Anti-Fraud Plans Blah, blah, blah? AVAF

Blog AVAF-En

“Blah, blah, blah”…, with this onomatopoeia the activist Greta Thunberg summarized the outcome of the Glasgow climate summit, at COP 26, in relation to the agreements reached and the real impact it will have on the objectives pursued, in summary, pure facade and empty speech. This same feeling is what I am having with the requirement of Anti-Fraud Plans established by Order HFP / 1030/2021, of September 29, which configures the management system of the Recovery, Transformation and Resilience Plan, with the It is intended to provide a framework of integrity to the entities responsible for the management of the Recovery Plan. A preliminary reflection. The non-existent general culture of integrity or Compliance (compliance) plans / programs / systems, and not only as a desirable objective from the perspective of the institutional culture of good governance and good administration, but also when there is a specific legal obligation and enforceable, as it happens in the matter of contracting. As we have repeatedly pointed out, Law 9/2017, of November 8, on Public Sector Contracts (LCSP) includes a clear commitment to integrity and, specifically, in art. 64 imposes on the contracting authorities the duty to take the appropriate measures to fight against fraud, favoritism and corruption, and to prevent, detect and effectively solve conflicts of interest that may arise in bidding procedures in order to to avoid any distortion of competition and to guarantee transparency in the procedure and equal treatment of all candidates and tenderers. Obligation that, apart from some exceptional examples, such as the Integrity Plan in Public Procurement of the Vigo City Council (whose consultation I recommend) has not been fulfilled in general, so it is still necessary to have a robust system of incentives for compliance, and it seems that in this case, access to the financing contemplated by the Recovery, Transformation and Resilience Plan Funds (PRTR) may be sufficient. Or not.   Before entering the matter, the obligatory criticism that deserves how selective this obligation is. As it is framed exclusively as a duty for the projects and subprojects in which the measures (reforms / investments) provided for in the components of the PRTR are broken down, and not for the public management as a whole. As if the destination of the other public funds, which are largely paid for with citizens’ taxes, were not worthy of guaranteeing their correct use, for the defense of the general interest and the improvement of public services. In this way, the technique used in its day by Royal Decree-Law 36/2020, of December 30, which approves urgent measures for the modernization of the Public Administration and for the execution of the Plan of Recovery, Transformation and Resilience. This rule was intended to establish an execution framework with which to avoid the administrative obstacles and bottlenecks detected and that only deserve to be eliminated for this purpose, not for ordinary public management.   Anti-fraud plans, mandatory? The Ministerial Order establishes in its article 6 the obligation that every entity, decision-maker or executor, that participates in the execution of the PRTR measures must have a “Plan of anti-fraud measures”. The purpose of this imposition is to allow you to guarantee and declare that, in your respective scope of action, the corresponding funds have been used in accordance with the applicable regulations, in particular, with regard to the prevention, detection and correction of fraud, corruption and conflicts of interest, as a reinforcement of these mechanisms and thus complying with the obligations that article 22 of Regulation (EU) 241/2021 of the European Parliament and of the Council, of February 12, 2021, imposes on Spain in relation to the protection of the financial interests of the Union as a beneficiary of the MRR funds.   Mistrust in public management? We must not see it that way, it is not a veiled accusation, it is well known that integrity constitutes one of the pillars that backbone the management of the European Union, which it transfers and imposes on the Member States in the execution of funds. There is a clear precedent, the management of the EDUSI Funds, which had already been a step forward in relation to ethical standards in management, by imposing different obligations, such as the declaration of conflicts of interest, having ethical codes, commissions and other issues. But now, with the requirement of what are known as anti-fraud plans, a further step is taken and we hope that it will be extended with greater scope than the PRTR.   Although in reality, non-compliance is part of the DNA of our model. As a sample, a button. The deadline to carry out the transposition work of Directive (EU) 2019/1937 Of the European Parliament and of the Council of October 23, 2019 on the protection of people who report infringements of Union law, despite the time has elapsed and its inclusion in the Annual Regulatory Plan, the transposition law is neither expected nor expected, within the established deadline, December 17, 2021.   Some interesting observations From the reading of the Ministerial Order, the mechanism of operation of the Anti-Fraud Plans can be deduced, but there are a couple of observations that we must highlight. The first, the term. 90 days, how daring, how is it possible to develop an Anti-Fraud Plan in such a short time. I turn the question around, how is it possible that in September 2021 we do not have an integrity system in public administrations, how with a regulatory framework on transparency and good governance, with a multitude of regional and local bodies, specialized in the prevention and fight against fraud and corruption, the first reaction of the majority of public entities, their managers and employees, has been to criticize the shortness of the deadline, the impossibility of complying in just 90 days, with this legal obligation. Two points, the first the one already mentioned, neither in the regulatory framework nor in the configuration of the public management of the XXI century there is room for an administration that has not…

The deadline for transposition of the European Whistleblower Directive ends without the Government of Spain having carried out the transposition work

Press release

València, December 17, 2021.- Today, December 17, the deadline for the transposition into the Spanish legal system of European Directive 1937/2019, for the protection of people who report violations of Union Law, better known as Directive Whistleblower.
The Government of Spain, through the Ministry of Justice, is in charge of the transposition work and had two years to adapt the content of the European Directive to Spanish law.
For this reason, the Valencian Antifraud Agency has issued an institutional statement with which it wants to warn of the breach of that deadline and the repercussions it has on having lost the opportunity to carry out a reform of the Spanish legal system that would allow fighting corruption in a more effective.
The Agency recalls that from this moment the Directive has direct effects and the courts and tribunals must make an interpretation in accordance with it and reiterates the need for the transposition to be carried out for what it offers its collaboration to the Ministry of Justice.
It also urges the creation of a national authority for the prevention and fight against corruption that works in coordination with the regional authorities and the modification of the legal system with special reference to criminal law and the protection of witnesses and experts.
It is also necessary to establish secure and confidential reporting channels that allow even anonymous reports, so that anyone can report possible crimes and actions constituting fraud and corruption.
The Institutional Declaration issued by the Agency makes a special mention of the recognition deserved by persons who report corruption, who must be effectively protected against possible reprisals, as well as recognizing their exemplary nature.

