As regards the objective area covered by Law 70/1978, of 26 December, on the recognition of previous services in the Public Administration (hereinafter, Law 70/1978), Article 1.1 limits the scope of the services provided to all the services indistinctly provided in:

“the State Administration, the Local Administration, the Institutional Administration, the Justice Department, the Labour Court and the Social Security Department”.

For its part, Royal Decree 1461/1982, of 25 June, laying down rules for the application of Act 70/1978, of 26 December, on the recognition of prior services in the Public Administration, regulates in article 1 the computable services and the effects thereof:

“1. For the purpose of improvement of trienniums, all the services provided by career officials in any of the Public Administrations mentioned in article 1 of Law 70/1978, of 26 December, whatever the legal regime in which they had provided them, shall be counted, except those that had the character of compulsory personal benefits.”

Thus, doubts arise in relation to the recognition of services provided at the international level, which are analysed:

I. Services provided in Public Administrations of the Member States of the European Union.

With regard to the services provided in the Public Administrations of the Member States of the European Union, it should be noted that Law 2/2004, of 27 December, on General State Budgets for 2005, with effect from 1 January 2005 and indefinite validity, added a new additional provision, the twenty-sixth, to Law 30/1984, of 2 August, on Measures for the Reform of the Public Service, which recognizes the services provided in the Public Administrations of any Member States of the European Union, as well as to the services provided in those States to which, by virtue of the European Union, are ratified

“1. The period of service provision in the Public Administrations of the Member States of the European Union, prior to entry or re-entry into the corresponding Bodies and Scales, Classes or Categories of any Public Administrations, except those services that had the character of compulsory benefits, will be computed for the purposes of trienniums. The calculation established in the previous paragraph shall also apply to the services provided in the Public Administration of those States to which, under International Treaties concluded by the European Union and ratified by Spain, the free movement of workers is applicable in the terms in which it is defined in the Treaty establishing the European Community.”

When determining whether the expression “any Public Administration” includes the Public Administrations of the Member States of the European Union, it is appropriate to make a series of clarifications.

Although the Budget Act for 2005 expressly stated this, Act 70/1978 of 26 December was not amended to allow effective account to be taken, in the Spanish civil service, of the periods of service previously covered by Community citizens in the civil service of other Member States, the Commission decided to bring an action for failure to fulfil obligations on 7 May 2004.

The Judgment of February 23, 2006, which resolves the aforementioned appeal (TJCE\2006\55) states that, “on the basis of the case-law of the Court of Justice (…), the Kingdom of Spain must ensure that the seniority and professional experience acquired by Community citizens in the public service of another Member State are effectively taken into account and grant them, in this respect, the same rights and advantages in terms of classification and remuneration as those accorded to Community citizens who have acquired similar experience in the Spanish public service”. Similarly, the Judgment recalls that ‘when a public body of a Member State proposes, when recruiting staff to fill posts which do not fall within the scope of paragraph 4 of that Article, to take account of previous professional activities carried out by candidates in a public administration, that body may not make distinctions, with regard to Community nationals, on the basis that such activities have been carried out in the Member State to which that body belongs or in another Member State’.

Taking into account the legal bases of this Judgment, in the opinion of this Center, a broad interpretation of the concept “Public Administrations” must be made considering that it includes those bodies or entities that can be understood as integrated in the Public Administrations of the Member States of the European Union, for the purposes of recognition of previous services under the provisions of Law 70/71978, of 26 December.

Consequently, the services provided by bodies or entities integrated in the Public Administrations of third states may be recognized, provided that they are not services of a mandatory nature, for which it will be necessary that the State in question is a Member State of the European Union or that, under the International Treaty concluded by the European Union and ratified by Spain, the free movement of workers is applicable.

II. The case of the United Kingdom.

In the specific case of the United Kingdom, since 1 January 2021 it is not part of the European Union and, therefore, no longer benefits from the principles of free movement of persons, free provision of services and freedom of establishment, without having dealt with equivalent in the matter.

In this regard, neither Law 70/1978 nor the General Budget Law of the State for 2005 establish particular regimes for the case in which the nature of the entity in which services are provided undergoes changes from the provision of services until the moment of recognition.

Given the lack of specificity in the regulation, and in accordance with both a systematic and teleological interpretative exercise of the standard, it is logical to deduce that the requirements for the recognition of services must be met at the time when they are being provided. Thus, it will be in the period of time in which the services were provided in which the requirements of Law 70/1978, and the General Budget Law of the State of 2005 must be met, in particular and as far as this consultation is concerned, that the State in question is a Member State of the European Union.

Asimismo, cabe señalar que el artículo 50.3 del Tratado de la Unión Europea, establece que: “the Treaties shall cease to apply to the State withdrawing from the date of entry into force of the Withdrawal Agreement or, failing that, two years after notification, unless the European Council, in agreement with that State, unanimously decides to extend that period”.

In accordance with the provisions of the aforementioned provision, the Agreement on the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and the European Atomic Energy Community takes place, which provides for a transitional period ending on 31 December 2020.

