SPAIN

COURT OF AUDIT ORGANIC ACT

(2/1982, 12th May)

TITLE ONE
ECONOMIC-FINANCIAL AUDITING AND ACCOUNTING JURISDICTION

CHAPTER ONE
THE COURT OF AUDIT: POWERS AND FUNCTIONS

Section One:

One. The Court of Audit is the supreme institution responsible for auditing the accounts and economic management of the State and the public sector, without prejudice to its own jurisdiction as laid down in the Constitution and the present Act.

Two. It is the sole court of its order and enjoys jurisdiction throughout the national territory, without prejudice to such auditing bodies as may be provided for in the Statutes of the Autonomous Communities. It is answerable directly to the Cortes Generales.

Section two:

The Court of Audit’s functions are:

(a) Permanent and final external auditing of the economic activity of the public sector.

(b) Prosecution of accounting liability where such arises in respect of persons entrusted with the handling of public monies or assets.

Section three:

The Court of Audit possesses exclusive competence in respect of all matters concerning its own internal government and regulation and the personnel in its service.

Section four:

One. The public sector is comprised by the following:

(a) The State Administration.

(b) The Autonomous Communities.

(c) Local Corporations.

(d) Social Security management bodies.

(e) Autonomous public agencies.

(f) State Corporations and other Public Enterprises.

Two. The Court of Audit is responsible for audition subsidies, credits, endorsements or other items of public sector assistance received by natural or legal persons.

Section five:

In the performance of its functions, the Court of Audit shall be completely independent and subject only to the law.

Section six:

The Court of Audit shall draw up its own budget, which shall be incorporated in an independent section of the General State Budget and subject to approval by the Cortes Generales.

Section Seven:

One. The Court of Audit may require the co-operation of any of the bodies referred to in section four of this Act, which bodies shall be obliged to furnish all such data, statements, documents, records or reports as the Court may request in connection with the performance of its auditing or jurisdictional functions.

Where current regulations provide for compulsory certification of accounts by an official auditor in the case of particular public sector organisations, the Court shall be furnished with the relevant report.

Two. The request for such documentation shall be conveyed through the relevant Ministry, Autonomous Community or Corporation.

Three. Failure to comply with the Court’s injunctions may lead to the imposition of sanctions as provided in the Court of Audit (Functioning) Act. If the Court’s injunctions are in demand of vouchers substantiating public investment or expenditure and are not complied with in the time allowed, proceedings for recovery shall by instituted ex officio.

The Court of Audit shall notify the Cortes Generales of failure to cooperate on the part of persons under obligation to do so.

Four. Furthermore, the Court may commission suitably-qualified experts to inspect, revise and verify documentation, books, cash, securities, goods and stocks of public sector organisations, of for the purposes referred to in section four subsection two, and in general to verify the transactions recorded in their accounts and to report thereon.

Section eight:

One. Any conflicts arising in respect of the powers or attributions of the Court of Audit shall be resolved by the Constitutional Court.

Two. The service of restraining injunctions upon the Court of Audit shall not cause suspension of the proceedings concerned.

CHAPTER II
THE COURT’S AUDITING FUNCTION

Section nine:

One. The Court’s auditing function shall consist in verifying that the economic-financial activity of the public sector conforms to the principles of legality, efficiency and economy.

Two. The Court’s auditing function shall apply to the execution of public income and spending programmes.

Section ten:

The Court of Audit shall, by delegation of the Cortes Generales, proceed to examine and verify the General Statement of State Accounts within six months following the date upon which this is submitted. The Court in Full Session, having heard the representations of the Prosecutor, shall issue its final opinion, with the appropriate motion, for remittal to both Chambers of Congress and a transcript shall be remitted to the Government.

Section eleven:

The Court of Audit shall verify in particular:

(a) Agreements entered into by the State Administration and other public sector organisations, where the regulations so provide or where the Court deems appropriate.

(b) The balance of and variations in the assets of the State and other public sector organisations.

(c) Extraordinary and supplementary credits, and likewise additions, extensions, transfers and other modifications to credits as originally budgeted.

