Oct72019

Approval of the European Union Directive on the protection of persons who report corruption and others

On October 7, 2019, the European Council unanimously approved the European Union Directive on the protection of persons who report acts or conduct of corruption, infractions and irregularities. Shortly, the legislative act will be formally signed and published in the Official Journal of the European Union, and from this moment on, Spain will have two years for its transposition (term that will end in 2021).

Finally, throughout the Spanish territory, the law will protect the complainants and provide them with legal advice, reversing the burden of proof against dismissals, demotion and other forms of retaliation, which will guarantee the effectiveness of their rights ensuring their full indemnity . It will also protect whistleblowers in legal proceedings, from fraud, corruption, tax evasion or damage to the health of people and the environment. In addition, it will include the imposition of fines on retaliators and the requirement that member states inform citizens about the complaint procedures and the type of protection they can avail of, and must designate a public authority responsible in this area.

Likewise, the new European regulations establish a system of internal and external reporting channels, both in the public and private sectors. The complainant may contact authorities outside the organization if the appropriate measures are not taken within the organization, or there is an imminent or manifest danger to the public interest, or when he presumes that the complaint to his superiors will have no effect because they are the authors of the the facts reported or are in collusion with them.

Many countries of the European Union already have within their legal system a specific law or a system and tools to protect whistleblowers. Thus, among others, Belgium, Holland, United Kingdom, Ireland, Sweden, Greece, Hungary, Lithuania, Luxembourg, Malta, Slovakia or Romania.

Italy and France created their own national authorities against corruption and whistleblower protection, respectively, through laws of 2012 and 2016. These are institutions that act with full organic and functional independence from public administrations in the exercise of their functions, to which is attributed its own legal personality and full capacity to act for the fulfillment of its purposes, at the head of which is a president who is elected by the legislative body.

THE VALENCIAN COMMUNITY ADVANCES THE EUROPEAN DIRECTIVE

The Valencian Community anticipated the European Directive and the Spanish State itself, with the approval and entry into force of Law 11/2016, of November 28, of the Generalitat, of the Agency for the Prevention and Fight against Fraud and the Corruption, issued in compliance with the 2003 United Nations Convention; international convention that, despite having been ratified by the Spanish State and being part of our legal system since its publication in the Official State Gazette in 2006, has been inapplicable.

The Valencian Anti-Fraud Agency is the institution responsible in the Valencian Community for the protection and assistance to people who report corruption, endowed with sanctioning power to impose fines, ranging between 200 and 400,000 euros, to those who disturb their working life or whistleblowers, or hinder the Agency’s tasks.

Since the beginning of its activity in the second half of 2017, the Agency has protected nineteen whistleblowers; most of them public officials, whose complaints have led to the opening of criminal judicial proceedings that are in process.

In addition, the Agency performs functions of investigation of complaints, as well as prevention, training and awareness-raising in integrity and public ethics, in matters of public procurement and concessions, access and provision of public employment, subsidies, urban planning or public assets, derived from action of the public administrations of our territory (autonomous and local), and its public sector, contractors, concessionaires, recipients of subsidies and of any entity, even private, that receives public funds or is subject to the decision-making power of public administrations.

The Valencian Community, endowed with legislation that is even more advanced than the Directive itself, is the only one in the entire Spanish territory that grants protection status to individuals or legal entities, who denounce acts or conduct, presumably fraudulent or corrupt, that may give rise to the requirement of legal responsibilities, whether the complaint is filed with the Agency itself or any other administrative body, or with the Public Prosecutor’s Office or the judicial authority. For these purposes, the complainants are assimilated, all those who alert or reveal information of this type, as well as the witnesses and experts, and the relatives and people around them if they suffer risk of retaliation or threat as a result of the information. provided.

THE SECURE AND CONFIDENTIAL COMPLAINT BOX

Since May 2018, the Agency has made a secure and confidential complaint mailbox available to the public, which admits anonymous complaints, so that those who have knowledge of this type of facts or conduct, communicate it in order to proceed to your analysis and research. This mailbox also operates as a virtual portal for the public official. The mailbox can be accessed through the Agency’s own web portal www.antifraucv.es.

