Valencia, July 24, 2024.- The new director of the Valencian Anti-Fraud Agency, Eduardo Beut González, took office in a ceremony held at the Hall of Mirrors of the Valencian Corts.
The event was attended by the president of the Generalitat, Carlos Mazón, the president of the Corts, Llanos Massó, the syndics of the parliamentary groups of the Corts and the ministers of Justice and Education and Culture, Salomé Pradas and José Antonio Rovira, and staff of the Corts.
In the popular and cultural imagination of our society, to think about whistleblower protection is to evoke the US Administration offering a new identity and a new life, to protect those who denounce the inner workings of a criminal organization and involve their former partners in crime. This is the case of WITSEC, which emerged in 1971 to protect a New York mobster who had broken the omertà code and cooperated with the authorities to condemn the Italian mafia.
In Spain, for public employees and for the legal system, talking about whistleblower protection is synonymous with the Valencian Anti-Fraud Agency. The AVAF is a pioneer in whistleblower protection with more than seven years of experience in the prevention and fight against fraud and corruption and, in addition, it was for years the only authority in Spain that offered protection to people who reported fraud and corruption in the Public Administration.
The comparison between the two systems, the American and the Valencian, denotes a deep abyss between the different ways in which protection can be offered. The protection of witnesses in North America represents a drastic act of rebirth, a flight to a new horizon, while the protection of the whistleblower in Spain seeks to maintain their immunity in their original environment, creating an invisible refuge from reprisals. Both, however, share the same ideal: the defense of individual courage in the face of adversity, demonstrating that, regardless of ideology, justice always seeks to protect those who dare to raise their voices.
Currently, the protection of people who report regulatory infringements in our legal system, which was only recognised by Law 11/2016 of the Valencian Anti-Fraud Agency, has gone beyond the scope of the Valencian Community and has received a strong boost in our legal system thanks to Directive (EU) 2019/1937 of the European Parliament and of the Council of 23 October 2019, but nevertheless, it should be highlighted the nature of the Valencian Agency as an authoritative voice, which notably anticipated both Directive (EU) 2019/1937, and State Law 2/2023, of 20 February, on the protection of whistleblowers and the fight against corruption, by means of Law 11/2016, of 28 November, on the Agency for the Prevention and Fight against Fraud and Corruption of the Valencian Community, which has turned out to be a legal instrument of the first order in the prevention and fight against fraud and corruption.
The time that has elapsed since the entry into force of Law 11/2016, regulating the Agency, together with the solid and constant development of the Valencian Anti-Fraud Agency in the exercise of its functions, has allowed a series of technical-legal circumstances to emerge in the law regulating the Agency, of 2016, which advised its reform, which has been verified by the Valencian legislator through Law 3/2024, of 27 June, of the Generalitat, amending Law 11/2016, of 28 November, of the Generalitat, of the Agency for the Prevention and Fight against Fraud and Corruption of the Valencian Community.
Law 3/2024 approved by the Valencian Parliament is the second amendment to Law 11/2016, which was already amended by Law 11/2018, of 27 December, on fiscal measures, administrative and financial management and organisation of the Generalitat, with regard to article 1.1, to clarify its legal nature; Article 14.3, which provides for the dismissal effects of the lack of express resolution in proceedings related to the protection of whistleblowers; Article 29.2, clarifying the regulations applicable to its civil servants; article 30.6 to incorporate the subjection of its economic and budgetary management to the Intervention of Les Corts, in addition to that corresponding to the Audit Office, and finally, section two of the first transitional provision, regarding the processing and approval of the operating regulations and internal regime of the agency.
The current modification operated by Law 3/2024 responds, as the legislator expressly points out in its preamble, <<to the desire to complete the legislative task undertaken in order to provide the agency with a more clarifying law in the aforementioned aspects that enables a better functioning of the agency as a whole and its better service to citizens.>>
Having made this important observation, the following comparative table of the new features of the 2024 Law is set out below, as well as some brief reflections on these changes.
