The TS endorses that Marlaska prevails over the contest and not the seniority to promote to police officer
The Supreme Court has dismissed an appeal filed by the Spanish Police Confederation (CEP) against the royal decree of October 11, 2022, which approved the Regulation of Selective Processes and Training of the National Police.
Contrary to what the CEP union maintained, the Contentious-Administrative Chamber of the high court does not see a “comparative grievance” nor does it appreciate “arbitrariness” in that the norm postpones the route of seniority, for the benefit of the contest-opposition, for internal promotion to the category of Police officer.
The Regulation approved by the Ministry of the Interior, in force since last October, establishes that the categories of Police officer, sub-inspector, inspector, chief inspector, commissioner and main commissioner will be promoted by the modalities of selective seniority and competition-opposition.
[Marlaska will place similar high-ranking police officers in the embassies just the same week of 23-J]
The percentages of vacancies reserved for the different modalities are 60% for seniority and 40% for competition-opposition in all categories, with the exception of promotion to the category of Police officer. For promotion to officer from the police category of the basic scale, the percentages are the inverse: 40% of the vacancies are reserved for seniority and 60% for competition-opposition.
The CEP started in its appeal that seniority is “one of the guiding principles that govern the professional career of the National Police, along with those of objectivity, equality, merit and capacity.”
“Without justification”
In his opinion, the exception provided for in the Regulations to promote to the officer category would be a “comparative grievance” with respect to the promotion for the other categories, “differential treatment that affects 73.36% of the troops of the Corps and lacks justification” , he affirmed.
The resource indicated that, if it is a matter of there being an “adequate balance between experience and training” to favor both the professional career and the incorporation of talent, according to the Report on the Analysis of the Regulatory Impact of the Regulation, “this objective is not achieved when the contest-opposition is favored more than seniority, which includes experience and talent”.
The Supreme Court has accepted, however, the arguments of the State Attorney in defense of the contested rule.
“progressive” process
The legal representative of the State highlighted that, since the promulgation in 1995 of the first Regulation of Selective Processes, “the possibilities of being promoted from police officer to officer by means of selective seniority have been expanding and improving.”
Thus, in that first Regulation, promotion within the basic scale was only by competitive examination.
In the 2015 Regulations, one third of the vacancies were reserved for the seniority route for promotion to officer and the remaining two thirds for the competition-opposition (unlike for promotion in the rest of the categories).
The 2022 Regulation “follows a progressive process” -defended the State Attorney- “and the quota of vacancies reserved for the selective seniority modality is expanded, going from a third -33.33%- to 40% of the vacancies”.
In the opinion of the defender of the Administration, “it is in the interest of the Police and its members that priority be given to promotion through competition, since it facilitates rapid promotion without waiting the necessary time to be called for seniority, with improvement of their professional projection “.
In a sentence with a presentation by magistrate José Luis Requero, the Contentious-Administrative Chamber considers it significant that the distribution inaugurated in the 2015 Regulation was not questioned by the CEP, “which did challenge it but for other reasons.”
The Regulation now questioned “maintains, already expressed in percentages, that trend towards progressive implementation” of the seniority modality, “which would explain why, after the seven years between the 2015 and 2022 Regulations, it maintains the distribution criteria only by increasing the percentages in favor of selective seniority, which is in line with what is supported by CEP”, he points out.
“If the contest-opposition continues to prevail,” he adds, “it is due to the dragging of years in which it was the only promotion system unlike the rest of the scales.”
[The judge forces Marlaska to summon a position in the Police after 5 years occupied “provisionally”]
For the high court, “the incentive to promote while avoiding hindering is thus enhanced, if promotion by selective seniority becomes general, unlike the other scales, which explains, for the purposes of the principle of equality, the difference in treatment.”
The “sparingness” of the contested norm in terms of the justification of this difference “is not indicative of arbitrariness”, concludes the Supreme Court. “The challenged exception is explained if we look at the regime of the basic scale within the National Police Force, something that was by no means unknown and that started from the regulatory process that began peacefully in 2015.”