Institutional Relations

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 correct fraud in internal control systems as an integral part of the principle of sound financial management and in order to protect the Union’s financial interests.  And what was a “Service” (with all due respect) “to walk around the house”, is now transformed, by mere conjuncture, into one more and important  piece of the complex gear of the PRTR’s European funds management system in what affects the transversal principle of strengthening integrity mechanisms.  Too much burden for such a weak organizational-institutional configuration and with such precarious wickers.

The Guide to the Implementation of Anti-Fraud Measures

This introduction was necessary to understand why this MHFP management structure has proceeded to disseminate a Guide for the Application of Anti-Fraud Measures in the Implementation of the Recovery, Transformation and Resilience Plan. The document is dated February 24, 2022, edited therefore when a good part of the executing entities have already proceeded to elaborate and many of them to approve their respective plans of anti-fraud measures.  It would have been reasonable for such a Guide to see the light  a few weeks after the approval of Order HFP 1030/2021.  But that has not been the case.  In any case, welcome.  It is presumed to be complementary to the document of Guidelines for the preparation of anti-fraud plans promoted by the General Secretariat of European Funds, although the patterns of such resources are different, since the Secretariats of State from which they come are different.  It is curious, in any case, how in this area of management of European funds and integrity measures, in the same department, the three Secretaries of State of the Ministry of HFP (also the Ministry of Public Function through the General Directorate of Governance and INAP) intervene (or should do so). A transversal area, but not only in this department, but in all; which makes it more complex to face.

The Guide aims, in my opinion, to place materially (it already was, as has been seen, formally) the SNCA on the map of the management of European funds in terms of the strengthening of integrity mechanisms; but with an approach of financial management control that is its obvious field of action, given its structural location within the framework of the IGAE. It fills (or intends to do so) the vacuum that entails, as has been said, not having any genuinely independent state institution for the prevention and fight against corruption. But it is neither their role nor their place.

However, this Guide adds something very important in its second footnote: it is proceeding, with the technical assistance of the OECD and the funding of the European Commission, to the elaboration of a National Anti-Fraud Strategy (a process that, apparently, began in October 2021) and that is being drafted by the SNCA itself.  (a “competition of its own”, according to the DA 25th of the LGS) , which already warns us that it will only be applicable to the management of European funds.  And it also shows us how a national strategy (applicable, therefore, to the entire territory and to all levels of government) in a State of composite structure such as Spain, is carried out by a governing body attached to a Ministry. Something is wrong with this institutional-organizational scheme. Thus, it is not surprising that, in certain passages of the Guide, “it is invited” by means of recommendations that the different levels of government send to the SNCA the approved plans so that “they can be taken into account in such a process of elaboration of the Strategy”, warning (so that such entities are not  disturbed or see their formal autonomy pretered ) that no observations or evaluation shall be made by the said Service.  The questions that could be asked could be the following: are the anti-fraud plans not published or are they not given, where appropriate, the active publicity required in the respective transparency portals?; will such anti-fraud plans not be incorporated into the information system of the European fund management model (CoFFEE platform); what if so,  why request them? However, as an additional note of no less importance, it should be noted that, as has been recently announced, the plans for anti-fraud measures will be audited by the Court of Auditors and the similar institutions, where appropriate, of the Autonomous Communities.  A crossfire begins in which not a few institutional actors will intervene, in addition to the OCEX and by direct material competence the Europeans themselves (Commission, OLAF, European Court of Auditors, Public Prosecutor’s Office, etc.).  So that of being taken as a joke or as mere compliance with the file the approval of such plans takes other sights.  We’ll see which ones.

The Guide, as established, has three main objectives. Namely:

• Clarify key concepts regarding the protection of the Union’s financial interests. Do not forget that the existential reason for the SNCA is as set out, at least as long as a genuinely independent authority is not created.
• Make recommendations regarding risk assessment and relevant detection measures in relation to fraud, corruption and conflicts of interest, as well as double funding.
• And, finally, establish the information to be provided in the case of a criminal or sanctioning procedure (judicial or administrative) that affects MRR resources.

