Ţuca Zbârcea & Asociaţii’s Structural Funds Department has contributed to the release of more than 1,000 pages containing the inspection authorities’ Notices of Findings on the application of financial corrections in the structural fund projects implemented by local administrative authorities over the last four years.
Along with the Institute for Public Policies (IPP) and the Romanian Association of Municipalities, Ţuca Zbârcea & Asociaţii has issued, for the first time in Romania, a systematic case law directory on local and county authorities’ management/control of EU funds.
The directory, entitled Notices on the Finding of Irregularities and the Setting of Financial Corrections in Structural Fund Projects, is a representative national sample of notices of findings generating more than EUR 300 million of financial corrections, applied over the last four years to local authorities’ structural fund projects (county councils and town halls of county capitals).
According to the authors, efforts to increase the national rate of structural funds absorption cannot be successful while, despite funds existing under the Technical Assistance Programme, the central structures fail to advise and to constructively support the local beneficiaries in learning competitive public procurement proceedings and avoiding the irregularities that have already become a national bad habit.
Moreover, the authors warn that beneficiaries are going to court to challenge decisions to apply financial corrections. "This case law directory statistically confirms that as many as 80% of the notices of findings are challenged and 41% of the legal actions are filed against the Managing Authority. Rulings favourable to EU funds beneficiaries have already been handed down in many of these cases. The directory helps the authorities and other players in the structural funds sector draw the necessary conclusions in order to avoid the loss of funds. It fills a void of information, guidance and consulting, as the relevant experience and case law have not been sufficiently consolidated and so far the focus has been on inspection and punishment,” said Dan Borbely, Partner at Ţuca Zbârcea & Asociaţii and coordinator of the firm’s Structural Funds Department.
Notices on the Finding of Irregularities and the Setting of Financial Corrections in Structural Fund Projects is a true inventory of non-compliance, inconsistencies and issues occurring in the implementation and monitoring of EU-funded projects. “Public procurement is the most sensitive sector as regards the erroneous use of EU funds and the main cause of expenditure ineligibility. The reviewed case law revealed that the most frequent errors were the restrictive/illegal requirements of the managing authorities, infringement of the undertakings’ equal treatment principle, failure to comply with the technical, financial or administrative eligibility conditions, illegal increases in the value of contracts, failure to comply with the transparency principle, and so on,” said Cristina Ana, Senior Associate at Ţuca Zbârcea & Asociaţii and one of the coordinators of the structural fund projects managed by the law firm.
The Ţuca Zbârcea & Asociaţii legal team outlined the main issues of the current system for structural fund management and put forward several solutions to harmonize control practices and reduce the amount of financial corrections. Such solutions include: (i) the public procurement control powers of the managing authorities, the UCVAP, ANRMAP and the Court of Accounts/the Audit Authority must be clarified; (ii) SEAP must be assessed and the IT functionalities of the basic and high-quality system improved; (iii) the technical assessment grids used by the public procurement departments of the contracting authorities and, in general, the tender documentation, particularly in infrastructure projects, must be standardized; (iv) the ANRMAP must continue to draw up guidelines for the contracting authorities, to help them develop much clearer assessment criteria; (v) the ANRMAP/UCVAP must prevent conflicts of interests by issuing specific guidelines for the settlement of such cases; (vi) specialized court divisions of the administrative claims courts must be established in order to try cases involving EU structural fund projects.
The financial corrections applied to local public authorities (county councils and county capital town halls) in structural fund projects exceed EUR 300 million, accounting for almost 20% of the structural funds that Romania had barely managed to absorb by December 2012. The average value of a financial correction was approximately 13%, i.e. EUR 400,000, of the budget of a public procurement contract, which means 1% of the budget of a county capital town hall.
Ţuca Zbârcea & Asociaţii and the Institute for Public Policies call for the finding of immediate solutions for a uniform and non-abusive application of financial corrections to local authorities’ community investment budgets.
Ţuca Zbârcea & Asociaţii’s Structural Funds Department draws on the experience of our lawyers to provide technical assistance in public procurement, environmental projects, infrastructure, state aid/competition, staff restructuring/labour law, as well as assistance and representation of managing authorities or participants in various public procurement proceedings.
The Structural Funds Department chiefly targets the technical assistance projects implemented to the benefit of managing authorities in operational programmes and assistance in the preparation, fundraising and implementation of the projects funded under the aforementioned programmes, as well as the parties’ representation in disputes involving EU-funded projects.
The department closely cooperates with the firm’s Litigation and Arbitration Department in proceedings involving EU-funded projects. Our team of over 40 barristers represents clients at all levels of the Romanian legal system, from tribunals of first instance to the High Court of Cassation and Justice, as well as in proceedings before the National Council for the Settlement of Challenges, the Managing Authorities and in complex arbitral proceedings under the rules of the International Commercial Arbitration Court (the Romanian Chamber of Commerce and Industry), ICC, UNCITRAL and ICSID. According to Legal 500, Ţuca Zbârcea & Asociaţii has the best dispute settlement rate among Romanian law firms.