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|
|Press note in PDF|
|Editable press note in DOC format|
|Editable press note in ODT format|
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