“The first step in the evolution of ethics is a sense of solidarity with other human beings.” (Albert Schweitzer) An ethical organization is one that is designed so that its structure and operation fully correspond to the general interest, as well as to the principles of legality, objectivity, transparency, effectiveness and efficiency. In addition to the above, and also consequently, in an ethical organization, ethical public performance, the culture of public integrity and the development of the values that are its own are encouraged, projecting those values abroad. We highlight ten elements of ethical organizations: 1.- Well-formed electronic procedures. That the inner workings of an organization should be electronic is something that no longer offers any debate at the present time. This type of operation would cover both the procedures and the rest of the functional processes of the entity. The previous work of cataloguing, simplification and procedural reengineering is key. Debureaucratization is essential. From there, the electronic files are composed of electronic documents signed and / or sealed electronically, formed through electronic actions carried out within a reliable, traceable and traceable system that prevents or hinders to the extreme the possibility of cheating. All this finally ends in an electronic link that must comply with the legal requirements, and on which in turn the transparency and historical memory of the institution will be supported. 2.- Quality electronic services. This point refers to the external part of the electronic administration, referring mainly to the adequate configuration of the platforms for public use, although other instruments such as social networks or telematic attention could also be included. These platforms must allow an effective, intuitive, simple, effective and accessible use. Documents that are already in the possession of the Administration should not be requested, nor should data verifiable by it. In general, bureaucracy should be reduced as much as possible by incorporating responsible statements as far as possible. Excessive bureaucracy is a form of corruption. Priority should also be given to the use of identification systems, unless signature was legally essential. In addition, the various services must ensure compliance with national safety and interoperability schemes. 3.- Automation of simple processes. At this time, a certain degree of automation of certain actions would already be desirable, thus generating an improvement in agility and efficiency. Regulated procedures and acts allow for greater incorporation of this type of mechanism, given that they do not involve a value judgement. The main tool of automation is the electronic seal, especially the organ seal that is automatically stamped in place of the electronic signature of the employee or authority. The procedures, actions and documents to which it will apply must be identified in advance. Beyond the seals (entity, organ, time, etc …), the extraprocedimental operation of the entity must progressively incorporate algorithms, as an advanced programming tool and instrument of help in management, guaranteeing in its case the adequate human supervision especially in cases in which the weighting of the circumstances is necessary. 4.- Measures for the legalization of public procurement. Public procurement has been and still is one of the main focuses of corruption. Before going to any type of tender, the need report must be made. Unless otherwise justified in a specific case, a service that already corresponds to an internal department may not be contracted externally. Competition should be promoted, even in minor contracts, and at least a reliable record of all actions should remain in these contracts. Such information shall be published in accordance with the provisions of the Act. Greater planning will in any case avoid the proliferation of certain minor contracts that correspond to periodic and repetitive needs, and therefore foreseeable. It is also advisable to use so-called rationalization systems, such as purchasing centers or dynamic purchasing systems. The specifications of administrative clauses will contemplate the vicissitudes related to the execution of the contract, thereby reducing the conflict and judicialization, especially in large concessions and long-term contracts. Splitting and, as far as possible, modified splitting should be avoided. All phases of the life of a contract must be carried out through electronic means, especially the tender through an approved public or private platform that allows the encrypted presentation of the offers, but also the preparation, formalization, the administrative part of the execution and the invoicing. In a more advanced stage, the archiving and recording of all performances can be done through the use of blockchain technology. 5.- Active safeguarding of the rights of citizens. The legal system recognizes individuals, as such, rights of different kinds. After the seamless assurance of the free exercise of fundamental rights and, after these, those of democratic and social participation, the degree of development of the so-called administrative rights is relevant as a thermometer of an advanced society. The right of access to information is particularly important in our area. The Administration works for and for citizens. Users should not be left unattended in any way. The offices of citizen attention are currently called “assistance”, nomenclature that must be applied in its literal sense. Ex officio actions should not only be reserved for sanctioning procedures, but also for the recognition or authorization of pre-existing rights of persons who do not request them. Without prejudice to what is already indicated in the point dedicated to the tender, in general the legal procedures that correspond in each case must be adequately articulated and that ensure the concurrence and selection in conditions of publicity and equality (subsidies, selective processes, contracts, authorizations …) . Finally, the most modern dimension of people’s rights must be focused on social justice and sustainability (economic and environmental). 6.- Second generation transparency: open data. Publishing the information established by the Law is no longer enough. In any case, an organization is not transparent only because it has a portal, and much less if it is not fully electronic, accessible, interoperable and if the information it contains is not reusable. At this point we must mention again the right of access to information, the safeguarding of…
AVAF Dialogues on this occasion has Magistrate Joaquim Bosch as a guest, who spoke with the director of the Agency, Joan Llinares, about his book “La patria en la cartera”.
