Consultation is carried out on the possibility that the personnel of the Armed Forces may provide services in the Civil Administration of the State in those positions of the employment relations of the different ministerial departments open for performance by military personnel, in some administrative situation other than that provided for in article 113 bis of Law 39/2007, of 19 November, of the military career, added by article 29.tres of Law 15/2014, of 16 September, on the rationalization of the Public Sector and other measures of administrative reform (Official State Gazette, number 226, of 17/09/2014).

On the other hand, a report is also requested on the possibility that personnel of the Armed Forces may go on to work temporarily, either on temporary secondment or on secondment, in the civil administration, when this is not one of the destinations provided for in article 99 of the Military Career Act.

With regard to the first of the questions raised by the consultant, concerning the possibility that the personnel of the Armed Forces may provide services in the civil administration in posts of the RPTs of the various ministerial departments open for performance by military personnel, the following observations are made:

Law 15/2014, of 16 September, on the rationalization of the public sector and other administrative reform measures, has gone on to regulate the presence of military personnel with a stable character in the civil administration, creating for this purpose a specific administrative situation of active service in the civil administration. As the law itself states, the legal regime applicable to this personnel will be the one provided for in Law 7/2007, of April 12, of the Basic Statute of the Public Employee (EBEP), currently, in the consolidated text of the Law of the Basic Statute of the Public Employee (TRLEBEP) approved by Royal Legislative Decree 5/2015, of October 30.

In view of the implementing regulations, it must be concluded that, with the sole exception of the provisions of article 99 of Law 39/2007, of 19 November, on the Military Career, there is no other administrative situation for military personnel than that provided for in the current article 113.bis of the aforementioned legal text, by which these personnel can perform functions in the posts of the Civil Administration.

With regard to the second issue, concerning the possibility that personnel of the Armed Forces may enter on a temporary basis, either on temporary secondment or on secondment, to perform a job in the civil administration, when this is not one of the destinations provided for in article 99 of the Military Career Act, the following should be noted:

The eleventh additional provision of the TRLEBEP regulates the access of military personnel to the civil administration in the following terms:

“1. The military career personnel may provide services in the civil administration in 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, where appropriate, may be established for this purpose by the Ministry of Defense.’

2. (…) In the event of the termination, removal or elimination of civil service jobs that they have been performing, they must rejoin the military administration in their appropriate situation, without applying the criteria that exist in these cases for civil service personnel.”

In the light of the precept transcribed, it is concluded that the legal regulation in relation to the question raised is clear in this regard, being essential, when it is not one of the destinations provided for in article 99 of the aforementioned Military Career Law, the permanent occupation of the post opened specifically for military personnel and therefore without there being a performance by this personnel through other formulas such as the temporary occupation of the post in provisional secondment or in commission of services, formulas that are applicable to civilian personnel.

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.