The question raised concerns the possibility of terminating the extension of the active service of a staff member who is instructed in disciplinary proceedings.

First of all, the legal framework for implementation must be analysed. Royal Legislative Decree 5/2015, of 30 October, approving the revised text of the Law on the Basic Status of Public Employees (TREBEP) regulates the individual right of public employees to retire according to the terms and conditions established by the applicable regulations.

The pension scheme in the TREBEP is contained in Chapter II of Title IV, relating to the loss of the service relationship. Article 67.3 of the TREBEP establishes in relation to retirement that:

“Compulsory retirement shall be declared ex officio when the official reaches the age of sixty-five.

However, 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 the age of seventy is reached. The competent Administration must resolve in a reasoned manner the acceptance or refusal of the extension.”

In view of the above, the question raised focuses on whether a prison official who is in a situation of prolongation in active service and who is being instructed in disciplinary proceedings has the possibility of requesting the completion of the prolongation in active service.

In accordance with the provisions of articles 8 and 9 of the TREBEP, the inherent status of civil servants is directly related to the exercise of remunerated functions in the Public Administrations which, in the case of career civil servants, begins by virtue of legal appointment, is regulated by administrative law, is of a permanent nature and, in any case, includes the exercise of public powers or the safeguarding of the general interests of the State and the Public Administrations.

From the above it is inferred that “the rights inherent in your status”, to which Article 90 of the TREBEP refers, are directly linked to the functions exercised by them and that the deprivation of rights is understood to include the rights proper to such a condition and not to others.

In this sense, the right to retirement of Article 14.1.n of the TREBEP cannot be understood as one of the rights inherent to such a condition because such a condition, as has been pointed out, is directly linked to the exercise of certain functions, while retirement is not linked to the exercise of public functions, but quite the opposite, implies the definitive cessation of the exercise thereof, since the loss of the condition implies the cessation of functions in any case, in accordance with Article 63.a of the EBEP which states: “The following are causes of loss of the status of career officer: Total retirement of the staff member.”

On the other hand, Article 67.3 of the TREBEP and Article 28.2 of Royal Legislative Decree 670/1987 establish a mandate to proceed to retirement when the requirements established in the above-mentioned precepts are met. It cannot be interpreted in this sense that the legislator wanted to make this mandate conditional on circumstances other than those assessed in the above-mentioned articles, namely having reached the age of 60, having at least 30 years of effective service to the State.

Finally, it follows that the legislator did not want to prevent the possibility that during the processing of a disciplinary file an official might have access to retirement, since if he had wanted to, he would have stipulated a provision similar to that established for the case of voluntary leave in the particular interest, for which he provides exhaustively the impossibility of granting it in the event that the public official is being instructed in disciplinary file.

Therefore, and for the reasons stated above, there is no legal impediment to a staff member who is being instructed in disciplinary proceedings being able to request the completion of the extension of active service.

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.