Taking into account the aforementioned transitional period, in the view of this unit, the services provided in the United Kingdom, as a Member State of the European Union, may be recognised, provided that the required requirements are met and that they are services provided before 1 January 2021, since, as stated above, the transitional period provided for in the Agreement on the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and the European Atomic Energy Community expired on 31 December 2020.

III. Administrations of other states.

In view of the legal framework outlined, it is concluded that the recognition of prior services for the purposes of trienniums, effects in which the consultant focuses his questions, is limited to those services performed for bodies or entities whose legal nature is that of Public Administration of a Member State of the European Union.

IV. Services provided in international organizations.

To determine whether the recognition of the services provided in international organizations is appropriate, we must analyze whether an international organization could be included in the scope of Law 70/1978, that is, whether it can be considered a “Public Administration” for this purpose.

The consequences of the recognition of services mean that the extension of the scope of the regulatory regulation must be considered with restrictive criteria.

In the case of International Organisations, these cannot be automatically included in this concept, for the following reasons:

The Public Administrations in Spain have as fundamental objective the provision of public services through the execution of the policies developed by the governing body of which they depend to comply with the demands of the citizens. In order to guarantee the proper performance of its activities, the legal system generally provides the administrations with a series of exorbitant powers that it can assert in its relations with the citizens affected by its action, although always within the limits set by the Constitution and the laws. Without prejudice to the international relations it may maintain with other countries, the scope of action of public administrations is limited to a specific territorial area (state, autonomous or local), on which they carry out their activity.

For their part, the International Organisations are entities, constituted by an Agreement between several States, which carry out activities for the benefit of the Member States or even for a more general benefit. They carry out their activities within the framework of Public International Law and are subject to the provisions of their Member States in their constitutive agreements. Its action does not have to be aimed at the provision of public services and usually takes place in a transnational area. It is therefore very difficult to subsume an International Organization in the concept of “Public Administration” provided for in Law 70/1978.

However, it must be taken into account that sometimes the services provided in the International Organization were provided “through the Ministry of Foreign Affairs and Cooperation”.

This could mean that the services were provided as an employee of the General Administration of the State and that, therefore, they would be capable of being computed for the purposes of previous services.

To confirm this fact, it will be necessary to determine with whom the interested party was legally linked at the time of providing the services that he intends to be recognized, since, in short, the determining element to establish whether services are to be recognized as “previous services” is that a synalagmatic relationship has been established between the interested party and the Administration in question, in which the interested party provides services to the Administration (from which it benefits) obtaining a remuneration in return, paid by the latter. The dynamics of the missions of an International Organization require the participation of nationals of its member States.

In conclusion, it would not be appropriate to recognize the services provided in the missions of the International Organization as prior services under the provisions of Law 70/1978, of 26 December, on the Recognition of Prior Services in Public Administration. This conclusion is based on two fundamental reasons:

a) The impossibility of subsuming the International Organizations, in the concept of “Public Administrations” provided in article 1 of Law 70/1978.

b) The absence of a statutory or labor legal link between any Public Administration and the interested party at the time of performance of the services that prevents us from considering that said services were provided by or for any Public Administration and, therefore, that they can be considered as services

I. Documentation required.

Finally, reference may be made to the documentation required to certify the previous services abroad, if there is no specific regulation in this regard, it seems that it should be analogized to national requirements, so that the certifications provided in any case involve the same degree of reliability as comparable national documentation.

With regard to the requirement of sworn translation referred to in the consultation, it seems that the provisions of Article 15 of Law 39/2015, of 1 October, on the Common Administrative Procedure of Public Administrations in relation to the language of the proceedings must be generally applied: “The language of the proceedings processed by the General Administration of the State shall be Spanish (…)”.

Article 144 of Act No. 1/2000 of 7 January, on Civil Procedure, which regulates the processing of documentary evidence drawn up in an unofficial language, is also relevant here:

“1. Any document written in a language other than Spanish or, where appropriate, the official language of the Autonomous Community in question, shall be accompanied by the translation thereof.

2. Such translation may be made in private and, in such a case, if any of the parties contests it within five days after the transfer, stating that it is not considered faithful and accurate and stating the reasons for the discrepancy, the Judicial Secretary shall order, with respect to the party in dispute, the official translation of the document at the expense of the person who submitted it.

3. However, if the official translation made at the request of a party proves to be substantially identical to the private one, the expenses derived from it shall be borne by the person who requested it.”

Therefore, it would seem necessary that in the case of foreign documentation through which previous services are intended to be accredited, on the one hand, the “legalization” of the document or certificate of accreditation should be included, so that, according to the system of “apostille” or to which it proceeds in law, the Spanish Administration is duly justified in its authenticity, and on the other hand, the document should be accompanied by an official translation that allows us to understand its literal tenor.

This, however, will be the body conducting the proceedings, as competent to carry out the assessment of the evidence, which will decide whether it is possible, given the specific circumstances surrounding a particular file, to consider the foreign document as reliable in all its length, formal and material, without requiring that its presentation be completely in accordance with the aforementioned points.

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.