As regards the objective area covered by Law 70/1978, of 26 December, on the recognition of previous services in the Public Administration (hereinafter, Law 70/1978), Article 1.1 limits the scope of the services provided to all the services indistinctly provided in:

“the State Administration, the Local Administration, the Institutional Administration, the Justice Department, the Labour Court and the Social Security Department”.

The imprecision of the concept of “Institutional administration” has made it necessary to propose various interpretative guidelines according to the evolution of the institutional public sector.

" (a) Public bodies attached to or dependent on the General Administration of the State, which are classified as:

1. Autonomous bodies.

2. Public corporate bodies.

3. State agencies.

(b) Independent administrative authorities.

(c) State-owned commercial companies.

(d) Consortia.

(e) Public sector foundations.

(f) Funds without legal personality.

(g) Public universities not transferred.”

However, since 1986, the Higher Personnel Commission and the State Attorney ' s Office have reiterated a functional criterion in order to identify which entities or entities by virtue of their functions are part of the specific concept of " institutional administration " contained in Act 70/1978.

This work has been very useful since the organization of the State Administration has continued to evolve through Law 6/1997, of April 14, on the Organization and Operation of the General State Administration and Law 40/2015, of October 1, on the Legal Regime of the Public Sector (hereinafter, Law 40/2015), which has established a new classification of the institutional public sector with a basic character in article 2 and, specifically for the State, in article 84.

In this way, the criterion established by the legal services of the State is that it will be understood to include “all those entities, endowed with their own personality, to which public funds are assigned with the power to administer them and spend them in the management of their own purposes of the Territorial Public Administration that has created them”. In other words, the main idea is that the entities, which are endowed with their own legal personality, have public funds attached with the ability to administer them and spend them on the management of the Territorial Public Administration that created them, are part of the “Institutional Administration”. Generally, it is the relationship of instrumentality that links with the Administration that has created them the essential fact to be included as part of the objective scope of Law 70/1978, since it shows that the purpose or service for whose management were created is an end or service proper to the parent Entity, whose ownership is maintained after the creation of the subsidiary, and whose responsibility for organization and performance remain proper to it. However, on the basis of the above criterion, the Higher Commission of Personnel, in its agreement of 29 July 1986, has also recognized the status of “Institutional Administration” of the services provided in the Bank of Spain, an institution with functional independence and autonomy from which this relationship of instrumentality does not arise, but there is the circumstance that provides services that only the Public Administration had attributed, reinforcing the aspect of its functions in the first place.

Thus, the agreement of the Higher Commission of Personnel of October 27, 1989 establishes that the concept of "Institutional Administration" must include those other public entities that provide services whose organization and development are exclusively attributed to the Public Administration. Likewise, the Higher Personnel Commission has carried out a negative delimitation of the concept of “Institutional Administration” through the exclusion of services provided in state-owned commercial companies. This was provided for in the agreement of 27 October 1989, on the understanding that State-owned commercial companies most of the time do not carry out activities qualifying as a public service or reserved to the Administration, while their actions are carried out in commercial traffic and, therefore, in competition with other private companies, which breaks their instrumental character with regard to the provision of a public service.

In this way, it will be necessary to analyze in each specific case whether the entity in which the services that are intended to be recognized have been provided can be considered Institutional Administration and, therefore, is within the objective scope of Law 70/1978.

Some examples are shown for illustrative purposes:

I. Foundations.

The Law 40/2015, of 1 October, on the Legal Regime of the Public Sector regulates the so-called State institutional public sector, within the concept of the public sector that is composed of the entities that are provided for in its article 84.1, among which are in its section e) the foundations of the public sector.

Likewise, and as stated in article 2 of Law 47/2003, of November 26, General Budget, are part of the state public sector, among others: “Public sector foundations attached to the General Administration of the State.”

With regard to the Foundations, as provided for in article 2 e) of Law 47/2003, of 26 November, it is understood that they will be those defined in Law 50/2002, of 26 December, on Foundations. Consequently, it will be necessary to pay attention to the specific regulation and assess whether the legal nature of these foundations conforms to the requirements provided for those of the state public sector in Chapter XI of Law 50/2002, of 26 December.