Section twelve:

One. The outcome of auditing shall be made known through ordinary or extraordinary reports or memoranda and through motions or notes to be delivered up to the Cortes Generales and published in the Official State Gazette.

Where auditing concerns the Autonomous Communities or organisations dependent thereon, the Report shall also be remitted to the Legislative Assembly of the Autonomous Community concerned and published in its Official Gazette.

Two. The Court of Audit shall record any infringements, abuses or irregular practices that it may detect, indicating any liability arising in its view and the steps required for the prosecution thereof.

Section thirteen:

One. The annual Report which the Court of Audit is required to submit to the Cortes Generales under article one hundred and thirty-six, paragraph two of the Constitution shall incorporate an analysis of the General Statements of Accounts of the State and the rest of the public sector. It shall further deal with the auditing of the financial management of the State and the public sector, and likewise other items, including the following:

(a) Observance of the Constitution, the Acts regulating public sector Income and Expenditure, and in general all regulations affecting public sector economic activity.

(b) Compliance with the provisions and implementation of the Budgets of the State, the Autonomous Communities, Local Corporations and other organisations subject to public budgeting procedures.

(c) Rational execution of public spending to proper standards of efficiency and economy.

(d) Implementation of State Corporation action, investment and financing programmes, and of other plans or provisions governing the activity of public enterprises, and likewise the use or application of subsidies awarded from public funds.

Two. The same report shall be remitted annually to the Legislative Assemblies of the Autonomous Communities for economic and budgetary control of their financial activity.

Three. The report shall include a statement of the Court’s jurisdictional proceedings during the fiscal year concerned.

Section fourteen:

One. The Court of Audit shall propose steps, where appropriate, to improve public sector economic-financial management.

Two. Where the steps proposed by the Court of Audit concerned the economic-financial management of the Autonomous Communities and public-sector organisations dependent thereon, the relevant Legislative Assembly, within its sphere of competence, shall consider the proposal and, if appropriate, make the necessary provision for their application.

CHAPTER III
JUDGEMENT OF ACCOUNTS

Section fifteen:

One. The jurisdiction specific to the Court of Audit, judgement of accounts, is exercised over those accounts which the persons collecting, auditing, administering, keeping safe, managing or utilising public goods, monies or assets are obliged to render.

Two. The accounting jurisdiction extends to deficits in public monies or assets, and to accessory obligations in surety of their management.

Section sixteen:

The Court’s jurisdiction in respect of accounts does not include judgement of:

(a) Matters in which the Constitutional Court is competent.

(b) Matters coming under the jurisdiction of the courts of administrative justice.

(c) Acts constituting an offence.

(d) Matters of civil, labour or other import remitted for consideration to the pertinent courts.

Section seventeen:

One. The accounting jurisdiction is necessary, exclusive, comprehensive and not extendible.

Two. It shall extend, solely for the performance of its function, to consideration and determination of preliminary and incidental issues, excepting those of criminal import, which are prerequisite to a finding of accounting liability and have a direct bearing thereon.

Three. The Court’s decision shall have no effects out with the scope of the accounting jurisdiction.

Section eighteen:

One. The Court’s accounting jurisdiction in respect of any acts does not except these from the action of the disciplinary authority or from criminal proceedings.

Two. In the event of acts constituting an offence, civil liability shall be determined the Court of Audit insofar as it is competent.

TITLE II
COMPOSITION AND ORGANISATION OF THE COURT OF AUDIT

CHAPTER ONE
ORGANS OF THE COURT

Section nineteen:

The organs of Court of Audit are:

(a) The President.

(b) The Full Session.

(c) The Ruling Committee.

(d) The Auditing Section.

(e) The Trial Section.

(f) The Board of Audit.

(g) The Prosecutor’s Office.

(h) The General Secretariat.

CHAPTER II
THE PRESIDENT, THE FULL SESSION AND THE RULING COMMITTEE

Section twenty:

The faculties of the President are:

(a) To represent the Court.

(b) To convene and preside over the Full Session and the Ruling Committee, and to exercise the casting vote in the event of a tie.

