The question raised concerns the situation of an official who requested the transfer to a province, which is where a family member who suffers health problems resides, but in view of the impossibility of being able to attend such a request, the transfer to a different province of the same Autonomous Community was carried out.

The possibility of changing the current destination with a destination in the province in which the transfer or other mobility options were requested of origin is considered before two years after the inauguration.

First of all, the legal framework for implementation must be analysed. Article 78.3 of Royal Legislative Decree 5/2015, of 30 October, approving the revised text of the Law on the Basic Status of Public Employees (hereinafter, TREBEP) establishes that “The Civil Service Laws issued in the course of this Statute may establish other procedures for provision in the cases of mobility referred to in Article 81.2, commutes between jobs, mobility for reasons of health or rehabilitation of the official, re-entry into active service, cessation or removal from jobs and suppression thereof.”

For its part, the Fourth Final Provision, paragraph 3, of the TREBEP states that,

“3. Until such time as the Civil Service Laws and the development regulations are promulgated, the existing regulations on the management, planning and management of human resources shall remain in force in each Civil Service, as long as they do not conflict with the provisions of this Statute.”

Accordingly, the existing regulations on the management, planning and management of human resources remain in force until such time as the Civil Service Laws and the development regulations are promulgated, as long as they do not conflict with the provisions of this Statute.

In this regard, it should be understood that article 62 of Decree 315/1964, of 7 February, approving the Articulated Text of the Civil Servants of the State Act, relating to the swap of destinations, continues to apply within the scope of the General Administration of the State, the wording of which is as follows:

“1. The Assistant Secretary, in his Department, and the Vice-Chairman of the Higher Personnel Commission, in the case of separate ministries, may exceptionally authorize swaps of destinations between staff members on active duty or on special leave, provided that the following circumstances apply:

(a) That the jobs in which they serve are of the same nature and the same form of provision corresponds.

(b) That the staff members seeking the exchange should have, respectively, a number of years of service that does not differ from each other by more than five.

(c) That an advance report be issued by the Heads of the applicants or the respective Assistant Secretaries.

2. Within ten years of the granting of a swap, no other swap may be authorised by any of the persons concerned.

3. A commute between officials may not be authorized when one of them has less than ten years to reach the age of forced retirement.

4. Swaps shall be cancelled if within two years of the date on which they take place the voluntary retirement of one of the swaps occurs.”

It is the Executive Centre’s reiterated criterion to understand that the exchange of destinations is a case of exceptional mobility and discretionary authorization, so that compliance with the requirements established in Article 62 of Decree 315/1964, of 7 February, does not generate any right in favour of the hypothetical applicant for the requested exchange to occur; however, it goes without saying that it is mandatory that each and every one of the circumstances contained in the precept be given so that the exchange can be authorized.

Consequently, in order to obtain the swap, it is not enough to meet the requirements established in the precepts indicated, but the Administration, in use of its discretionary powers in this case, may deny the swap for duly motivated personnel policy reasons and provided that the discretionary decision conforms to the purpose provided in the rule granting it such power.

Taking into account the above, the question raised focuses on the figure of the swap. In this regard, starting from the exceptional nature of the swap, and in relation to the circumstances that must be met, in any case, in order for it to be authorized, the question arises whether, in addition to the circumstances provided for in Article 62 of Decree 315/1964, of 7 February, it must be the case that at least two years have elapsed since it obtained the last post definitively, in accordance with the provisions of Article 41 of Royal Decree 364/1995, of 10 March, approving the General Regulations for the Entry of Personnel into the Service of the General Administration of the State and for the Provision of Civil Posts.

In this regard, it should be borne in mind that the two-year period for regular mobility from each final post obtained by competitive examination is established in order to enable the Administration to carry out proper planning and management of the personnel that allows due attention to the various public services that it provides.

In the case of the swap, there is no transfer of a staff member to another job, leaving the original job vacant, but there is a reciprocal change between two staff members from their respective destinations. Destinations that are “homogeneous”, since they have to comply with the requirements established in article 62 of Decree 315/1964, of 7 February, and that would be covered by officials with “assimilable” professional characteristics, so there would be no alteration, neither in the provision of the service, since both positions would continue to be covered when the simultaneous change of destinations occurs, nor would the quality of the provision of the same be affected, since they are similar professional careers.

Therefore, it is understood that the purpose of the two-year period provided for by Article 41 of Royal Decree 364/1995, of 10 March, is not to be extended to cases of swap and, therefore, is not presented as a necessary requirement to be able to authorize it.

To a greater extent, in the present case, the places to be swapped belong both to the Autonomous Agency Public Service of State Employment, so in compliance with the provisions of article 41 of Royal Decree 364/1995, of 10 March, in the case of a contest it would not be necessary that two years had elapsed since they obtained the last post definitively.

On the other hand, and without prejudice to the swap being carried out, other mobility procedures are consulted before two years after he has taken possession of his last destination.

It should be noted that this requirement is limited to the provision of jobs through competitive examinations with one exception. Thus, as already indicated, in accordance with the provisions of Royal Decree 364/1995 of 10 March, 41, it will not be necessary for two years to elapse if he participates in competitions for posts included within the scope of the Secretary of State or, failing that, the Ministerial Department to which the seat he has been occupying belongs.

Within the formulas of ordinary provision, the requirement of two years to participate in procedures of free designation is not established, in accordance with articles 51 et seq. of Royal Decree 364/1995, of 10 March.

On the other hand, there may be the possibility provided for in article 64 of Royal Decree 364/1995, of 10 March, that is to say, that the Administration agrees to temporarily cover a place through a service commission. Thus, the above-mentioned provision provides as follows:

“When a job becomes vacant, it may be filled, in case of urgent and unpostponable need, on the basis of voluntary services, with an official who meets the requirements established for his performance in the list of jobs.”

Finally, posts may also be provided by means of provisional secondment in the cases of article 63 of Royal Decree 364/1995, of 10 March, without the requirement of two years having to be met.

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.