The consultation refers to the following antecedents: military, belonging to the Military Legal Corps, which provided services in the Autonomous Administration, in which it obtained a position awarded by the system of free designation from which it ceases to move to the situation of special services to perform exclusively the position of Delegate Councilor of the Area of Finance and Public Function of a City Council.

In the light of this background, and in application of the provisions of the eleventh additional provision of the revised text of the Law on the Basic Status of Public Employees approved by Royal Legislative Decree 5/2015, of 30 October (hereinafter, TRLEBEP), it is consulted whether the official must re-enter the Military Administration, or, if applicable, must re-enter the Civil Administration in which he had his last destination, with the criteria for re-entry of the latter.

The eleventh additional provision of TRLEBEP states the following:

"1. Military career personnel may provide services in the civil administration under the terms established by each Public Administration in those jobs in which this possibility is specified, and of those that are awarded, in accordance with the principles of merit and capacity, prior participation in the corresponding public call for the provision of such jobs, and prior compliance with the requirements that may be established for this purpose by the Ministry of Defense.

2. Military personnel serving in the Civil Administration shall be subject to the rules of the Civil Administration relating to working hours and hours; holidays, permits and licences; and disciplinary regulations, although the penalty of separation from service may only be imposed by the Minister of Defence.

The provisions for internal promotion, administrative career, administrative situations and mobility shall not apply to them, without prejudice to their being able to participate in the procedures for the provision of other posts open to these personnel in the Civil Administration.

The remuneration to be received will be the basic remuneration corresponding to them in their status as military officers, and the complementary remuneration corresponding to the job performed. The possible promotions that may occur in his military career will not entail any variation in the conditions of remuneration of the position held.

Their Social Security regime will be the one that corresponds to them as career soldiers.

In the event of the termination, removal or elimination of the civil service post they have been performing, they shall be reinstated in the military administration in their appropriate situation, without the criteria for civil service personnel in these cases being applicable to them.”

From the mere reading of the precept, it follows, on the one hand, that military personnel are not subject to the system of administrative situations provided for officials in the service of the Civil Administration and, on the other hand, that in the event that they cease in the job they perform, they must rejoin the Military Administration in the appropriate situation.

For its part, article 113 bis of Law 39/2007, of 19 November, on the Military Career, provides as follows:

“1. Career soldiers who, by virtue of a procedure for the provision of jobs, obtain destination in the civil administration, shall be declared in this administrative situation.

The legal regime applicable to these personnel will be that provided for in Law 7/2007, of April 12, on the Basic Statute of the Public Employee.

2. The mobility of military personnel to cover jobs in the civil administration shall be subject to the prior authorization of the Under-Secretary of Defense. In order to be able to participate in the procedures for providing these jobs, they must have at least 20 years of service, the provisions of the third subparagraph of Article 110(2) being applicable to them.

3. A career soldier who ceases to serve in the civil administration for any reason must apply for re-entry into the situation of active service in the Ministry of Defence, unless, in accordance with the provisions of this Law, it is incumbent upon him to proceed to the situation of reservation.”

This article, in turn, ratifies the provision that when the military ceases to provide services in the Civil Administration “for any reason”, the precept affects, it will have to apply for re-entry into the Military Administration.

As indicated in the above-mentioned background, the soldier who had been serving in the Autonomous Administration had ceased in the Autonomous Administration as a result of being appointed Councilor Delegate of the Area of Finance and Public Function of the City Council, on a full-time basis; since then, as the consultant also points out, the situation of special services.

The above-mentioned provisions make it clear that the administrative situation of the soldier who provides services in the Civil Administration will always be that corresponding to his military career. Likewise, these precepts indicate that when the Civil Administration ceases for any reason, as in the present case, the military "they must be reinstated in the military administration in their appropriate situation, without applying the criteria in these cases for civilian official personnel”.

Therefore, and given that in this case, the soldier ceased to be a member of the Autonomous Administration and became a member of special services, as a member of the military, under the above-mentioned precepts, he would have lost his connection with the Civil Administration, so that, once he ceased to be a Councillor, by virtue of which he was declared to be a member of special services, he must request his re-entry to the situation of active service in the Ministry of Defence, unless it is for them to move on to the reserve situation or to another situation.

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.