The present consultation raises the possibility of extending the active service of interim staff members.

Article 10 of the consolidated text of the Act on the Basic Status of Public Employees (TRLEBEP), approved by Royal Legislative Decree 5/2015, of 30 October, a provision dedicated to interim officials, provides that interim officials are those who, for reasons expressly justified of need and urgency, are appointed as such for the performance of functions proper to career officials, when any of the circumstances indicated in this article occur.

As regards the arrangements applicable to them, Article 10(5) provides that: "The general regime for career officials shall apply to interim officials, as far as it is appropriate to the nature of their status,".

Therefore, the application of the regulation established for career officials will apply to interim officials where appropriate. “to the nature of his temporary condition and the extraordinary and urgent nature of his appointment,” This requires us to consider what is the nature and what are the notes that characterize it.

Although this is a relationship governed by administrative law, what really characterises this class of staff vis-à-vis the career civil servant is the temporality of the relationship established with the Civil Service, unlike that of the career civil servant, which is a “permanent character”.

Therefore, in the first place, the temporary and non-permanent nature of the relationship held by the interim official is an essential element in determining which rules and, above all, to what extent, should be applied to such personnel when the precept in question does not determine who is the recipient or recipients of it.

It is appropriate to recall here the provisions of Council Directive 1999/70/EC of 28 June 1999 concerning the framework agreement of the ETUC, UNICE and CEEP on fixed-term work; in particular, the Fourth Clause of the Directive relating to the ‘Principle of non-discrimination’ which states the following:

“1. As far as working conditions are concerned, workers on fixed-term contracts may not be treated less favourably than comparable permanent workers merely because they have a fixed-term contract, unless different treatment is justified on objective grounds.

2. Where appropriate, the pro rata temporis principle shall apply. (…)”

Two considerations can be made in the light of the case-law of the CJEU on the application of that directive.

On the one hand, under the terms of the directive itself, it is understood that workers on a fixed-term contract cannot be treated less favourably than comparable permanent workers merely because they have a fixed-term contract, unless different treatment is justified on objective grounds.

On the other hand, the provisions of the Act on fixed-term work apply to both career and interim staff.

And this is without prejudice to the fact that the doctrine established by the CJEU tends to concur with the regulations governing fixed and temporary staff, allowing, however, that there are differences when they are justified, but without serving as a basis for such differentiation only the temporary element.

Starting from these extremes, and entering to analyze retirement, it is regulated in Article 67 of the TRLEBEP. This article, under the heading of “Retirement”, provides for the different types of retirement referring to “officials”, in a generic way and without any specification, as is the case, for example, with administrative situations in which the legislator clearly states that its application corresponds only to “career officials”.

On the other hand, it is not only logical that interim officials, like any other class of staff, should have the right to retirement (a right thus provided for all public employees in Article 14 of the TRLEBEP), but, in addition, Article 63 provides for retirement as one of the causes of termination of the interim official.

In this regard, and unless there is a specific provision, it is understood that the provisions contained in article 67 of the TRLEBEP on the retirement of civil servants generally apply to the interim official.

However, it should be noted that Article 67(3) really does regulate precisely an exception to forced retirement on the grounds of age, and is the so-called prolongation or “stay in active service” as the provision expressly states.

Thus, paragraph 3 of this article states that “in the terms of the Civil Service laws that are dictated in the development of this Statute, it may be requested to extend the stay in active service at the latest until seventy years of age are reached.”

While, as noted, the other sections dealing with the different types of retirement would apply to interim officials, the question arises as to whether this provision, that of continuing active service, is specific to career officials or whether, on the contrary, it may also apply to interim officials.

In this connection, it would appear that the prolongation or retention in active service of the system of administrative situations itself must in any event be delineated.

This idea is supported by the current regulation itself since, in contrast to article 33 of Law 30/1984, of 2 August, in which the extension was configured as a real right of the official, article 67.3 of the TRLEBEP, which has come to replace him, regulates the extension in active service as ‘(…) a subjective right conditional on the organisational needs of the Administration making its exercise possible; but it is up to the Administration to justify those organisational needs which must determine the granting or refusal of the extension. In any event, the Administration’s obligation to give reasons, whether favourable or not, for the decision on the extension of active service requested by the staff member in accordance with the needs of the organisation, implies that the needs cited as the basis for the decision to be taken are adjusted to reality and that their existence is proved (…)’. (By all, STS, Contentious Room, February 6, 2017).

That is to say, although the Administration must necessarily motivate the granting or refusal of the extension in the active service, it is no longer configured as an inherent right to the position, as had been understood, and from which it could be deduced that, by such character, it was only predictable from those who have a permanent relationship, that is, the career officials – who are the only ones who have the right to the charge – but it is rather a right that is linked to the organizational needs of the Public Administration.

Therefore, if it is understood that the extension of active service, in the light of TRLEBEP, is no longer an element of the right to office, it is also not sustainable for it to be a foreseeable right exclusively of career civil servants.

On the other hand, in the regulations in force in the General Administration of the State, the Resolution of 31 December 1996 of the Secretary of State for Public Administration, which establishes complementary procedural rules for the application of the extension of the period of active service to public officials in the field of the General Administration of the State, still in force, provides that the same applies to the personnel contained in article 1.1 of Law 30/1984, which includes the “personnel in the service of the General Administration of the State”. Although the various types of personnel are not specified in that provision, under no circumstances is an exception made for interim official personnel.

At the same time, it should be recalled that, according to the Supreme Court, the extension of retirement is not just a statutory right, but a right that is conditioned in any case on the fact that “the organizational needs of the Administration allow its exercise, it is understood that the right to remain or continue in active service can also be recognized, where appropriate, to the interim official staff”.

Therefore, in the light of the regulations in force in the General Administration of the State, and the doctrine established by the CJEU in the application of Directive 1999/70/EU set out above, and considering the nature currently possessed of permanence or prolongation in active service, the recognition of permanence or prolongation in active service to interim civil servants cannot be made to the same extent as to career civil servants; since here there is a difference that conditions the resolution that may be dictated to that effect, and it is none other than the very temporary nature of the interim relationship.

In this sense, the resolution that this body may adopt, if it finally chooses to recognize the right to remain in active service to the interim official, must modulate this recognition in the sense that the cessation may occur, before reaching the maximum age of seventy years, provided that any of the circumstances legally provided for in Article 63 of the TRLEBEP or any other rule that in this sense includes a provision in this regard, under which the cessation of the status of interim official occurs.

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.