However, complaints can also be made by email, by regular mail or in person at the Agency’s offices at Calle Navellos, no. 14, pta. 3, of València, CP 46003.

Finally, it should be noted that the implementation of the Directive will result in important reforms in our legal system: it will not only require the approval of a specific law to combat corruption and its harmonization with regional legislation, in order to coordinate and cooperate with the structures that are in operation, but also the revision of the Organic Law for the protection of witnesses and experts in criminal cases, the Penal Code, the General Penitentiary Organic Law, the Criminal Procedure Law, and numerous regulatory norms of the sector private and certain areas of the public sector (regulations on competition, consumption, public health, food safety, transport security, money laundering, terrorism, personal data, etc.).

RULES AND RELATED DOCUMENTS

For further information you can reach gabinete@antifraucv.es  or by telephone 962 787 450

Official Press Release 7.10.19
Voting result

València, October 72019

Links of interest

Board voting results
Better protection for whistleblowers: new rules across the EU from 2021

Press release

Jul92019
Signatura conveni entre Táctical i l'Agència

Signing of the collaboration agreement between the Valencian Antifraud Agency and the Whistleblower Tactical Association

Today, July 9, the Valencian Anti-Fraud Agency, represented by its Director, Joan A. Llinares, and the Tactical Whistleblower Association, represented by its President, the systems engineer Mr. Hervé Falciani, have signed a collaboration agreement to establish a permanent channel of communication and joint work in order to improve efficiency in meeting objectives of common interest.

It should be noted that Tactical Whistleblower is a non-profit association established in Spain that was born with the vocation of promoting ethics and institutional security, both public and private through research and the application of technologies such as “blockchain” and others already developed or on process of development.

The Valencian Antifraud Agency considers among its objectives the realization of preventive plans that reduce the risks that, in the field of administrations and the public sector, may involve fraudulent or corrupt bad practices.

Thus, studies are being carried out on the potential of technological infrastructures that allow increasing the effective control of aspects such as contracting, subsidies or concessions, thanks to the traceability and transparency in the public bidding processes and the derived expense, especially in everything that refers to the verified and real execution of works, services and supplies as well as the effective fulfillment of the obligations related to public subsidies.

This Framework Agreement, without economic content, from which legal instruments can be derived for carrying out activities, establishes in its clauses the modalities of collaboration and the way in which they will be established.

A joint monitoring commission is also created. The Agreement is valid for four years, with the possibility of an extension of four additional years.

Among the collaboration modalities of the Agreement the following should be highlighted:

•Establish collaboration for the introduction, development and implementation of technological applications that facilitate the fight against fraud and corruption in the areas of contracting, subsidies and public concessions.

• Cooperate in training programs for technical, administrative and service personnel.

• Collaborate jointly in the areas of technical cooperation and technology transfer, as well as in training matters for analysts and specialized personnel in data analysis and in other technological fields.

• Work together so that the implementation in all its public administrations of this traceability technological tool is contemplated in the legal framework of the Valencian Community, once it is finished.

It is important to highlight, from the Valencian Anti-Fraud Agency, that the celebration of this Agreement with the Tactical Whistleblower Association has a special relevance, considering that Tactical Whistleblower is chaired by Mr. Hervé Falciani, who is known to be a complainant of fraud and corruption. and that he is actively collaborating with the justice of several countries, including Spain, contributing his knowledge about millionaire fraud.

The so-called “Falciani List” has served, since 2010, to uncover fraud mechanisms, which has facilitated the identification of alleged tax evaders and corrupt plots, having recently been validated by the Constitutional Court as a means of legal evidence.

Likewise, the National High Court considered it proven that the information provided by Mr. Falciani has served to reveal criminal situations and that without his collaboration an effective investigation would not have been possible. Mr. Falciani has been an essential element in explaining how the dense network of money used in corruption works.