Article 8.4 of Law 50/2002, of 26 December, on Foundations, recognizes the capacity of legal and public persons to form Foundations.

Based on the above, the statutes of the Foundation must be analyzed in order to determine if the foundation belongs to the state institutional public sector and, therefore, will be included within the scope of application of Law 70/1978, of 26 December, on the recognition of previous services in the Public Administration, as established in article 1.1.

However, the consulting body must finally verify the requirements required for such recognition, including, where appropriate, the accreditation of the State public sector’s foundation status, which is understood to be the property of the said Foundation.

II. Corporation Radio Television Española.

The RTVE Corporation is a state-owned trading company with special autonomy. It is set up as a Public Limited Company with wholly State capital and is responsible for the direct management of public broadcasting services under Law 17/2006 on State-owned Radio and Television, which is created and developed by Article 20 of the Spanish Constitution. Specifically, Law 17/2006 establishes the RTVE Corporation as a state-owned commercial company.

The Agreement of the Higher Personnel Commission of 27 October 1989, in establishing the criteria for the interpretation and application of Law 70/1978, of 26 December, on the Recognition of Prior Services, stated that services provided in state companies that take the form of commercial companies would be excluded from the scope of application of Law 70/1978, since they do not have the status of “Institutional Administration”.

Similarly, article 29.3 (d) of Act No. 30/1984 of 2 August 1984 on measures for the reform of the civil service expressly excludes the period of service provision in commercial companies in whose capital the direct or indirect participation of public administrations is the majority from the count for the purposes of trienniums. According to the above, in the opinion of this Center, the recognition of services provided in RTVE in the period referred to in the consultation would not be appropriate, since RTVE had at that time the nature of a state company.

III. RENFE.

Secondly, the previous services at RENFE (currently Railway Infrastructure Manager – ADIF).

In relation to the application of Law 70/78 to the ‘Administration of Institutions’, the Higher Commission of Personnel itself, in its session of October 27, 1989, also established that the services provided in the State Companies regulated in Article 6.1.a) and b) of the General Budget Law were excluded, except those that had the status of Autonomous Bodies, because those are entities of private law that in many cases carry out activities that cannot be described as public services.

In the same sense, article 29.3.d) of Act 30/84 of 2 August on measures for the reform of the civil service, to which we have already referred. The jurisprudence supports this criterion, among others, in the Judgment of the Supreme Court of January 16, 1998, in pointing out that “national companies, today state-owned companies, are not strictly Autonomous Bodies, but entities of a private nature that act in the legal traffic equated to private subjects and governed by civil, commercial and labour law. There is no public personification and they do not, therefore, enjoy the character of Public Administration nor in rigor can be assimilated to any of the administrative areas referred to in article 1 of Law 70/78.”

In relation to the services provided in the Public Law Entity RENFE, it began as a public company. Thus the Directorate-General of the State Legal Service, in its opinion of 29 July 1986, stated that it was "a public enterprise, the basic defining feature of which is the State ownership of the public service it manages, previously entrusted to private companies under administrative concession".

The aforementioned report concluded that “since the entry into force of General Budget Law 11/1977, of 4 January, RENFE has to be classified as a State Company, included in the category contained in Article 6.1.b) of that Law, as a public law entity with legal personality, which by law adjusts its activity to the private legal order, being therefore subject to the provisions of Articles 87 to 91 of the repeated General Budget Law, regulators of the Action, Investment and Financing Programs of the State Companies”.

The notes that characterized this State Society prevented its recognition as a Public Administration for the purposes of previous services.

However, the third transitional provision of Law 6/1997, of 14 April, on the Organization and Functioning of the General State Administration, determined, in paragraph 2(b), the adequacy of the entities included in Article 6, paragraph 1(b), of the General Budget Law, including the National Network of Spanish Railways (RENFE), to the type of public business entity.

This adjustment was carried out by Article 74 of Law 50/1998, of 30 December, on Fiscal, Administrative and Social Measures, which determined its adaptation to Law 6/1997, of 14 April, on the Organization and Functioning of the General Administration of the State as a Public Business Entity of those provided for in Article 43, paragraph 1 (b) of this Law.

