Full vindication of the positions of the Audit Office
1. In our announcement on 23.1.2023 we had stated that on 2.1.2023 we informed the Attorney General about the potential commission of criminal or civil offences in connection with the conclusion by the Ministry of Finance of two contracts with financial consultants, one in November 2021 worth €95.200 and one in July 2022 worth €191,238, without the existence of available appropriations and by direct award, without an open tender, in breach of the relevant public procurement legislation. These decisions were taken by the Minister of Finance and the Director-General of his Ministry. The consultancy services provided in the context of the two contracts were related to the heterogeneous for the State and illegal agreement launched by the Government to extend the airport agreement by 5.5 years.
As it turns out, the Ministry secured in October of 2022, that is, after we first raised the issue of the illegal direct award of the two contracts, an opinion from the Attorney General of the Republic that the direct award was lawful. Also, in our letter dated 2.1.2023, we recorded allegations by the Ministry of Finance that at the material time of the conclusion of the two contracts they also had the consent of the Attorney General for this direct award. Indeed, this is included in a joint statement by the Ministries of Finance and Transport dated 27.9.2022.
This means that the Attorney General was asked to investigate possible criminal offences by the directors of the Ministry of Finance, but they acted on the basis of his own guidance and/or his own ex post facto cover. Since the Attorney General was apparently unable to examine the matter objectively and since the second award of €191,238 concerns a public contract - which, according to the relevant legislation, should, because of its amount, have been advertised at European level -[/B], we stated that we would forward a complaint to the European Commission about the illegal direct award.
2. Indeed, on 1.2.2023 we sent a letter to the European Commission from which we received a reply on 30.3.2023, which confirmed that:
- the approval given by the former Minister of Finance, on the recommendation of the Director General of his Ministry, for the direct award of the two contracts was illegal, and
- the subsequent and/or prior opinion of the Attorney General that the direct award of the above two contracts was legal, was incorrect.
This correspondence has been forwarded to the Minister of Finance today.
3. In our view, the above facts intensify the need for the immediate promotion of appropriate constitutional and other reforms, so that there is a separation of the powers of the legal adviser of the State from those of the public prosecutor. As the European Commission indicates in its letter, we will be able to inform its delegation on this matter, with whom we will be meeting tomorrow on the subject of the rule of law.
4. In the present case, our Office, exercising its constitutional powers to control payments and commitments made, expressed the view that the two contracts signed by the Treasury were illegal. The Attorney General described them as legal. We recall that in many cases the Attorney General has demanded that we subordinate our independent audit opinion to his opinions as if we were a branch of the Legal Service, a position we have categorically rejected, explaining that, according to international auditing standards, the auditor is always responsible for his own audit opinion, even if it was based on the opinion of experts such as legal advisers. Here is an example where, y adopting the opinion of the Attorney General, we would have expressed an audit opinion that would have been erroneous, which would have damaged the credibility of our own institution.
(OP)
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