The Administration can only prevent civil servants from working in the private sector if they are charging a supplement that expressly remunerates the concept of incompatibility.
Thus, the Supreme Court determines it in a judgment of the Administrative Litigation Chamber, of December 5, 2019, in which it establishes jurisprudential doctrine.
The rapporteur, Judge Pico de la Peña, points out that “the assignment of a specific complement for a specific reason must identify its raison d’être in the corresponding List of Jobs in order to be qualified as an incompatibility factor.”
It adds as a doctrine that “the right to compatibility can be granted when the amount of the complementary remuneration does not exceed 30% of the basic remuneration, excluding the concepts that have their origin in seniority and if exceeded, it must be in accordance with the provisions of the Royal Decree Law 20/2012 of July 13 and the Agreement of the Council of Ministers of December 16, 2011 in the field of the General State Administration and what may be established by laws of autonomous public function”.
The Supreme Court analyzes the regulation of incompatibilities and specific complements, as well as the doctrine of the Constitutional Court on the matter.
The court concludes that, in view of the provisions of Law 53/1984, on Incompatibilities of Personnel at the Service of Public Administrations, “the perception by public employees of specific supplements, or comparable concepts, which are expressly included among the components that remunerate, the incompatibility factor prevents, in any case and regardless of the amount of those complementary remuneration, recognizing their compatibility for the exercise of private activities”.
In the specific case examined, corresponding to a technician from the IDEA agency (Andalusian Innovation and Development Agency), the Supreme Court applies this doctrine and says that “there are no elements to conclude that the supplement ‘job’ received by the appellant (in summer from 8 a.m. to 3 p.m. and in winter the same plus one afternoon, to choose between Monday or Tuesday from 4:30 p.m. to 7 p.m.) it is due to ‘incompatibility'”, contrary to what the Andalusian Board maintained , for whom said complement did compensate, among other factors, that of incompatibility.
“It does not appear like this either in the payrolls that it has accompanied, nor does it indicate the certificate of the Agency issued on July 7, 2014 at the request of the interested party, in which the perception of said complement appears, 6,358.21 euros per year plus another dedication of 5,237.68 euros which, according to point 3 of article 36 of the agreement, is intended to remunerate the special dedication of workers who occupy jobs that have been assigned job and permanence supplements,” added the magistrates.
Therefore, since it is not established that the remuneration was expressly due to incompatibility and it is unquestionable that the remuneration per job does not exceed the threshold of 30% of basic remuneration, it condemns the Board to authorize the compatibility requested by the appellant to Carry out activities typical of Agricultural and Forestry Engineering outside of working hours and in the applicant’s free time.
This Chamber of the Supreme Court, in its judgment of December 22, 2014, already considered that in order to make a pronouncement of compatibility or not, the circumstance of the amount of the specific supplements received is not legally accessory or irrelevant for compatibility, and this This has been the case since article 16 of Law 53/1984 considers it decisive for civil servants to be recognized as compatible for the exercise of private activities.
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