New wording of Law 3/2024 | Previous wording of Law 11/2016 |
1. The purpose of this law is the creation of the Agency for the Prevention and Fight against Fraud and Corruption in the Valencian Community, which is attached to Les Corts. Coordination protocols will be created with the Audit Office and with the Intervention of the Generalitat. It is configured as an entity with its own legal personality and full capacity to act for the fulfillment of its purposes. This law regulates the legal regime, operation and sanctioning procedure of the agency. It also establishes the criteria for the provision of the agency’s management and staff. | 1. The purpose of this law is the creation of the Agency for the Prevention and Fight against Fraud and Corruption in the Valencian Community, which is attached to Les Corts. It is configured as an entity with its own legal personality and full capacity to act for the fulfillment of its purposes. This law regulates the legal regime, operation and sanctioning procedure of the agency. It also establishes the criteria for the provision of the agency’s management and staff. |
The modification does not bring any novelty, being in any case correct the positivization of the relations of collaboration and coordination that were already carried out between the Agency and the other bodies of the Valencian Community, including the Audit Office and the Intervention of the Generalitat.
New wording of Law 3/2024 | Previous wording of Law 11/2016 |
The agency shall be governed by the provisions of this law. With respect to everything that is not provided for in this law and in its implementing regulations, the regulations in force on common administrative procedure will apply. For the imposition of the sanctions established in Chapter III, the provisions provided for in this law will be followed, as well as in that of the common administrative procedure of the public administrations or, in the case of infractions attributable to personnel in the service of entities, the civil servant, statutory or labor disciplinary regime that is applicable in each case. Directive (EU) 2019/1937 of the European Parliament and of the Council of 23 October 2019 on the protection of persons who report breaches of Union law shall apply to allegations of fraud, corruption and any other activity contrary to the law that is detrimental to the public interest. as well as the protection of persons who report such infractions. The Agency’s external public sector whistleblowing channel and its reporting procedure shall be governed by this law and its implementing regulations, by Directive (EU) 2019/1937, as well as by Law 2/2023, of 20 February, regulating the protection of persons who report regulatory breaches and the fight against corruption, in what does not conform to the directive. The whistleblower will enjoy the protection established in Law 2/2023, of 20 February, regulating the protection of persons who report regulatory and anti-corruption breaches and, additionally, in the provisions of this law and its implementing regulations. | The agency shall be governed by the provisions of this law. With respect to everything that is not provided for in this law and in its implementing regulations, the regulations in force on common administrative procedure will apply. For the imposition of the sanctions established in Chapter III, the provisions provided for in this law will be followed, as well as in that of the common administrative procedure of the public administrations or, in the case of infractions attributable to personnel in the service of entities, the civil servant, statutory or labor disciplinary regime that is applicable in each case. |
The legislative amendment is of importance, and this because, although it is clear that the Valencian Anti-Fraud Agency is the competent regional authority referred to in article 16.2 of Law 2/2023, nevertheless some minority doctrinal sector doubted this issue, which is why the legislative amendment was advisable to clear up any type of doubt, by configuring the Agency as the administrative authority for whistleblower protection in the Valencian Community.
The Agency has the powers attributed to it by Basic Law 2/2023, approved in the Spanish Parliament, with respect to the Valencian public sector, as an external channel for complaints, keeping the Register of Persons Responsible for Internal Information Systems (RRSII), protection functions and support measures for whistleblowers, as well as sanctioning powers.
New wording of Law 3/2024 | Previous wording of Law 11/2016 |
2. The material scope of action of the agency, for the purposes of this law and its implementing regulations, is specified in the following acts or conduct: (a) Corruption: Use or misuse of power or resources of public origin for purposes other than those granted; use or abuse of public power to obtain advantages, benefits or any other private advantage, one’s own or that of third parties, or for any other purpose contrary to the legal system. b) Fraud: An act tending to circumvent a legal provision in a deceptive manner; inappropriate and harmful use of an organization’s resources and assets, contrary to truth and righteousness. c) Administrative irregularities and behaviour constituting an administrative or disciplinary offence, in which a potential situation of fraud or corruption underlies. (d) Conduct and activities that are reprehensible for being contrary to objectivity, impartiality, efficiency, probity, integrity, public ethics and good governance, as well as the making of superfluous and unnecessary expenditure of funds of public origin, whether or not they involve a direct infringement of the positive legal order.’ |
The new regulation of Law 3/2024 has come to define the material scope of action of the Agency, and this through the legislative positivization of the concepts, unknown in our legal regulation, of corruption and fraud, which are delimited in the terms set out.