Here you can access the full content of the Institutional Declaration:

https://www.antifraucv.es/wp-content/uploads/2021/12/210617-Declaracion-Institucional-AVAF_Transposicion-Directiva_-2019-1937.pdf

The fine line between administrative irregularity and crime in public procurement

Blog AVAF-En

For several years now, numerous procedures for demanding criminal liability from authorities and officials in the matter of public procurement have been resolved. The most common crime is prevarication in administrative contracting. And it is that, Juan Bravo Murillo already warned in the exhibition he made to Queen Elizabeth II, in 1852, of the danger of public contracting: “Madam: Competently authorized by VM, with the prior agreement of the Council of Ministers, the Treasury presented to the Cortes on December 29, 1850, a bill of contracts on public services, in order to establish certain healthy obstacles, avoiding abuses. easy to commit in a matter of dangerous stimuli, and to guarantee the Administration against the shots of slander … “. But when are we in the presence of criminal behavior and when are we not? Fortunately, not every administrative offense, not every irregularity in the processing of a file, not every omission of a legally required procedure can be classified as constituting a crime of prevarication. But the line between an administrative irregularity and a crime is somewhat blurred. The crime of administrative prevarication, according to the provisions of art. 404 of the Penal Code, refers to “the authority or public official who, knowing its injustice, dictates an arbitrary resolution in an administrative matter, will be punished with the penalty of special disqualification for employment or public office and for the exercise of the right of passive suffrage for a period of nine to fifteen years ”. The injustice contemplated in the Penal Code supposes a “plus” of contradiction with the legal norm that is what justifies the intervention of the criminal law. The jurisprudence has maintained that for an administrative resolution to be classified as a crime of prevarication, it is necessary that its illegality be “evident, patent, flagrant and clamorous”, drawing attention to the question of the easy knowability of the contradiction of the act with the right. To assess the existence of a crime of prevarication, a reiterated jurisprudence (see SSTS 1021/2013, November 26) has indicated that it will be necessary: a) a resolution issued by an authority or official in an administrative matter;b) that it is objectively contrary to the law, that is, illegal;c) that this contradiction with the law or illegality, which may manifest itself in the absolute lack of competence, in the omission of essential steps in the procedure or in the substantial content of the resolution itself, is of such an entity that it cannot be explained with a minimally reasonable technical-legal argumentation;d) that causes a materially unfair result;e) that the resolution be issued in order to enforce the particular will of the authority or official and with the knowledge of acting against the law by arbitrarily eliminating free competition in an unjustified exercise of abuse of power. In this sense, it is not mere illegality but arbitrariness that is sanctioned. As we can see, administrative prevarication involves “knowing arbitrariness”. Mere illegality is not enough, since the administrative regulations already foresee cases of nullity controllable by the contentious-administrative jurisdiction without the application of Criminal Law being necessary in any case, which will thus be restricted to the most serious cases (STS 359/2019 , of June 15). And, although not every absence of procedure leads to the criminal type, it will have criminal relevance if in this way what is sought is to eliminate the mechanisms that are established precisely to ensure that its decision is subject to the purposes that the law establishes for the specific administrative action in which it adopts its resolution. They are, in this sense, essential procedures (STS nº 331/2003, of March 5). To appreciate the contradiction of the administrative act with the law, the courts have stated that: – it must be a blatant and gross contradiction (STS of April 1, 1996),– or resolutions that go beyond the legality in an evident, flagrant and resounding way (SSTS of May 16, 1992 and April 20, 1994),– or of a deviation or distortion of the law in such a rude, clear and evident way that the extra unlawfulness required by the criminal offense is appreciated (STS of May 10, 1993),– Or the arbitrary exercise of power, when the authority or the official issue a resolution that is not an effect of the Constitution and the rest of the legal system but, purely and simply, a product of their will, unreasonably converted into an apparent source of regulations, and the result is an injustice, that is, an injury to a right or the collective interest, and when the arbitrariness consists in the mere production of the resolution -because its author does not have legal competence to dictate it- or in the non-observance of the essential procedure to which its genesis must conform (STS of October 23, 2000). The existence of an arbitrary resolution may be appreciated when omitting the procedural requirements mainly involves the circumvention of the controls that the procedure itself establishes on the merits of the matter (STS 743/2013, of October 11 and STS 152/2015, of October 24, February, among others). Regarding the concept of “administrative resolution”, the Supreme Court, in its judgment of February 24, 2015, establishes that said concept “is not subject to a rigid formal scheme, even admitting the existence of verbal acts, without prejudice to its constancy written when necessary. A resolution is understood to be any administrative act that involves a declaration of will of decisive content, which affects the rights of the administered or the community in general, either expressly or tacitly, in writing or orally, excluding political acts. or government as well as the so-called procedural acts (eg reports, consultations, opinions or proceedings) that implement and order the procedure to make the final resolution viable. Is it possible to maintain that there is a criminalization of administrative law? The doctrine on some occasions has maintained that currently the cases previously dealt with with legal-administrative techniques have been criminalized or, in other words, the use of the penalty at the service of the…