Recognition of a three-year term to an official in committee of services in an Autonomous Community, as well as in the case of being in situation of special services.

A report is requested on the body competent for the recognition of the triennium of an official in a Service Commission in an Autonomous Community and also in the case of officials in special services in an Autonomous Community.

In the first case, according to the information provided, the interested party holds the status of official of the General Administration of the State and is providing services on a commission of services in an Autonomous Community.

The service commission is a form of temporary provision, for reasons of urgent and unpostponable need, of a job. It is not one of the systems for the provision of jobs contemplated in Chapter III, Title V of the consolidated text of the Law on the Basic Status of Public Employees approved by Royal Legislative Decree 5/2015, of 30 October (TRLEBEP). In particular, the Law only provides for competitive examination and free appointment, so that the transition to the status of service in other Public Administrations would be given, in addition to the transfer processes, because the official obtains a permanent position by one of these systems, as expressly provided for in article 88(3) of the aforementioned Law:

“Career officials in the situation of service in other Public Administrations who are in such a situation because they have obtained a job through the systems of provision provided for in this Statute, are governed by the legislation of the Administration in which they are effectively assigned and retain their status as an official of the Administration of origin (…)”.

This same provision would be confirmed by Article 84(3), devoted to mobility between public administrations, in which it is only a matter of competition and free appointment.

Therefore, while the Service Commission may continue to be a valid means for the urgent and temporary provision of a certain job, it is understood that it does not bring about a change in the administrative situation of the staff member.

However, once this point has been defined, it is necessary to take into account that the official who goes on, in committee of services, to work in another Public Administration, although he maintains the reserve of the work in his Administration of origin, and in respect of it, formally remains in active service, this does not mean that it does not apply the regulations of the Administration in which he provides services effectively.

The transition to a job, even temporarily in another Public Administration, implies that the official becomes governed, from that moment, and at least in terms of the performance of his job, by the legislation of the Administration of destination; otherwise, it is easy to see that the commission of services would be meaningless in this case.

One of the extremes associated with the performance of a job is the remuneration inherent in it. Among these are the basic salaries that, according to current legislation, are characterized by being the same for all officials, regardless of the Public Administration in which they provide services, and having the same amount according to the group or subgroup in which the corresponding Body or Scale is classified.

Therefore, the rules of accrual and recognition are necessarily the same in all administrations; which is predicable, in particular, of the trienniums.

In this sense, and according to the above, it is understood that both the recognition of the triennials and their payment must be carried out by the Administration where services have been provided effectively, since they accrue only as a result of the provision of services, in particular, “for every three years of service” (article 23.b) TRLEBEP).

In the Home Administration, the official has a job reserved for him, but the services at that time are not provided in that Administration, but in the Administration in which he is commissioned; therefore, it must be the latter, the Home Administration, which performs the recognition and payment of the triennials.

Therefore, it is considered that the recognition and payment of the triennials must be carried out by the Administration in which the official has been effectively providing services.

On the other hand, it also asks who is the competent body for the recognition of trienniums in the case of an official in an administrative situation of special services.

In this case, it is advisable to remember the distinction between recognition and subscription. Thus, article 87.2 of the TRLEBEP states in its first paragraph that “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 time.”

Likewise, the first paragraph of article 8 of the Regulation on administrative situations of civil servants of the General Administration of the State, approved by Royal Decree 365/1995, of 10 March, in force in accordance with the provisions of the fourth, third paragraph, final provision of the TRLEBEP, according to which:

“A staff member in a special service situation shall be remunerated for the actual post or position he or she holds and not for the actual post or position he or she holds as a staff member. Exceptionally, and when the remuneration for the trienniums recognized could not, for legal reasons, be received from the corresponding budgets, they must be paid in this respect by the Department in which they held their last position in active service.”

From the examination of the above precepts, it can be deduced that the official who has been declared in special services must receive the trienniums from the budget of the Administration where he/she has been performing the post or position that has led to his/her being declared in that administrative situation, except for legal impossibility that must be duly accredited, in which case they would be received from the budget of the Department or Agency to which the last job performed in active service corresponds.

However, as noted, one issue is the payment of the trienniums, the rules of which would be those set forth, and another issue is the recognition of the trienniums.

Triennials are a remuneration linked to the provision of services as an official, in other words, a recognition of seniority and, therefore, although it has a retributive significance, it must be considered as a right ad personam This would be deduced from article 87.2 of the Code of Civil Procedure, which allows it to be perceived even when a post or position has been filled that has given rise to a special service situation.

Therefore, their recognition comes from having the status of a career official and being in one of the administrative situations that allow their accrual.

It is understood that, in this case, based on the character of personal right linked to the status of official who holds the three-year term, therefore, remuneration not linked to the position or position he/she holds in the situation of special services, its recognition must be made by the competent organ within the Department or Agency of the last job held in active service, who must verify at each time that the requirements of time and administrative situation necessary for its accrual occur.

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.