The definitions set out in the new regulation of Article 3 represent a real doctrinal advance, and it should be noted that they are the legal embodiment of the definitions made at the time by the Resolution of the Director of the Agency dated 5 October 2020, which represented a pioneering advance in the delimitation of these concepts.
New wording of Law 3/2024 | Previous wording of Law 11/2016 |
‘Article 14 Statute of the complainant 1. Status of the complainant a) The agency’s action will pay special attention to the protection of whistleblowers. For the purposes of this law, a whistleblower is considered to be any natural or legal person who reports facts that may give rise to legal responsibilities, before the agency itself or any other administrative body, the Public Prosecutor’s Office or the judicial authority. Whistleblowers, for these purposes, are all those who alert, communicate or reveal information of this type. […]» | Article 14. Status of the complainant. 1. Status of the complainant. a) The agency’s action will pay special attention to the protection of whistleblowers. For the purposes of this law, a whistleblower is considered to be any natural or legal person who reports facts that may give rise to the demand for legal liability. […] |
The legislative amendment is a technical clarification to bring order to the interpretation of the scope of the protection offered by the Agency. On this issue, it should be noted that Community Directive 2019/1937 does not establish any differentiation as to the protection to be offered based on the authority to which it is reported. However, the High Court of Justice of the Valencian Community had been upholding a particular interpretation that indicated that the granting of protection was only appropriate when the communication made by the informant had been made to the Agency itself, excluding those cases in which the informant reported to other administrative bodies, to the Public Prosecutor’s Office or to judicial authorities. The new legal regulation resolves this issue, settling the debate on this interpretation by specifying that protection is appropriate in any case.
New wording of Law 3/2024 | Previous wording of Law 11/2016 |
1. The agency shall be directed by a director, who shall exercise the position with full independence, irremovability and objectivity in the performance of the functions and within the scope of the agency’s own powers, and shall always act in full compliance with the law and the law. The director will have the status of public authority and his or her remuneration will be determined by agreement of the Les Corts Board. In the event that he holds the status of career civil servant, his remuneration may not be lower than that of the post he had been performing in his administration of origin. […] 5. The director will be elected by the Plenary of Les Corts by a three-fifths majority. If it does not obtain the required majority, a new vote will be held in the following ordinary plenary session; In this case, the candidacy that obtains the absolute majority will be elected. If the required majority is not obtained in either of the two ballots, new proposals shall be made by the same procedure within a maximum period of one month. […] 7. The functions of the person in charge of the management of the agency are the following: a) To hold the legal representation of the agency. b) To direct and coordinate all activities and to perform the superior leadership of its personnel. c) To open and cancel accounts in financial institutions, and to authorize expenses and order payments. d) To sign contracts and agreements. e) To approve the annual report of the agency and to transmit it to Les Corts. (f) To impose the penalties established by law. (g) The other functions provided for in this law, in the regulations governing the operation and internal regime of the agency and those inherent to its status.’ | 1. The agency shall be directed by a director, who shall exercise the position with full independence, irremovability and objectivity in the performance of the functions and within the scope of the agency’s own powers, and shall always act in full compliance with the law and the law. The director will have the status of a public authority and will be assimilated to a senior position with the rank of director general. […] 5. The director will be elected by the Plenary of Les Corts by a three-fifths majority. If the required majority is not obtained, new proposals will be made by the same procedure within a maximum period of one month. |
The amendment to Article 26, as regards paragraph 1, is the embodiment of a human resources policy, consisting of the establishment of the remuneration rule that prevents the remuneration of the director, in the case of being a career civil servant, from being reduced in relation to his original post. These provisions, well known in the legal system, seek to encourage the recruitment of candidates for the post. With regard to the decision that remuneration should be fixed by agreement of the Bureau of Les Corts, although this provision is possible and is so made with respect to the statutory institutions, and this is because it is precisely Les Corts that selects the director, it must nevertheless be pointed out that it seems that such a provision could affect the independence of that body.
