The Superior Court of Justice of Madrid has upheld the appeal filed by an agent of the Civil Guard stationed in Yaiza and has annulled a resolution issued in October 2016 by the Ministry of the Interior, which denied him the compatibility he had requested to continue practicing private activity as a lawyer.
The judgment, dated January 25, concludes that this resolution was not adjusted to law and recognizes the right of this agent "to reconcile his function as a Civil Guard with the exercise of private law practice on his own." However, it specifies that "absolute compatibility cannot be recognized", since the plaintiff "is obliged to scrupulously fulfill his functions and only in that case, and with the full availability of hours and working hours required, could carry out a second private activity".
Thus, the ruling indicates that the agent may practice as a lawyer as long as he maintains "strict compliance with the functions of his position", as well as "respect for the assigned hours and working hours" and "without being able to act in matters related to or referring to the activities carried out by the Civil Guard corps".
The activity "is not in principle related" to his public work
In the resolution denying the compatibility request, the Ministry argued that the private activity that the agent intended to continue exercising was "directly related to the functions he performs at his destination." However, the judgment disagrees with this statement and concludes that "the private activity to be carried out is not in principle directly related to the public service performed."
Regarding the other argument of the Ministry, it was based on the fact that compatibility cannot be granted when the applicant receives a specific supplement that exceeds 30 percent of the basic remuneration, also alleging that this supplement is related to the "full dedication" that is required in his position. To this, the Court responds that this supplement has several components, including one related to the "special technical difficulty, responsibility, danger or arduousness" of the position, which should be understood as a singular, not general, component within the payroll
Therefore, it concludes that the specific supplement that this agent receives does not reach that 30 percent nor can it "accept" the argument of the Ministry of the Interior. Thus, it revokes the resolution and imposes on the administration the payment of the procedural costs generated with this procedure, in a judgment against which an appeal is still possible.