(c) To exercise supreme authority in respect of the personnel serving the Court and to perform the appropriate functions in respect of appointments, recruitment, government and general administration.

(d) To order expenditure proper to the Court and to arrange for works, goods, services, supplies and other items necessary for the functioning of the Court.

(e) All other faculties recognised by this Act.

(f) To settle all other matters of internal government not allocated to other Court organs.

Section twenty-one:

One. The Full Session of the Court shall consist of twelve Counsellors, one of whom shall be the President, and the Prosecutor.

Two. The quorum for valid constitution of the Full Session shall be two-thirds of the members. Resolutions shall be adopted by simple majority of those present.

Three. The faculties of the Full Session are:

(a) To perform the auditing function.

(b) To raise issues of conflict affecting the Court’s jurisdiction or attributions.

(c) To consider appeals from administrative decisions delivered by organs of the Court.

(d) All other functions laid down in the Court of Audit (Functioning) Act.

Section twenty-two:

One. The Ruling Commission shall be comprised by the President and those Counsellors who are Section Presidents.

Two. The faculties of the Ruling Commission are:

(a) To lay down the working regime for Court personnel.

(b) To take disciplinary action in the event of serious misconduct by Court personnel.

(c) To distribute business among the Court Sections.

(d) To appoint Delegate Examiners.

(e) All other functions allocated to it by the Court of Audit (Functioning) Act.

CHAPTER III
THE AUDITING SECTION

Section twenty-three:

One. The Auditing Section is responsible for verifying the accounting practice of public sector entities and for examining and checking accounts subject to auditing by the Court.

Two. The Auditing Section shall be organised in sectorial and territorial departments, each of which shall be headed by a Counsellor.

Three. The internal structure to be adopted in these departments shall be determined by the Court of Audit (Functioning) Act.

Four. The Court Prosecutor shall appoint Persecuting Attorneys to the Departments.

CHAPTER IV
THE TRIAL SECTION

Section twenty-four:

One. The Trial Section shall be organised in Benches, consisting of a President and two Counsellors and assisted by one or more secretaries.

Two. The Benches shall consider appeals from decisions delivered in first instance by the Counsellors in judgements of accounts, proceedings for recovery of deficit and actions for cancellation of bonds; at a higher instance or in appeal proceedings they shall consider such matters as may be determined by the Court of Audit (Functioning) Act.

Section twenty-five:

It is the responsibility of the Counsellors to settle the following matters in first or sole instance, in the manner determined by the Court of Audit (Functioning) Act:

(a) Judgements of accounts.

(b) Proceedings for recovery of deficit.

(c) Actions for cancellation of bonds.

Section twenty-six:

One. Preliminary procedures for recovery of deficit shall be conducted by Delegate Examiners.

Two. Delegate Examiners shall be appointed from among public functionaries serving in the province where the facts possibly constituting deficit occurred, or from among the Court’s own functionaries.

Three. In those Autonomous Communities whose Statutes make provision for regional auditing bodies, the Court may delegate to such bodies the conduct of Preliminary jurisdictional procedures for judgement of accounting liability in respect of persons responsible for the management of public monies or assets.

Four. Acceptance of appointment as Delegate Examiner is obligatory for functionaries.

CHAPTER V
THE PROSECUTOR’S OFFICE

Section twenty-seven:

The Court of Audit Prosecutor’s Office, which is a functional dependency of the State Attorney, shall be comprised by the Court Prosecutor and the Prosecuting Attorneys.

CHAPTER VI
THE GENERAL SECRETARIAT

Section twenty-eight:

The General Secretariat shall carry out functions conductive to the proper performance of their governing duties by the President, the Full Session and the Ruling Commission in all matters concerning the internal working of the Court of Audit.

TITLE III
THE MEMBERS OF THE COURT AND THE PERSONNEL IN ITS SERVICE

CHAPTER ONE
THE MEMBERS OF THE COURT

Section twenty-nine:

The President of the Court of Audit shall be appointed for a period of three years from among its members by the King at the proposal of the Full Session of the Court.