You can also listen to it on our channels:
Spotify ➡️ https://open.spotify.com/episode/4T006ZKWr1cUidqkzixdNO
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(Regarding the guide to the application of anti-fraud measures of the National Anti-Fraud Coordination Service) Preliminate For some years now, there has been a governmental organizational tendency that inserts supposed “independent” bodies within ministerial structures. In fact, for there to be functional independence of a body, at least the following premises must be given: a) That the appointment does not occur by free appointment or appointment nor can it entail free cessation (during the period of its mandate or exercise it can only be dismissed for assessed reasons); b) That in the appointment process the merits and competences of the different candidates are objectively assessed; and (c) That the body is not within the hierarchical structure (enjoying, at least, an effective status of functional autonomy) of the ministerial departments nor is it subject to guidelines or subordinate to other bodies. The reality of these organizational solutions (to some extent fakes or impostadas) begins to offer different modalities, some of them inserted in the Ministry of HFP (for example, OIRESCON, which I already dealt with at the time: https://www.hayderecho.com/2019/03/07/las-instrucciones-de-la-oficina-independiente-de-regulacion-y-supervision-de-la-contratacion/ ; and now, for reasons of contingency, the National Anti-Fraud Coordination Service takes center stage). The phenomenon would require more intense attention on the part of the doctrine. The creation of the National Anti-Fraud Coordination Service (SNCA) was carried out by the twenty-fifth additional provision of the General Subsidies Law, incorporated in 2015 to comply with the provision established in Article 3.4 of Regulation (EU, EURATOM) 833/2013, on investigations carried out by OLAF (European Luca Anti-Fraud Office). However, the provisions of recital 10 of that regulation must be taken into account when it states: “Where a Member State has not set up a specialised service at national level responsible for the task of coordinating the protection of the Union’s financial interests and the fight against fraud, a service (‘the anti-fraud coordination service’) should be designated to facilitate cooperation and the exchange of information. n effective with the Office”. In other words, this service was created in the alternative in the absence of an institution (specialised service, whether it is called an Agency or any other name) which should have, by the nature of things, a status of functional autonomy similar to that provided by OLAF. And as long as it does not exist, which is happening today (although the Draft Law made public yesterday, March 8, by the Ministry of Justice, on the protection of persons who report “on corruption”, does create, although with very limited functions, an “Independent Authority for the Protection of the Informant”) such functions of coordination of the protection of the financial interests of the Union will be carried out provisionally. that service, which has been transferred to national law under the same name as laid down in the European regulation. The logical thing would be for these “provisional” functions to be placed in the specialized body in their day, if it is not designed as a capital institution without effective competences in integrity. What The European regulations do not tell us is how to articulate this “service”. La DA 25ª of the LGS established that “it will exercise its powers with full independence“, a characterization that does not fit very well with the forecast contained in Royal Decree 682/2021, when it is stated that it exercises its functions under the direction and supervision of the National Audit Office, both bodies with the rank of general subdirectorate dependent on the IGAE. Despite the dialectical efforts it entails (for example in article 22 of Royal Decree Law 36/2020 and in the Recovery, Transformation and Resilience Plan), and thus we have sold it to the European Union, calling the IGAE an independent body would not meet the aforementioned requirements either. Admittedly, as was said, the creation of the SNCA was due to that requirement of context (absence of an institution or specialized body to combat fraud in Spain), and in order to comply with that anomie in order to give effect to the provisions of Article 3.4 of the OLAF Regulation. However, in that same paragraph 3.4 “in fine”, an important closing clause is foreseen: “Where appropriate, in accordance with national law, the anti-fraud coordination service may be considered the competent authority for the purposes of this Regulation”. In other words, what the OLAF Regulation does – as it could not be otherwise – is to recognise the obvious: the principle of institutional autonomy as regards the transposition of EU law by the Member States requires that it will be the internal system of distribution of competences of each State. the one that determines to what extent the SNCA will or will not be a “competent authority” for the purposes of the aforementioned regulations. Something that obviously in our case does not occur. The OLAF Regulation therefore gives the task of “coordinating the protection of the Union’s financial interests and the fight against fraud”, which has many limitations in itself in a State of composite structure (with levels of government endowed with regulatory and organisational autonomy), from the consideration of such a “service” as a “competent authority”. Two very marked roles that in the execution of the PRTR must be taken into account. As has been said, these regulatory budgets served to create the aforementioned body in 2015 under the conditions set out above; but this was a contingent measure (in the absence of a specialised institution), derived from the TFEU (Articles 310, 317 and, in particular, 325) and Directive 1303/2013, from common provisions on European funds. and for a management area then limited (European ESI funds of the Multiannual Financial Framework 2014-2020), but that the countercyclical measures implemented with the European Recovery Instrument and with the Recovery and Resilience Mechanism itself, have multiplied by five the financial resources to be implemented in each budget year. In addition, the requirements of the EU’s 2018 Financial Regulation already made it crystal clear that the shared management of European funds required all national authorities to adopt measures to prevent, detect and…
