The question raised concerns the interruption of holidays in the event of the right to apply for an adoption permit.

With regard to the legal framework for implementation, article 59 of Organic Law 3/2007, of 22 March, on the effective equality of women and men, provides, in relation to holidays for personnel serving the General Administration of the State and for public bodies attached to or pending it, that:

“Without prejudice to any improvements that may arise from agreements concluded between the General Administration of the State or the public bodies linked or dependent on it with the representation of employees and employees in the service of the Public Administration, when the period of leave coincides with a temporary incapacity arising from pregnancy, childbirth or natural lactation, or with maternity leave, or with their extension by breast-feeding, the public employee shall be entitled to enjoy the leave on a different date, even if the calendar year to which they correspond has ended.

The same right will be enjoyed by those who are enjoying paternity leave.”

For its part, Article 50 of Royal Legislative Decree 5/2015, of 30 October, approving the revised text of the Law on the Basic Status of Public Employees, in its second paragraph states:

“When situations of maternity leave, temporary incapacity, risk during lactation or risk during pregnancy prevent the start of the holiday within the calendar year to which they correspond, or once the holiday period has begun one of these situations, the holiday period may be enjoyed even if the calendar year to which they correspond has ended and provided that no more than eighteen months have elapsed since the end of the year in which they originated”.

According to the provisions of both precepts, it seems logical to understand, first of all, that in order for the enjoyment of the holidays to be deferred due to the coincidence with the expressly mentioned permits, it is necessary that the holidays were previously fixed and were being enjoyed.

The possibility of applying the provision of Article 50.3 of the TREBEP to permission for adoption, for guardianship for the purpose of adoption, or for both temporary and permanent acceptance of Article 49(b) of said legal text, does not seem feasible since the legislator has not expressly provided for it in the drafting of the article.

This article contains a remarkable list of situations related to childbirth, which may involve deferred enjoyment of holidays, all related to the mother. The only exception expressly provided is the paternity leave that is included by the legislator at the end of article 59 of Organic Law 3/2007, of 22 March, no further exception being provided which leads to the conclusion that the adoption leave does not generate the right to defer the enjoyment of the holidays.

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.