Valencia. March 25, 2021. In order to share reflections and proposals for the necessary measures to redirect the path of unjust enrichment to its exceptionality, the Valencian Anti-Fraud Agency in collaboration with COSITAL Valencia have organized a conference-debate.
Under the webinar format, the session had speakers belonging to both external control bodies: Antonio Mira-Perceval Pastor, Síndic of the Comptes Sindicatura de la Generalitat Valenciana and Carlos Cubillo Rodríguez, Technical Director of the First Department of the Prosecution Section of the Court of Accounts; as an intern: Teresa Moreo Marroig, Delegate Comptroller of the Autonomous Community of the Balearic Islands and Jorge García Hernández, General Comptroller of the Gandía City Council and from the consultative sphere: Patricia Boix Mañó, Senior Legal Counsel of the Valencian Community Legal Council.
The day began with a presentation by Vanesa Felip, president of Cosital Valencia and member of the participation council of the Valencian Anti-Fraud Agency, who thanked the participants for their involvement in a session that brought together 126 attendees from both the online platform and from the AVAF YouTube channel.
The interventions and the subsequent debate, moderated by Irene Bravo Rey, head of the AVAF Prevention Service, made it possible to present different points of view tending to the common objective of minimizing irregularities derived from abusive and recurrent practices of unjust enrichment and their economic treatment Through the exceptional figure of extrajudicial recognition of credits (REC, in the case of local entities), the following can be drawn as the main joint conclusions:
1st) The sector of activity in the public sector where this figure is used most frequently is contracting.
2nd) The main causes of its abuse are the lack of budgetary discipline, standardized administrative procedures and planning.
3rd) In general, the abuse of the path of unjust enrichment would be stopped by applying the principles of good administration and, especially, that of legality. Thus, the procedures provided for in the respective sectoral regulations must be applied both to carry out the order of the provision and to compensate who has executed it (in the case of contracting, the provisions of article 42 of the Law of Public Sector Contracts) .
4th) Other adequate prevention mechanisms to stop irregular practices go through the adequate planning of recruitment, aligned with budgets, as well as the sufficiency, adaptation and training of human resources of intervention services, legal and recruitment managers, without prejudice to raising awareness of the situation throughout the organization, and implementing complaint boxes.
5th) For those exceptional cases in which the REC must be resorted to due to unjust enrichment, a clear legal regulation of its procedure should be articulated, in line with the recommendations of the Audit Reports of the RECs of Local Entities, 2018, made by the Court of Accounts and the Sindicatura de Comptes, as well as in the general recommendation of the AVAF. In this sense, the Balearic Islands have specific regulations.
6th) It would be convenient to reflect on the scope of article 28.2e) of RD 424/2017 on Internal Control, for legal certainty and accommodation to the functions of the intervention.
7th) Mechanisms should be articulated that allow to settle possible responsibilities of the authorities, personnel at the service of the Public Administrations and public and private companies that accept and carry out the orders outside the law. Regarding the former, accounting responsibility stands out, compatible with disciplinary, administrative, transparency and criminal legislation. Always bearing in mind the difficulties of management, especially in municipalities with few resources.
The director of the AVAF, Joan Llinares, closed the day by thanking the participants for their contributions and emphasizing the importance of abiding by the principle of legality and the general principles of contracting to close the door to arbitrariness and, with it, the affectation of fundamental rights such as equality. “This type of conference should serve to avoid the normalization of this practice in our administrations. Speaking publicly about these contracting anomalies is the first step to solve this problem ”, Llinares highlighted in his conclusion.
Finally, it should be noted that one of the functions of the Valencian Anti-Fraud Agency (AVAF) is to prevent fraud and corruption and, for this reason, by Resolution of the Director no. 122/2020, of May 11, approved its general recommendation: “The path of unjust enrichment in the public sector: use or abuse?”, Noting how the use of unjust enrichment, is by nature exceptional, has become a common practice in our public administrations, being an important source of risk of fraud and corruption.
You can access the complete sesssion in this link