Consultations are held on how to proceed in the event of the termination of posts occupied through the procedure of free appointment when the official who performs it belongs to another Public Administration, and there has been no legislation to develop the Act on the Basic Status of Public Employees.

Article 84.3 of the Consolidated Text of the Law on the Basic Status of Public Employees, approved by Royal Legislative Decree 5/2015, of 30 October (TRLEBEP), has the same verbatim diction that already contained the repealed Law 7/2007, of 12 April.

In summary, the precept establishes with regard to the posts that are occupied through the procedure of free appointment that, in the event of termination, if the official who performed it belongs to another Public Administration, he must re-enter it, unless he obtains another post in the Administration in which he has just ceased.

This provision, included in the then article 84.3 of Law 7/2007, of 12 April, by Law 15/2014, of 16 September, on the rationalization of the Public Sector and other measures of administrative reform, although it meant a material change of the content of the precept, did not imply a modification, in turn, of the entry into force regime that originally owned said precept, under which the provisions contained in said article require a development law so that they can be applicable.

For its part, the TRLEBEP has not only not altered the regime for the entry into force of that provision, but its eighth transitional provision confirms the opinion indicated, that is to say, the content of the provisions of Article 84.3 will only be applicable when the corresponding legislative development has taken place.

Therefore, in application of the provisions of the fourth final provision, paragraph 2, in connection with the eighth transitional provision, both of the TRLEBEP, it is understood that in the field of those Public Administrations for which the aforementioned legislative development has not occurred, the same rules that have been applied so far, that is to say, the corresponding applicable development legislation and, failing that, the State legislation, must continue to be used for the cases in which a termination occurs in a position of free appointment of an official belonging to another Public Administration.

Without prejudice to the provisions of article 84.3 of the TRLEBEP, and to the cases in which, by virtue of the existence of development legislation, the provisions contained therein may be applied, in general, the opinion of this management centre has been that when the termination occurs in a position of free appointment the career official who has ceased must be assigned, by the same Administration, to another job, applying for this purpose the same rules established in its regulations for officials belonging to the bodies or scales belonging to the corresponding Administration.

And this, for two reasons.

Firstly, because of the inter-administrative mobility that had been generated since Law 30/1984, of 2 August, and which has definitely been enshrined in Law 7/2007, of 12 April; both individual mobility, through the corresponding procedures for the provision of jobs in which civil servants from other Public Administrations could participate; and mobility covered by an Agreement signed by the Administrations for this purpose.

And secondly, and derived from this mobility, by virtue of the principle of “equal treatment”, which would come to be enshrined in Article 88 of the TRLEBEP, which regulates the administrative situation of services in other Public Administrations, providing in the same that “career officials in the situation of service in other Public Administrations who are in that situation because they have obtained a job through the systems of provision provided for in this Statute, are governed by the legislation of the Administration in which they are effectively destined”.

In this sense, the application of the provisions of Article 88 transcribed, in relation to Article 80.4, both of the TRLEBEP, would make it possible to conclude that in cases of termination in a position of free appointment, in general, it must be the Administration where it has been providing services that assigns him to a job according to the rules that his own regulations foresee; all this, without prejudice to the fact that the official requested re-entry into his Administration of origin.

This opinion is confirmed by, inter alia, the judgment handed down on 29 October 2014 by the Administrative Litigation Division of the Superior Court of Justice of Castilla y León, which reads as follows:

“ (…) However, the requested administration forgets that the termination agreed in the regional administration of destination does not mean that the official ceases to be in the service of that regional administration, since the termination does not necessarily entail re-entry to the administration of origin, so it must be understood that he retains the aforementioned guarantee, and must remain at the disposal of the Secretary General of the respective Department, which will provide for his provisional attachment (…).

(…) Therefore, the situation is one of active service in the Administration of the Autonomous Community, which does not lose until it requests its re-entry to the so-called administration of origin, not even because of the termination of its job.”

To all of the above, it should be added that even in the cases in which Article 84.3 of the TRLEBEP is applicable because there is development legislation, the will of the legislator must be taken into account as expressed in the precept, which provides, first of all, for membership in the Administration itself, and only in the absence of such membership, then it is appropriate that it be re-admitted by the Administration of origin when so requested by the official.

Finally, it should be remembered that the provisions contained in the Ninth Transitional Provision of Law 15/2014, of 16 September, remain fully in force.

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.