Section thirty:

One. The Counsellors shall hold office for a period of nine years. They shall be appointed by the Cortes Generales, six by the Congress of Deputies and six by the Senate, by three-fifths majority vote in either house, from among Auditors of the Court of Audit, Certified Public Accountants, Magistrates and Prosecutors, University Teachers and public functionaries belonging to corps in which higher academic qualification is a requisite of entry, Solicitors, Economists and Commercial College Teachers, all of accredited competence and having over fifteen years’ professional experience.

Two. The Counsellors of the Court of Audit are independent and irremovable.

Section thirty-one:

The Presidents of the Audit and Trial Sections shall be appointed by the Court from among its Counsellors at the proposal of the Full Session.

Section thirty-two:

The Prosecutor of the Court of Audit, who shall be a member of the Corps of Prosecutors, shall be appointed by the Government in the manner laid down in the Statute of the Attorney General’s Office.

Section thirty-three:

One. The causes of disqualification, conflict of interest and prohibition established for Judges by the Judiciary Act shall apply equally to the members of the Court of Audit.

Two. In the event that a person appointed to the Court occupies the position of Senator or Deputy of Congress, he must resign his seat before taking up the appointment.

Three. Any person having been in any of the situations described hereafter at any time in the previous two years is disqualified from appoint as Counsellor to the Court of Audit:

(a) Officials or functionaries responsible for management, inspection or auditing of public sector income and expenditure.

(b) Chairman, Managing Directors and members of the Boards of Autonomous Agencies and Corporations belonging to the public sector.

(c) Private individuals who for whatever reason administer, collect or have in their safekeeping public monies or assets.

(d) Persons in receipt of aids from public funds.

(e) Any other person accountable to the Court of Audit.

Four. Persons in any of the situations mentioned in the foregoing paragraph are also disqualified from commissioning by the Court of Audit for the performance of the functions referred to in section seven, paragraph four of this Act.

Section thirty-four:

Persons appointed to membership of the Court of Audit must, where applicable, secure special leave of absence or its equivalent from the Corps to which they belong.

Section thirty-five:

One. Civil or criminal liability of members of the Court of Audit arising in the performance of their duties shall be judged by the appropriate Division of the Supreme Court.

Two. Liability of the President and the Counsellors of the Court of Audit to disciplinary action shall be construed subject to the provisions of the Court of Audit (Functioning) Act, and liability of the Prosecutor in the manner laid down in the Statute of the Attorney General’s Office.

Section thirty-six:

The President and the Counsellors of the Court may only be removed from office upon expiry of their mandate, by resignation accepted by the Cortes Generales, or through incapacity, conflict of interests or serious neglect of the duties of office.

CHAPTER II
THE PERSONNEL IN THE COURT’S SERVICE

Section thirty-seven:

One. The personnel in the service of the Court of Audit, all suitably qualified functionaries, shall, without prejudice to any special regulations applying to them, be subject to the general Civil Service regime and rules of conflict of interest.

Two. The performance of Civil Service functions in the Court of Audit shall be incompatible with any other function, appointment or office, and likewise with professional practice and with involvement in industrial, mercantile or professional activities, including in consultative and advisory capacities, in all cases where such activities are liable to detract from the impartiality or professional independence of the functionary or are related in any way to Entities which do not belong to the public sector but use public funds liable to audit or judicial consideration by the Court of Audit.

TITLE V
FUNCTIONING OF THE COURT

CHAPTER ONE
COMMON PROVISION

Section forty-four:

The Court of Audit shall act in accordance with the procedures laid down in the Act governing its Functioning, as provided in the present Act.

CHAPTER II
AUDITING PROCEDURES

Section forty-five:

The procedures for performance of the auditing function shall be initiated ex officio at all stages. Proceedings may be initiated by the Court itself, the Cortes Generales and, within their spheres of responsibility, the Legislative Assemblies or other comparable representative bodies that may be incorporated in the Autonomous Communities.

CHAPTER III
JUDICIAL PROCEDURES

Section forty-six:

One. Those organs of the Court of Audit competent to consider a given matter shall likewise be competent in respect of all issues incidental thereto, and of the execution of the decisions delivered thereon.

