The consultation concerns the possible revocation of the granting of an extension to continue in the active service.

The bases of the legal regime of public employees are regulated in Royal Legislative Decree 5/2015, of 30 October, approving the revised text of the Law on the Basic Status of Public Employees (hereinafter, TRLEBEP)

Article 67 of the TRLEBEP contains the regulation of the retirement of public officials. That Article states, in its third paragraph, that “Compulsory retirement shall be declared ex officio when the official reaches the age of sixty-five.

However, under the terms of the Civil Service Laws enacted in the implementation of this Statute, a request may be made to extend the period of active service up to the age of seventy. The competent Public Administration must resolve in a reasoned manner the acceptance or denial of the extension.”

In accordance with the provisions of the Fourth Final Provision of the TRLEBEP which states, in its third paragraph, that “until such time as the Civil Service Laws and the development regulations are issued, the existing regulations on the management, planning and management of human resources shall remain in force in each Civil Service until such time as they are contrary to the provisions of this Statute”the provisions of article 33 of Act No. 30/1984 of 2 August 1984 on measures for the reform of the civil service, which provides that: “The forced retirement of public officials shall be declared ex officio upon reaching the age of sixty-five.

Notwithstanding the provisions of the preceding paragraph, such declaration shall not take place until such time as the officials cease to be in active service, in those cases in which they voluntarily prolong their stay there until, at most, seventy years of age. The Public Administrations will dictate the procedural rules necessary for the exercise of this right.”

This procedure is contained in the Resolution of the Secretary of State for the Civil Service of 31 December 1996, which establishes complementary procedural rules for the application of the extension of the period of active service to civil servants within the framework of the General Administration of the State. The procedure established for requesting the extension begins at the request of a party, and the competent body must decide on the grounds for its granting or refusal, after examining the circumstances and the situation of the official.

The decision, as a final result of the administrative procedure, may be subject to appeal by the interested party, if it is unfavourable to him.

In the case that is the subject of the consultation, there is a favourable decision for the interested party, adopted after a procedure in accordance with the current regulations. In this case, the possibilities that the Administration has to revoke this resolution are contained in articles 106 et seq. of Law 39/2015, of 1 October, on the Common Administrative Procedure of Public Administrations. These routes and the possibility of being used in the event of fact the subject of the consultation will be briefly explained below:

Review of null and void provisions and acts (art. 106) and Declaration of Inadmissibility of Inadmissible Acts (art. 107). - These two possibilities cannot be used since they require, as an essential condition, that the acts on which the review is to be exercised are null (in the case of article 106) or annulable (in the case of article 107) in accordance with the provisions of articles 47 and 48 of Law 39/2015, of 1 October, respectively.

This is not the case with the act of granting the extension, which was produced without incurring any type of violation of the procedure and is not contrary to the legal system.

Revocation of favorable acts (Article 109.1).- This channel is not liable to be used either, since the revocation is exercised, in accordance with the provisions of the first paragraph of Article 109, with respect to “unfavourable or burdensome acts”, not being the case of the granting of the extension, which is favorable to the interested party.

Revision of material errors (article 109.2).- The use of this faculty would not be appropriate because there are no material errors likely to be corrected and, in any case, this revision would not affect the substance of the matter.

Finally, in the event that the official who, being in extension of active service, incurred temporary incapacity, should proceed in the same way as for the rest of the officials, that is, applying the provisions of articles 169 and following of Royal Legislative Decree 8/2015, of 30 October, which approves the revised text of the General Social Security Law.

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.