Law 6/1997 modifies the legal nature of State Companies, on the understanding that except the commercial companies that are governed entirely, whatever their legal nature, by the private legal system, which are those contemplated in Article 6.1.a) of the General Budget Law, the remaining entities included in Section 1.b) of said article, are adapted to the type of Public Business Entity created by the LOFAGE, forming part of the State Administration, dependent on the Ministry of Development, with the aim of promoting Spanish rail transport.

Consequently, the RENFE Public Entity would be included in the concept of Administration of article 1 of Law 70/1978, so that the services provided in it will be recognizable.

Subsequently, the reform carried out on the Railway Sector by Law 39/2003, of 17 November, does not modify the legal nature of the Public Business Entity RENFE. This reform concerns the separation of infrastructure management and service operation activities and the progressive opening up of rail transport to competition.

Thus, the first additional provision of this Law provides that the public enterprise entity RENFE is renamed Railway Infrastructure Manager (ADIF) and assumes the functions assigned to the Railway Infrastructure Manager in this Law. ADIF is therefore still a public business entity, with management autonomy within the limits established by its regulations and is attached to the Ministry of Development.

And, on the other hand, the third additional provision creates the public business entity RENFE-Operadora, as a public body of those provided for in the LOFAGE, with its own legal personality, full capacity to work and its own heritage, attached to the Ministry of Development.

In accordance with the above, for the purposes of Law 70/1978, the period of services provided in RENFE could be recognized from the date of entry into force of the LOFAGE for having from that moment the consideration of Public Business Entity but not the services previously provided because it was a State Company and, therefore, excluded from the scope of application of the aforementioned Law.

IV. Real Academies.

Thus, it is necessary to determine the legal nature of the Royal Academy for which it is necessary to identify its public or private nature.

As a preliminary step, it should be noted that, from what is established in its Statutes, its name and the lack of registration in the Inventory of entities of the public sector (INVENTE), we can conclude that the Royal Academies are not part of the institutional public sector.

But in any case, and according to its nature, both the Institute of Spain and the Royal National Academies that make up it have been configured, according to their respective Statutes, as corporations under public law, although with certain peculiarities due to their form of creation and purpose.

The Constitutional Court has ruled on several occasions on the nature of these entities, and should highlight Judgment 76/1983, of 5 August, which states that:

“Although oriented primarily to the achievement of private purposes, specific to the members that make up them, such Corporations participate in the nature of the Public Administrations and, in this sense, the constitution of their bodies as well as their activity in the limited aspects in which they carry out administrative functions must be understood subject to the bases that with respect to such Corporations the State dictates in the exercise of the competences recognized by art. 149.1.18.º”.

Thus, public law corporations are not currently integrated into the concept of the public sector in view of the wording of article 2 of Law 39/2015, of 1 October, on the Common Administrative Procedure of Public Administrations, which in its fourth paragraph states:

“Public Law Corporations shall be governed by their specific regulations in the exercise of public functions assigned to them by law or delegated by a Public Administration, and alternately by this Law.”

If it is true that, as indicated in the consultation, the corporations under public law came to be considered as Public Administrations, in accordance with the provisions of article 1.2 of the Regulatory Law on Contentious-administrative Jurisdiction. However, the consideration as such was the subject of doctrinal and jurisprudential discussions, without a unanimous criterion in this regard. In any case, this vision is overcome by Law 30/1992, of 26 November, on the Legal Regime of Public Administrations and Common Administrative Procedure.

Therefore, we can conclude that the Royal Academies are corporations under public law, but it is not part of the institutional public sector, so it is not appropriate to recognize previous services since it is not included within the scope of application of Law 70/1978, of December 26, on the recognition of previous services in the Public Administration.

All of the above is without prejudice to remember 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, do not have the character of a binding criterion, nor do they give rise to rights or expectations of law, nor do they imply any link with the type of procedures to which they refer. In addition, since they are not mandatory or binding, the bodies to which such replies are addressed may, where appropriate, finally take a decision that does not correspond to the opinion contained therein.

The answers to queries contained in this bulletin deal with the issues raised in the light of the regulations in force at the time of their issuance, so that these answers may be affected by subsequent legislative changes or judicial resolutions.