The institutional architecture of integrity policies in Spain

(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…

Gender and corruption. Transparency International Spain

On the occasion of the celebration of March 8, International Women’s Day, proclaimed by the United Nations General Assembly in 1977, Transparency International Spain has published the dossier “Gender and corruption”. For his presentation, he will hold a webinar on Tuesday, March 8, at 10:30 a.m. https://transparencia.org.es/8m-dia-internacional-de-la-mujer-inscribete-al-webinar-sobre-genero-y-corrupcion/ Throughout the entire dossier, reference is made to a large number of studies that will allow those most interested in the matter to delve into the issue. Sources, resources and materials, as well as relevant articles from Transparency International (TI) that can be found here. https://transparencia.org.es/wp-content/uploads/2022/02/Dossier-Ge%CC%81nero-y-Corrupcio%CC%81n-TI-E.pdf What is the relationship between gender and corruption? Given the first question raised by TI Spain, the complex relationship between gender and corruption can already be glimpsed, and it will be necessary to study it from different points of view. Men and women are affected differently by the phenomenon of corruption, since it produces worse effects on poor and vulnerable groups, and it must be remembered that, according to the UN, it is estimated that 70% of the poor in the world are women. One of the effects produced by corruption is the increase in obstacles to the achievement of equality, in all senses, also in the field of gender equality, by preventing the full development of civil, social and economic rights of the woman. Women, by traditionally developing a caretaker role in the family sphere, have been deprived of the possibility of actively participating in social and political spaces, and leading the direction of many of the transformations that have taken place in society in which last decades. In turn, women, depending on services such as health or education, appear, according to the TI dossier, as more vulnerable to certain types of bribery. It is necessary to advance in the empowerment of women in all senses, also in the assumption of a relevant role in the fight against corruption. “Gender and corruption” by Transparency International Spain specifies that there is no conclusive evidence to confirm that women are less corrupt than men; but the dossier details that the fight for women’s rights and their participation in public life are associated with better governance and lower levels of corruption in many countries around the world. Perceptions, attitudes and behaviors of women towards corruption. Among the studies cited by “Gender and Corruption” of Transparency International, Rivas (2012) or Lambsdorff, Boehme & Frank (2010) specify that women tend to behave more honestly than men and are more concerned about equity in their relationships. decisions. Even more, related to the behavior of women towards corruption, it is pointed out by Swamy et al. (2000) the claim that “women are less involved in bribery and less likely to approve of taking bribes” and conclude that countries that have made the most progress in gender equality generally “experience lower levels of corruption” (Swamy et al. 2000). The reality reflects the underrepresentation of women in decision-making positions in business and politics, these being the environments where the greatest risk of corruption occurs. This does not mean that women would act in a less corrupt manner if they had access to high-level management, if it does not increase the real and effective equality of women and men in society as a whole. Therefore, it is concluded that progress must be made in said equality, and the full participation of women in public life must be achieved, but not as an “anti-corruption strategy”; but because it is a human right. Corruption and bad governance, according to the dossier, have a negative effect on the participation of women in politics, trapping them in the vicious circle of gender inequalities, lack of empowerment and corruption (Sundstrom & Wangnerund 2013). Women as part of the solution: gender approach in the fight against corruption “Gender and Corruption” by Transparency International Spain also focuses on the forms of corruption that most affect women: sexual extortion and human trafficking. The dossier claims that they be recognized as a corruption problem so that resources and efforts can be concentrated to eradicate them. From “Thinking” to “Doing” Transparency International proposes a series of measures to address the issue of gender and corruption: Collect, analyze and disseminate data disaggregated by gender in order to design effective public policies. Recognize and address specific forms of corruption based on gender. As is the case with sexual extortion (sextortion) Support the participation of women in public and political life. Gender quotas and reducing unpaid work with lower wages will facilitate the increase in women’s participation in all areas of society. Include women in decision-making against corruption. Half of the population cannot be left out of the spheres of political, economic, administrative and social decision. Empower women. Being aware of the rights that they have as people is a way to minimize the risk of being greater victims of corruption risks. Gender-sensitive reporting mechanisms. Use existing platforms. The dossier exposes for your knowledge the Feminist Open Government Initiative of the Open Government Partnership, the Inter-American Commission on Human Rights (IACHR), the Extractive Industries Transparency Initiative and the Organization for Economic Cooperation and Development (OECD) as examples of existing platforms already working in this field. It is necessary to become aware of the negative effects that corruption produces in society and in the democratic and institutional system that is also directly affecting women, as citizens of right. Their traditional role as caregivers has prevented them from hampering their role as active citizens of society, so it is necessary to advocate for ending the existing imbalances in the exercise of power and decision-making between women and men. The data from “Gender and Corruption” state that they are not conclusive in the statement that, if women who occupy leadership positions would be intrinsically less corrupt than men, and details what they will be in this case, “other factors such as the political context and institutional, culture and gender inequalities to explain the links between female representation and levels of corruption”. Claiming the presence and active role of women in public…