For the Valencian Antifraud Agency it is a privilege to have collaborators such as Mr. Falciani and the association that he presides to develop their functions of prevention, investigation, training and fight against fraud and corruption in the Valencian Community.

 Agreement
 DOGV num. 8604 / 1.08.2019
 BOCV num. 18 / 31.07.2019
Jul32019

Approval and publication of the Regulation of operation and internal regime of the Agency

In the DOGV of July 2, 2019, by Resolution of the Director of the Agency has published its Operating Regulations and internal regime of the Agency for the Prevention and Fight against Fraud and Corruption of the Valencian Community.

The preparation of this Regulation is the result of two years of work by the legal services and the Agency’s staff as a whole, and for its preparation it was submitted to a public hearing, in accordance with the provisions of Article 133 of Law 39 / 2015, of October 1, of the Common Administrative Procedure of Public Administrations, which regulates citizen participation in the procedure for the elaboration of norms of legal or regulatory rank.

In the preamble of the Regulation, the consultations made to affected persons, institutions and organizations are detailed.

The decisive observations and proposals have been taken into account in its preparation.

It is worth highlighting the participation, through allegations and contributions from the Prosecutor’s Office, the Professional Association of the Magistracy, the Valencian Inter-Union Association, the Valencian Federation of Municipalities and Provinces, the Ministry of Transparency, Social Responsibility, Participation and Cooperation, as well as dedicated civic organizations to the fight against fraud and corruption, as well as to various citizens in the elaboration of the Regulation.

All the contributions of interest have led to an important legal debate on the content and nature of these Regulations.

Law 11/2016, of November 28, creating the Agency, extraordinarily innovative in the matter, required that it be completed by a Regulation that develops and establishes the principles of the aforementioned founding law.

The Regulation should highlight the development of the following aspects that are considered most outstanding:

– The legal nature, legal regime and purpose of the Agency are established, as well as its scope of action and its guiding principles.

– The approval of a code of ethics and conduct and an ethics committee is foreseen for all its personnel.

– The reserved nature of their actions is established to avoid damages to the investigated persons or the investigated entity and the complainants, informants and whistleblowers.

– Its organizational structure is established by creating the Management Committee, a collegiate body that assists in the management of the Agency and, in the event of a conflict of interest, replaces it.

– A Participation Council is created as an advisory and consultative body of the Agency and a channel for participation by civil society and experts within the Agency’s scope of action to improve the performance of its functions and purposes. Its purpose is to promote the Agency’s relationship with civil society and the public as a whole, to whom the management must be accountable.

– They carry out their training, prevention and documentation actions. These functions are one of the pillars of the Agency’s functions. The Entity should be conceived both as an element of investigation and the fight against fraud and corruption, as a tool for prevention and training.

– The analysis and investigation procedure is regulated, with all the necessary guarantees.

– The mechanisms for the protection of the complainant are established, the person complaining is defined and the duty of reserve and protection of these persons is established. Likewise, their rights are regulated and the procedure for granting this statute is established.

– The sanctioning procedure and its principles are established, as well as the procedure for its resolution.

– The regime of personnel at the service of the Agency is also regulated, who, in any case, must be a career civil servant. It should be noted that the Agency staff, in the exercise of their inspection functions, have the status of agents of the authority and enjoy special protection in the exercise of their functions.

– The Regulation develops the economic and budgetary regime established in its creation law and its patrimonial and contracting regime.

– The Regulation establishes a system of accountability and transparency of the public activity of the Agency. One of its fundamental tools is the Transparency Portal on its website.

– The right to public information is also regulated for any citizen, both individually or on behalf of any legally constituted organization.

– Regulates the complaints box, which is a secure telematic channel for presentation, as well as information or communications, even when the information received is anonymous. It also operates as a virtual office of the public employee to allow him to confidentially communicate administrative irregularities of which he may have knowledge in the exercise of his functions.

-All data processed by the Agency are subject to current data protection regulations.

In conclusion, it can be stated that with the approval of this Regulation, the legal architecture necessary for the Valencian Anti-Fraud Agency to have the regulatory tools that allow this Entity to carry out its functions is completed.