Two. The competence of the organs of accounting jurisdiction shall not be extendible and may be assessed by the same organs, ex officio if need be, before a hearing is granted to the parties involved.

Section forty-seven:

One. Those persons having a direct interest in the matter at issue or possessing personal rights relating to the case may legitimately act before the accounting jurisdiction.

Two. Public authorities may bring all kinds of claims before the Court of Audit without the need of a prior declaration to the effect that the acts in dispute are injurious.

Three. Action in prosecution of accounting liability via any of the judicial procedures of the Court of Audit shall be public. Under no circumstances shall guarantee or surety be required, without prejudice to any criminal or civil liability that may arise in respect of persons bringing an action without due cause.

Section forty-eight:

One. Functionaries and personnel in the service of public-sector Entities and legitimately entitled to act before the Court of Audit may do so on their own behalf and conduct their own defence.

Two. The State and its autonomous Agencies shall be represented and defended in proceedings coming under this Act by State Attorneys. Autonomous Communities, provinces and municipalities shall be represented and defended by their own Counsel, by their appointed Attorneys or by the State Attorneys.

Section forty-nine:

Appeal may be brought to the Supreme Court for annulment or review of the decisions of the Court of Audit, delivered in such cases and in such a way as shall be determined by the Court of Audit (Functioning) Act.

FINAL PROVISIONS

One. All provisions conflicting with the precepts of this Act are hereby repealed.

Two. One. The Administrative Procedure Act shall have ancillary force in respect of regulations governing auditing procedures.

Two. For the exercise of the judicial functions of the Court of Audit, where the present Act or the Act governing the Court’s functioning does not provide, the Act regulating Jurisdiction under Administrative Law, the Civil Procedure Act and the Criminal Procedure Act shall have ancillary force, in that order or priority.

Three. Within a period of six months herefrom, the Government shall, for the appropriate purposes, lay before the Cortes Generales a bill to organise the functioning of the Court of Audit, regulating its different procedures and the Statute of its personnel.

TRANSITIONAL PROVISIONS

One. One. In the terms laid down for such matters by the Regulations of the Cortes Generales, a Mixed Commission shall be formed from both Houses for the purpose of leasing with the Court of Audit and of examining and recommending the appropriate measures and regulations to the Full Assemblies of the respective Houses.

Two. The President of the Court of Audit may, if called upon to do so, attend the meetings of the above-mentioned Commission.

Two. The current President and Ministers of the Court of Audit shall cease to hold the said offices upon the day of publication of the appointments to the posts of Counsellors to the Court of Audit, as provided in the present Act. The pension rights corresponding to the said offices shall be established by Decree.

The same rights shall attach to Presidents, Ministers and Prosecutors dismissed for political reasons at the end of the civil war.

Three. The functionaries currently in the service of the Court of Audit shall continue to carry out their duties in such manner as shall be determined by the Court of Audit (Functioning) Act; until such time as the said Act comes into force, they shall continue to perform their duties as provided in the current legislation, subject to the adaptations provided in the present Act.

Four. One. The Court of Audit may delegate to the bodies which have taken over the functions of the former National Service for Counselling and Inspection of Local Corporations the tasks of reviewing the latter’s accounts and preparing proceedings for recovery of deficit and cancellation of bonds.

Two. The Court of Audit shall be the competent Court for the settlement of such issues in the first instance, appeals being addressed to its Sections.

Five. For the purposes of this Act, those territories in which Pre-Autonomous Bodies have been constituted shall be treated in the same way as the Autonomous Communities.

Six. Within a period of two months herefrom, the Cortes Generales shall appoint Counsellors to the Court of Audit as provided in section thirty subsection one of this Act.

Wherefore I command all Spaniards, both private persons and authorities, to observe and to ensure the observance of this Act.

Given in the Zarzuela Palace, Madrid on this twelfth day of May, nineteen eighty-two.

JUAN CARLOS R.

The President of the Government

LEOPOLDO CALVO-SOTELO Y BUSTELO