Assimilation of a Director of a Public Agency to Director-General for the purposes of the application of the system of compensation for senior officials and members of delegations presided over by them

The question raised concerns the consideration as Director-General for the application of the system of compensation for senior officials and members of delegations presided over by them of the regulations on compensation for service in the case of managers of a Public Agency, in particular, in the consultation formulated, of a State agency.

To this end, it is necessary to analyze the provisions of Royal Decree 462/2002, of May 24, on compensation for service, as well as Law 40/2015, of October 1, on the Legal Regime of the Public Sector.

Article 8 of Royal Decree 462/2002 provides that:

“1. The members of the Government of the Nation, Secretaries of State, Heads of Mission accredited as residents to a foreign State or international agency, Under-Secretaries, Generals and Admirals Heads of Regions and Military, Maritime and Air Zones and positions assimilated to the above in accordance with the applicable regulations when they perform any of the functions that, according to this Royal Decree, entitle them to compensation, shall be compensated for the exact amount of the expenses incurred that are necessary for the exercise of the aforementioned functions, according to the documentary justification thereof. This compensation regime may be expressly authorized on each occasion by the Ministers in relation to the managerial staff under their functional unit with the rank of Directors-General or assimilated.

However, the service commissions regulated in the previous paragraph when they are performed by personnel under the functional unit of the Minister of the Presidency shall be governed by the specific regulation that is agreed in the manner provided in the sixth additional provision of this Royal Decree.

The personnel referred to in the preceding paragraphs may freely choose to avail themselves of the compensation regime regulated in general in the corresponding rules of this Royal Decree and according to its classification in Annex I thereof, without prejudice to the fact that the authority that orders the commission, in certain cases of an extraordinary nature, may order that one or other regime be applied compulsorily, without possibility of option.

2. Those who act in the commission of services as part of official delegations presided over by the high offices referred to in the previous section of this article, will not receive any type of compensation, being compensated for the exact amount of the expenses incurred by them according to the documentary justification of the same visas in accordance with the high office presided over by the commission itself, or by the commissioner with the rank of at least Deputy Director General or equivalent to whom such function is entrusted in the case of commissions presided over by members of the Government of the Nation, and within the concepts regulated in this Royal Decree.

3. The staff acting in committee of services forming part of official delegations presided over by Directors-General, or by the holders of the highest organs of the management of public bodies with rank equivalent to those, notwithstanding the provisions of article 10 of this Royal Decree shall receive the compensation of the group corresponding to the aforementioned high offices, without, in any case, applying to them the compensation regime regulated in paragraphs 1 and 2 of this article.”

In accordance with the provisions of this article, it can be understood that, for the purposes of this regulation of indemnities for reasons of service, the Official Delegation is the one that is presided over by the high offices described in article 8 paragraph 1 of Royal Decree 462/2002 and by Directors-General or assimilated.

This means, in the opinion of this Center, that the group chaired by any of the above-mentioned senior officials and sent for the performance of tasks that they must perform outside the municipal term where their official residence is located is considered to be the official Delegation, being understood as the municipal term corresponding to the office or unit in which the activities of the usual job are carried out.

With regard to the equalization of the managerial staff of a Public Agency with the Directors-General for the purposes of the compensation regime of Royal Decree 462/2002, it should be noted that managerial staff is a category of personnel provided for in Law 40/2015 in different articles referring to public agencies. Specifically, the art. 106.2.a) for corporate public bodies or Art. 108 quáter.1.d) and .10 for state agencies. This figure currently corresponds, for the State Administration, to the concept of professional public manager, regulated in Title IV of Royal Decree-Law 6/2023 of 19 December, which approves urgent measures for the implementation of the Plan of Recovery, Transformation and Resilience in the field of public service of justice, public service, local regime and patronage. This rule provides, in its art. 123.6, that "The professional public managers of the public institutional state sector, included in the scope of this book, shall be regulated by their specific regulations and alternately by the provisions of this title."

In particular, in the case of State agencies, in accordance with Article 108 quater.10, these are personnel, “occupying the jobs determined as such in the Statute of the same in view of the special responsibility, technical competence and relevance of the tasks assigned to them” whereas the Directors-General are those who, according to art. 66.1 of Law 40/2015, “are the heads of the governing bodies responsible for the management of one or more functionally homogeneous areas of the Ministry”.

The forms of appointment and dismissal of both groups are different, as well as their consideration of high office or the administrative situation in which those who are civil servants remain. Thus, it should be noted that the management of the agencies is not granted the status of high office by Law 40/2015 and expressly states that in the event that they are officials they will remain in active service. In addition, it should be noted that, in accordance with the provisions of art. 123.3, “Persons holding the Subdirectorates-General shall be considered professional public managers, in accordance with the provisions of article 67 of Law 40/2015, of 1 October”. Assistant Directors-General who, according to this rule, do not have the status of high office.

Therefore, it is not appropriate to assimilate by interpretative means the managerial staff of a Public Agency to Director-General.

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.