The most elaborate part of the Guide is undoubtedly that relating to risk assessment, which is very broad and also contains an important Risk Matrix Annex.  The SNCA recommends that the evaluation models already implemented by the decision-making and executing entities be used, especially when they have participated in the management of funds of the Multiannual Financial Framework 2014-2020.  The key question is whether “second-degree” executing entities (e.g. municipalities) should also make use of such risk matrices, which are not exactly easy to complete, although presumably they will be incorporated into the information system that they must complete where appropriate. In any case, it is already noted that the development of a risk assessment model “requires a multidisciplinary evaluation team that knows in depth the processes of the entity and must be carried out objectively and independently”. It is also suggested that the review of the tool be done at least annually (something that Annex II of Order HFP 1030/2021 already says), and the results of audits and controls must be taken into account when incorporating new risks. It also identifies some areas of risk (grants, contracts, agreements or orders to own resources) and includes a methodology for their use based on a document of the European Commission of 2014, on which the  risk assessment model of the structural and investment funds of the MFF 2014-2020 was built. Without a doubt, it is a very complete tool, well explained, but it can be presumed that its punctual application  will offer not a few problems, particularly in public organizations that do not have a culture of evaluation (which is like saying practically all), or that if they do (fruit of the management of European structural and investment funds)  they have it.  become a formal model in its application. Well, doing it well involves a deployment of important resources that we will see who is willing to use or who has them.  In any case, the bottleneck of the management of European funds has only just begun, the bureaucratic mess it entails will be monumental and the organizational stress great, especially when the next one is added to this PRTR (which will be soon).

Also important, together with the detailed treatment of the risk assessment (strong point, clearly of the document), are the references to double financing and the enumeration of some preventive measures, although in these, except for what has already been stated about the evaluation measures and the guiding elements of internal management control (one of its strengths,  since the SNCA, as has already been explained, is inserted in the IGAE), the weaknesses are manifest in some areas of prevention measures (for example, in the ethical codes and in training and awareness; which by their very nature should be promoted by the General Directorate of Governance and by the INAP, which do not appear in any passage of the document). These weaknesses are typical of a still lack of a culture of integrity in public organizations, which must be gradually corrected.  The treatment of conflicts of interest is also very weak, where not even a management protocol appears, perhaps because they have a lot to do with codes of conduct and not so much with the current regulatory framework, which is so much used and abused. And very little is applied. Forwarding to regulatory frameworks does not reinforce integrity or ethical infrastructures.  Mere formal compliance.

Another set of interesting measures are those relating to detection, but especially with regard to Red Flags (Annex II, also very detailed) and computer tools or databases, which are detailed and systematized in detail. The same cannot be said of the complaints channel, where the “hidden”  claim of the Guide is that such complaints are channeled to their own channel (which is still external, except for the AGE), not giving the preference that  internal channels have (by the way, very marked) in Directive (EU) 2019/1937 itself, although it recognizes in lukewarm terms that “it is also possible to create internal channels of complaints“,  although “it would be convenient to wait for the transposition into national regulations” of the aforementioned Directive (a preliminary draft of a law on the protection of whistleblowers, open to contributions until March 17, whose content can be consulted on the website of the Ministry of Justice, has just been approved last Friday, March 4, in the Council of Ministers).  I will be very direct: I do not finish understanding that argument of the Guide that “it is convenient to wait” for the Law (which will be approved, at the earliest, in 2023) because – apart from the fact that the PRTR funds must be committed practically in the years 2021 to 2023, with which this postponement would be useless – the anti-fraud plans are administrative measures  that they can and should apply the aforementioned European regulations, even if they have not yet received legal or regulatory normative development. And therefore, anti-fraud schemes should include those internal reporting channels that are appropriate to the principles of the Directive. That is the proper reading of the directive. At most, if such channels did not exist due to material impossibility (for example, in small municipalities) these complaints could be referred to external channels as subsidiary means.  There is no normative basis to wait. The different levels of government can (and should) perfectly regulate or implement internal reporting channels, in accordance with the provisions of Directive (EU) 2019/1937. It is worrying that a tangential interpretation of the aforementioned Guide acts as a discouraging effect to correctly apply EU law, giving “arguments” for not creating internal channels of complaints or ethical dilemmas.