With regard to paragraph 5, the rule, as is apparent from parliamentary debates, seeks to favour appointment in the face of parliamentary blockages, such as the one suffered in the General Council of the Judiciary.
Finally, with regard to paragraph 7, it positivizes a series of competences that, although they are obviously specific to the person in charge of the Management of the Agency, as the administrative body on which the powers of the Agency revolve, it is nevertheless appropriate to enunciate them, in order to avoid doubts and interpretative obscurities.
New wording of Law 3/2024 | Previous wording of Law 11/2016 |
1. The agency’s posts shall be held by career civil servants of the public administrations. These personnel are obliged to keep the data, information and documents that they become aware of in the performance of their duties. 2. The civil servants in the service of the agency shall be provided, in accordance with the principles of equality, publicity, merit and capacity appropriate to the function entrusted, among the civil servants of the different public administrations, and are subject to the provisions of the specific regulations of the agency and those regulating the staff of Les Corts, including equal pay. Career civil servants who are permanently assigned to the service of the agency will be declared in the administrative situation of special services. The degree of professional development recognised by the agency for civil servants from a public administration that includes the professional career supplement in its remuneration system must be recognised and paid by the administration of origin in the event of their re-entry into said administration. 3. The list of jobs will be drawn up and approved by the agency. 4. The same grounds for incompatibility established for civil servants shall apply to staff in the service of the agency. 5. The staff in the service of the agency shall cease for the reasons determined by the regulations that are respectively applicable to them. 6. In order for the staff assigned to the agency to have the necessary technical training and continuous training, teaching agreements, agreements or protocols may be signed with the Valencian Institute of Public Administration (IVAP), Valencian public universities or any other higher education entity and offices of a similar nature of a regional nature, state, community or international. | 1. The agency’s posts shall be held by career civil servants of the public administrations. These personnel are obliged to keep the data, information and documents that they become aware of in the performance of their duties. 2. The staff in the service of the Agency shall be provided, in accordance with the principles of equality, publicity, merit and capacity appropriate to the function entrusted to them, among the civil servants of the different public administrations; and is subject to the regulations governing the staff of Les Corts, without prejudice to what may be specifically established in the internal regulations and operation of the Agency. The jobs will be classified and filled in accordance with the rules of the Valencian Civil Service Law. 3. The list of jobs will be drawn up and approved by the agency. 4. The same grounds for incompatibility established for civil servants shall apply to staff in the service of the agency. 5. The staff in the service of the agency shall cease for the reasons determined by the regulations that are respectively applicable to them. 6. In order for the staff assigned to the agency to have the necessary technical training and continuous training, teaching agreements, agreements or protocols may be signed with the Valencian Institute of Public Administration (IVAP), Valencian public universities or any other higher education entity and offices of a similar nature of a regional nature, state, community or international. |
The modification comes to continue perfecting the legislative technique, and this by equating the staff of the Agency to Les Corts Valencianas, an issue that already emerged from the legislative text of 2016, but which is now definitively positive.
In addition, the issue relating to special services is also settled, declaring the staff who go on to provide their services in the Agency in such a situation, as had been pointed out by numerous Administrations and Courts and Tribunals, although not unanimously, which gave rise to different situations of the Agency’s officials, incompatible with the principle of equality, that the legislator has come to solve.
Finally, and as is typical of this type of complex regulations, a series of transitional provisions are introduced to order the first stages of the application of the legislative amendment.
The first of these is in relation to the modification of section 1 of Article 26, relating to the amount of the remuneration of the director of the agency, which must be applied to the next director of the agency, and must therefore be established by the Bureau of Les Corts prior to his or her appointment and taking office.
