Recognition of triennials accrued in a public corporate entity by a career staff member who is in a special service position for performing the post of Director-General.

The issue raised concerns the recognition of triennials accrued in a public corporate entity by a career civil servant who is in a special service position for performing the post of Director-General.

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 Law 30/1984, of 2 August, on Measures for the Reform of the Public Service (Law 30/1984, hereinafter).

The TRLEBEP regulates the administrative situation of special services in its article 87. The second paragraph of the aforementioned article states the following:

“Those who are in special service shall receive the remuneration of the position or position they hold and not those corresponding to them as career officials, without prejudice to the right to receive the trienniums they have recognized at any given time. The time they remain in such a situation will be counted for the purposes of promotion, recognition of trienniums, internal promotion and rights in the Social Security regime that is applicable to them. It shall not apply to public officials who, having entered the service of the European Community institutions, or of assimilated Entities and Bodies, exercise the right of transfer established in the Statute of Officials of the European Communities.”

For its part, article 29.3 of Law 30/1984 (which continues to apply as explained in the Resolution of 21 June 2007 of the General Secretariat for Public Administration, which publishes the Instructions for the application of the Basic Statute of the Public Employee in the field of the General State Administration), in relation to the situation of voluntary leave for the provision of services in Public Sector Agencies or Entities, states:

“Surplus officials shall not earn remuneration, nor shall the time spent in such a situation be computable for the purposes of promotion, triennials and passive rights.

Notwithstanding the provisions of the preceding paragraph, the period of provision of services in public sector bodies or entities shall be calculated for three years, with the exception of those provided in commercial companies in whose capital the direct or indirect participation of the Public Administrations is the majority.”

Accordingly, the issue should focus on the possibility that triennial recognition can be carried out from the special service situation.

In this regard, in accordance with the provisions of article 87.2 of the TRLEBEP, for the situation of special services, as with the situation of active service, the norm recognizes the recognition of trienniums, and their perception, during the time they remain in the aforementioned situation.

On the other hand, the applicable regulations do not establish the need to be in an active service situation so that the period of service provision in public sector bodies or entities provided for in article 29.3 of Law 30/1984 can be recognized for the purposes of trienniums.

In this regard, it follows that, for the purposes of recognition of the trienniums of the said period of voluntary leave for the provision of services in the public sector, both the situation of active service and the situation of special services are adequate to produce the said effect.

If both situations are effective for the recognition, accrual and perception of the triennials for the periods of time that the official is in them, it is not understood, especially in consideration of the lack of a legal provision in this regard, that the situation of active service is adequate for the recognition for the purposes of triennials of the period of voluntary leave for the provision of services in the public sector, and not the situation of special services. When in both, as has already been pointed out, the same effects occur without any distinction, that is, the recognition, accrual and perception of such remunerative concepts.

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.