In corrective and persecution measures, the Guide is much more succinct. Even so, there are contributions of interest with regard to the treatment of the European Public Prosecutor’s Office (although absences as well, such as the European Court of Auditors). And there is one more call for “recommendation” for the decision-making and executing entities of the PRTR “to communicate to the SNCA the initiation of judicial or administrative sanctioning procedures that affect cats financed with the Mechanism.” The SNCA wants, thus, to carry out follow-up work on such sanctioning procedures (it is assumed that within its formal functions of “coordination”) but – not having effective material competence for it – it  has to “beg” by means of “recommendation” to the different entities that transmit this information, because really the underlying problem lies in the fact that this body is inserted in the IGAE and in the  hierarchical structure of the Ministry of HFP, and therefore it cannot be preached that it has precisely an independent character, and even  less in its relations with regional or local government structures (since the authorization of article 21.3 of RDL 36/2020 does not reach it), another thing is its role in the AGE and with the entities of its public sector.

The Guide, therefore, is a very  useful operational  document in the important aspects highlighted, but it also has chiaroscuros, derived from the organizational-institutional design of the Service itself and that it focuses – obviously it is where it has “the competence” – its attention exclusively on the management of European funds. It is thus offered, once again, as the same system of special  management of European funds (different from the “ordinary”: see explanatory memorandum of Order HFP 1030/2021) aims to establish, a two-way administration that is a vivid image of schizophrenic management by foreseeing, in effect, an anti-fraud strategy when you manage European funds and not applying it when you do it with your own .

Final

In any case, it is not convenient that the trees do not let us see the forest. Such attributions to the SNAC fit poorly as perennial competences, since its task would be to create a specialized  independent institution (or attribute its functions to an existing one). Likewise, it is no longer strange that, in constitutional terms of internal  distribution of competences, a governing body  embedded in the structure of a Ministry is recognized as nothing more and nothing less than the competence to coordinate anti-fraud measures (connected to the powers of self-organization).  that they must adopt autonomous and local institutions that are constitutionally guaranteed their own autonomy; unless these powers are understood to be limited to their real material competence, such as facilitating, where appropriate, the exchange of information with OLAF, including operational information.  Little more can be done if we analyze the real and effective role of this Service in the  internal constitutional framework  of distribution of competences.  Although it intends (something not justified or adequate) that the complaints are channeled exclusively through that procedural tube of the SNAC, trying to deactivate (something incorrect, according to Directive 2019/1937) the internal channels (“internal information systems”, the recently approved preliminary project misleadingly calls them) and , likewise, ignore other external channels (which may be recognized in regional legislation, such as the Anti-Fraud Agencies or Offices themselves, which are specialized institutions and endowed with functional autonomy with a status of institutional independence), and also configuring it  as  a “necessary” toll  step (which is not the only possible reading either. ) olaf (to which a complainant can always go directly).

A Strategy for integrity from a holistic approach and not segmented only towards financial resources  from Europe and with a vision more of integrity than “anti-fraud”, as Joan Llinares has also defended from the Valencian Antifraude Agency (https://www.antifraucv.es/de-los-planes-antifraude-a-los-planes-de-integridad/) and Joaquim Bosch in his recent book (La  homeland in the portfolio, Ariel, 2022), is imposed with increasing weight and with more sense.  And such a strategy, if it is not done and drawn correctly by the central government, will end up being approved by the regional and local governments, which some are already in it. A pity that in these issues of integrity leadership is scarce from the institutional place where it should emerge the most.

DOCUMENTATION:

The Guide can be consulted at the following link: https://www.igae.pap.hacienda.gob.es/sitios/igae/es-ES/snca/Paginas/NormativaDocumentacion.aspx

The Draft Law on the Protection of Persons Reporting on Regulatory and Anti-Corruption Infringements transposing Directive (EU) 2019/1937 of the European Parliament and of the Council of 23 October 2019 on the protection of persons reporting on breaches of Union law,  can be consulted on the Ministry’s website at the following link: https://www.mjusticia.gob.es/es/areas-tematicas/actividad-legislativa/normativa/participacion-publica-proyectos-normativos/proyectos-real-decreto