The question raised relates to the situation in which the staff member holding a post on temporary secondment is left if, when the post has been summoned by means of a competitive examination, the post is not submitted.

First of all, the legal framework for implementation must be analysed. The fourth final provision of Royal Legislative Decree 5/2015, of 30 October, approving the revised text of the Law on the Basic Status of Public Employees, differs from the entry into force of the provisions relating to the provision of jobs and mobility until the entry into force of the Civil Service laws that are dictated in development of the Statute. In accordance with the provisions of the fourth final provision of the TREBEP, which establishes in its second paragraph:

" Until the Civil Service Laws and the development regulations are enacted, 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 " .

Consequently, the provisions relating to the provision of posts and mobility regulated by Act 30/1984 of 2 August on measures for the reform of the Civil Service and Royal Decree 364/1995 of 10 March approving the General Regulations for the Admission of Personnel to the Service of the General Administration of the State and for the Provision of Jobs and Professional Promotion of Civil Servants of the General Administration of the State remain in force.

Specifically, and with regard to the figure of the provisional subscription, it is regulated in article 63 of Royal Decree 364/1995, of 10 March, which regulates the cases in which it may be.

Provisional secondments constitute an exception to the general regime of provision of jobs and occur in assessed cases, and since it is an exceptional and temporary assumption of provision of jobs, such provisionally cannot be durable in time, so that the posts occupied by this system have to be considered vacant for the purpose of inclusion in the most immediate ordinary form of provision, without such formula of provisional secondment being considered an alternative form of provision of jobs, substituting the ordinary procedures of provision (competition and free appointment, in cases where this is appropriate) and can not be justified outside the cases indicated, nor be erected in a normal mechanism of general uncertainty and uncertainty.

For this reason, taking into account the exceptional and assessed nature of the use of the provisional attachment, Article 72(2) of the same Regulation provides that “The posts covered by temporary secondment will be summoned for coverage definitively by the systems provided for in the relations of jobs. The officials who perform them will have the obligation to participate in the corresponding calls”.

In conclusion, there is an obligation of the persons provisionally assigned to participate in the corresponding summonses of the post they occupy under art. 72.2 of the Regulation, in this case it is not a voluntary participation in a tender for the provision of jobs but a legal obligation to participate in the corresponding calls and in respect of the post provisionally occupied and, therefore, the requirement of remaining at final destination for two years to be able to participate is not required in these cases.

In view of the above, the question raised focuses on the implications for a staff member who does not apply for the merit examination of his/her place of temporary secondment.

As indicated, participation in the competition is not voluntary, but the rule does not establish any consequence in the event that the person occupying the place does not show up for the corresponding provision procedure. Without prejudice to this, it is understood that the solution would be to remain in the same situation in which it would remain in the event that it did participate in the contest, but did not obtain the place, in accordance with article 21.2.b) of Law 30/1984, of 2 August, on Measures for the Reform of the Civil Service, which establishes:

“Officials who leave one post without obtaining another by the systems provided for in the previous article shall be at the disposal of the Undersecretary, Director of the Agency, Government Delegate or Government Subdelegate or similar bodies of the other Administrations, who shall attribute them to the provisional performance of a post corresponding to their Body or Scale.”

In other words, in the event that a temporary seconded person does not apply for the job he or she is occupying and is occupied by another official, he or she would be at the disposal of the competent body which would assign to him or her the provisional performance of a post corresponding to his or her Corps or Scale.

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.