Of the antifraud plans to integrity plans

The new legal framework for public integrity following the Whistleblowers Directive and Order HFP 1030/2021. The role of Anti-Fraud Agencies  On September 29, the Ministry of Finance and Public Function approved Order 1030/2021 configuring the management of the Recovery, Transformation and Resilience Plan[1], PRTR in the future, with the aim that The Public Administrations adapt the management procedures and the control model in accordance with the standards required by the European Union both from the formal and operational point of view.  and all this is limited exclusively to the management of European funds. According to the aforementioned Ministerial Order, the procedures to which it refers must contemplate  the requirements established to achieve effective equality between men and women, territorial cohesion, respect for the environment, incentives for digitalization, the fight against fraud and corruption, and must be identified.   the ultimate beneficiaries of the aid, as well as contractors and subcontractors. The Order itself thus recognizes that  the requirements stated are not contemplated in the Spanish public administrations, immersed in their dynamics of “traditional management”, with the scope required by the European Union, and therefore  must  necessarily be introduced in order to achieve the objectives  planned for the implementation of the funds from the NextGeneration Programme (EU).[2] In other words, and as far as the fight against fraud and corruption is concerned, the Order would say: That Spanish Public Administrations lack mechanisms comparable to the minimum standards required by the EU in the fight against fraud, corruption and conflicts of interest. That the area to which the aforementioned Order is addressed is exclusively to the management of the European funds of the PRTR. That the rest of the funds and especially the own funds whose origin is the taxes of all Spaniards, being outside the scope of the Order, do not interest anti-fraud plans and can continue to be managed in the “traditional” way. The Ministry of Finance and Public Function itself recognizes as true that the Spanish State lacks a global strategy to prevent and combat fraud and corruption and it is discouraging that this opportunity to extend anti-fraud plans to all public activity regardless of the origin of the public resources that are managed is missed.  Moreover, the arrival of European funds and the demands for guarantees by the EU for an effective, efficient management free of fraud and corruption, would be a magnificent opportunity for Spain to approach European standards in terms of the fight for integrity and public ethics  and good practices in our public sector. The Ministerial Order, despite being so unambitious, has raised surprises and controversies exacerbated by the very short period granted to the administrations to present their respective anti-fraud plans: 90 days that expire at the end of this month of January. Part of this period has elapsed with the recipients wondering what an anti-fraud plan is, how it is done and who executes it.  For public administrations, the Order creates new functions that must be integrated into a terrible civil service context, of staff decimated by the limitations imposed by the postery budget laws to the great crisis of 2008 that over the years have  created a great gap in the transmission of knowledge and in the generational renewal of the institutional human factor. In this context, any new burden without solving these shortcomings implies further straining public organizations that, lacking selection processes, renewal and training of career officials have had to resort to outsourcing or the figure of interims who have become precarious.  especially the local, regional and to a lesser extent the state administrations. In this context, all those administrations or related public entities that are going to manage or execute PRTR funds must have, within the aforementioned period of 90 days, their corresponding Plan of anti-fraud measures that allows them to guarantee and declare that, in their respective field of action, the funds have been used in accordance with the applicable rules and in particular with regard to prevention,  detection and correction of fraud, corruption and conflicts of interest. For the purposes of defining the concepts of fraud, corruption and conflict of interest, the Ministerial Order refers to the EU’s own rules and in particular to its Directive 2017/1371[3] which limits corruption to the conduct of bribery or bribery of  officials in its broadest sense which includes the authorities themselves; fraud,  referring to the conduct of deception and falsehood carried out by the beneficiaries of the funds in their justifications; and the conflict of interest to the existence of a particular interest that prevails and influences the general interest by diverting the action of officials and authorities from their public objectives.  To these behaviors, we must add the others typified in our criminal code as crimes against the public administration, especially embezzlement, influence peddling, negotiations prohibited to officials or prevarication itself. The Order establishes a methodology based on a test model that starts with the declaration at the highest level of each public administration of its firm commitment to the fight against fraud and corruption; a self-assessment where the specific risks, their impact and probability of occurring in the key processes  of the development and execution of the PRTR are identified. with a follow-up of periodic review; and a structure around four elements of the so-called anti-fraud cycle: prevention, detection, correction of irregular conduct, prosecution and recovery of improperly executed funds. Likewise, it is inferred, although partially, in principles and foundations that are typical of integrity plans such as transparency, the existence of a code of ethics and conduct for the entire organization; the provision of training on public ethics to its employees and authorities;  and the existence of procedures to identify and resolve conflicts of interest.  In this sense, the Valencian Anti-Fraud Agency has prepared, published and made available to all Public Administrations basic materials such as the “Guide to develop a Public Integrity Plan: Roadmap and Facilitating Annexes“[4] that together with previous works of the Agency such as “ Reflections on conflicts of interest: their ignorance, the…