And the second, in relation to the modification provided for in Article 29.2, second paragraph, relating to the declaration of the agency’s staff in an administrative situation of special services, will apply in any case retroactively to the entry into force of this law with respect to the civil servants assigned to it on a definitive basis who have not been declared in this situation by their administration of origin. With regard to the modification provided for in article 29.2, relating to the equal remuneration of the agency’s staff, it will require for its application, in advance, the determination of the appropriate equivalences and the corresponding collective bargaining, as well as the existence of an adequate and sufficient budgetary allocation. The new remuneration shall be applied from the financial year following their determination, collective bargaining and budgetary allocation.
As for the entry into force, it has already taken place on June 29, 2024, after the publication of the regulation in the DOGV on June 28, 2024.
Juan Vega Felgueroso
Lawyer of the Valencian Anti-Fraud Agency
#AVAFTraining
Valencia, June 27, 2024.
“Integrity in public management: conflict of interest management and impact on public sector contracting for Next Generation EU Funds” was the training session organized by the program directorates for the management of European MRR funds of the Department of Justice and Interior, the Department of Education, Universities and Employment, the First Vice Presidency and Department of Culture and Sports and the Department of Innovation, Industry, Commerce and Tourism and the Valencian Anti-Fraud Agency.
On June 20 and 27, 2024, the Ciutat Administrativa 9 d’Octubre of Valencia hosted work sessions aimed at public employees who are part of anti-fraud committees, as well as managers of NextGenerationEU Funds in various departments of the Generalitat Valenciana, as well as LABORA and Turisme GVA.
For the third time, the Generalitat Valenciana and the Valencian Anti-Fraud Agency collaborate with the purpose of increasing training against the warning signs that may appear in the management of Next Generation funds.
The welcome to the first day was given by Raquel Gálvez, director of European funds programs at the Department of Justice and Interior; Rocio Pont, director of European funds programs of the Department of Innovation, Industry, Commerce and Tourism and Pablo Coret, director of European funds programs of the Department of Innovation, Industry, Commerce and Tourism.
Anselm Bodoque, acting director and head of the Training Service of the Valencian Anti-Fraud Agency, gave the introductory presentation of the day with the presentation of the institutional system for fighting corruption and the Valencian Anti-Fraud Agency.
The promotion of the culture of public integrity in institutions and the analysis of the risks of fraud and corruption in public administration in decision-making was the content of the presentation given by Pilar Moreno, technician of the AVAF Training Service .
Marita Oliver, technician from the Agency’s Training Service, explained in detail the information systems obligations of Law 2/2023 and their difference with the alert channels related to the Next Generation Funds.
In the second training session, held on June 27, 2024, the subject of study focused on contracting in the public sector and conflicts of interest.
The introduction to the day was given by Ivano Magazzu, director of European fund programs at the Department of Education, Universities and Employment; Raquel Gálvez, director of European funds programs of the Department of Justice and Interior and Pablo Coret, director of European funds programs of the Department of Innovation, Industry, Commerce and Tourism.
In her presentation, Pilar Moreno addressed the irregularities detected by the AVAF reporting channel in the execution phase of the contract, the main risks warned in the matter, as well as the existing preventive tools to minimize their impact.
Conflicts of interest, definition, typology and proper management of the same among public employees were the subject of the workshop led by Anselm Bodoque and Pilar Moreno with which the day closed.
The risk that exists due to inadequate management of conflicts of interest in public sector contracting is urgently addressed for the development of the culture of public integrity and of widespread concern among public employees.
The AVAF Training Service thanks the European Fund Program directorates of the organizing departments for their invitation and management in the organization of the workshops. Likewise, he thanks all the participants for the great interest shown and the contributions made, since thanks to them the training activity became an open dialogue for the exchange of experiences and reflections between those attending the conference and the AVAF.
If you wish to have specialized training in public integrity and corruption prevention in your public administration, do not hesitate to write to formacion@antifraucv.es
