The Valencian Antifraud Agency issues a general recommendation on the abuse of unjust enrichment in the public sector

València, May 19, 2020.- One of the functions of the Valencian Anti-Fraud Agency (AVAF) is to prevent fraud and corruption and for this reason it has drawn up a general recommendation under the title: “The path of unjust enrichment in the public sector: use or abuse? ”.

The AVAF has drawn up a general recommendation on unjust enrichment which is motivated by the verification of how unjust enrichment has gone from being an exceptional figure by nature to a common practice in our public administrations, becoming an important source of risk of fraud and Corruption, insofar as the focus is placed on the economic files that allow the payment to who has executed a benefit without legal protection or prior control to avoid their impoverishment (and the corresponding enrichment of the Administration).

Debugging the administrative action that, apart from the legal channels, motivated the commission would help to redirect this figure to its exceptional level. However, no rule provides for the way to do it, so, instead, its process is redirected to the economic file of “compensation for unjust enrichment” (REI, in the case of the autonomous administration) or “extrajudicial recognition of credits” (REC, in the case of local administration), thus becoming generalized as a compensation solution for payments.

All this calls into question the submission of the Administration to the Law and the Law and, in areas such as public sector contracting, “normalizes” the flight from its general principles of equality, transparency and free competition, putting in check the free competition in the normal functioning of the markets and the effective and efficient use of public resources.

As pointed out by the National Securities Market Commission (CNMV), the absence of competitive competition in public procurement produces an economic loss for the public coffers that has been estimated at some 47,500 million euros per year due to an upward deviation of 25% in hiring budgets.
This 56-page general recommendation includes the main risks involved in the use of unfair enrichment, such as the lack of planning and application of the contracting procedure, the authorization of irregular or unjustified payments, the alteration of the duration of the contract or the absence control over investment, among others.

To address the abuse of unjust enrichment, the AVAF proposes up to 11 prevention mechanisms that can be adopted by public administrations and that in practice involve implementing a culture of ethics and public integrity.

Among the proposed mechanisms are the planning of public policies and their execution, submission to the mandate of the Law to carry out orders and to compensate their payment, transparency to guarantee effective accountability, the provision of qualified personnel in services. legal as well as management and internal control services.

This is undoubtedly one of the points where the general recommendation places the greatest emphasis, as it points out the responsibilities that the abuse of unjust enrichment may have for the authorities and personnel at the service of public administrations, among which are disciplinary responsibility, responsibility for breach of good governance regulations, accounting responsibility or criminal responsibility regarding the possible existence of prevarication, bribery, influence peddling or embezzlement. Also, remember the possible responsibility of the entities that have executed the provision.

Finally, the document contains 6 conclusions and 10 recommendations are proposed in order to help unjust enrichment revert to the nature of exceptionality.

The Director of the AVAF has declared about the publication of this recommendation that “unjust enrichment recovers a special importance in these moments of crisis due to COVID-19 since during the state of alarm the public administrations have resorted to the hiring of emergency and we must not forget that these contracts cannot be left out of the necessary justification, transparency and control ”.

The document has been sent, among others, to parliamentary groups, regional councils, town councils, councils, Síndic de Greuges, Audit Office, Economic and Social Committee, Consell Jurídic Consultiu, universities, College of Secretary, Auditors and Treasurers (COSITAL), official associations of lawyers, administrative managers, unions, employers’ associations, public administration personnel associations, etc.


General Recommendation Unfair Enrichment
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For more information you can reach or phone 962 787 450

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The Valencian Antifraud Agency offers to prepare the expert report to which 5 experts refused in the alleged corruption case of Enrique Ortíz in Alcoi

València, May 19, 2020.- Last Sunday the head of the Court of First Instance number 2 of Alcoi decreed the provisional dismissal of the proceedings in the case of the extra costs of the works in the Calderón Theater of Alcoi by which it is investigated to the businessman Enrique Ortiz.

The reason for the dismissal is that on up to 5 occasions an attempt had been made to appoint an expert to issue an expert report on the cost overruns of the works, which are estimated at 1.2 million euros and on the five occasions they had refused to carry it out. of said report adducing various causes.

Upon learning of this situation, the Valencian Anti-Fraud Agency (AVAF) contacted the investigating judge to offer the Agency’s services for the study and issuance of the corresponding expert report.

According to Law 11/2016, of November 28, by which the Agency is created, this entity can collaborate with judicial bodies and prepare reports of all kinds, including expert reports.

The head of the court has positively valued the offer of the AVAF to prepare the expert report, which will allow the case to be reopened and the investigations to continue.


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20 people who complain about corruption receive protection from the Valencian Anti-Fraud Agency

Valencia, May 15, 2020.– This is one of the data provided during the meeting held electronically by the working group on the protection of complainants of the Citizen Participation Council of the Valencian Anti-Fraud Agency.

It is the first time that this group has met since the Council for Citizen Participation was established in October 2019. In that same constitutive session, it was decided to create two working groups: one dedicated to the protection of complainants and a second group focused on the field of prevention and public ethics.

Among the items on the agenda, the situation of the complainants who receive protection from the Valencian Anti-Fraud Agency has been analyzed, referring to the data collected in the Activity Report for 2019, which was published last month of March.

According to the data provided, during the year 2019 the request for protection of 5 new complainants was approved, who join 15 others in force from previous years and who maintain their situation until the investigations are completed, the vast majority of them being processed before the judicial authorities.

As a general rule, these whistleblowers who report or warn of facts and behaviors that may constitute fraud or corruption receive reprisals as a result of the complaint, in the form of pressure, threats, workplace harassment, demotion or even dismissal. The Valencian Antifraud Agency provides them with legal advice and ensures that these acts of intimidation, direct or indirect, do not occur.

Another issue discussed during the meeting was the need to transpose Directive 2019/1937 of the European Union on the protection of those who report violations of European Union law. This directive came into force in December 2019 and Spain has two years to transpose it into its legal system.

The importance of this directive resides in the fact that with this regulation protection and legal advice will be given for the first time in our country, among other issues, to those persons who report crimes of fraud, corruption, tax evasion or damage to the environment.

Among the members of the working group is the Spanish Association of Obliged Subjects in the Prevention of Money Laundering (ASEBLANC); Transparency International Spain; Union of Technicians of the Ministry of Finance (GESTHA); Association of Alerters against Corruption (AcC); Foundation for Justice and the International Baltasar Garzón Foundation (FIBGAR).


The Council of Citizen Participation was created by Resolution of February 12, 2019 and is regulated in Title IV of the Regulation of operation and internal regime of the Valencian Anti-Fraud Agency of June 27, 2019.

Links to the 2019 Activity Report and the Press Release

Annual report 2019 in PDF
Press note in PDF
Editable press note

For more information you can reach or phone 962 787 450

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