGE or by the Autonomous Community because they are in any of the cases provided in article 87.3 of the EBEP or established by the autonomous regulations.

• In the event that the declaration has been made by the Autonomous Community, that the aforementioned supplement or its equivalent has been recognized by the aforementioned Administration.

• That the official re-enters or enters the AGE and, remain in it, in an active service situation.

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.