«THE FRENCH SYSTEM OF REGIONAL PUBLIC SECTOR AUDIT _ General legal framework A recent creation Until 1982, under a legal system whose most recent ...»
15/21 The report is sent to the public prosecutor for financial matters at the chamber who lodges his “conclusions” that is to say, gives an opinion on the recommendations made by his colleague who prepared the report.
The report is examined by a collegial decision-making body: a plenary or limited assembly of the members of the chamber or section. The reporting officer presents the case which he has investigated; he takes part in the consultations, except in judicial matters. The reviewer (réviseur) is a magistrate – a member of the formation of the court – who may only be designated after the completion of the investigation and therefore does not take part in the latter. The reviewer is charged with advising his colleagues and preparing the draft of the judicial decision over which they are deliberating. The chamber gives a ruling, if necessary, by vote, with the president having no casting vote. The number of counsellor-members, including the president, must be uneven.
As a general rule, the session during which the audit report is examined is not public:
neither the accountant nor the other interested parties are allowed to attend the session.
However, sessions devoted to setting the charges, the fines imposed on the accountants concerned, and those relating to judgements on de facto management, are public and satisfy the requirements of a fair trial. That is why mechanisms exist to ensure all the parties are heard, as is essential to all good justice.
In accordance with the law, all procedures conducted by or before the audit chamber must hear the arguments of all the parties (contradictory procedure). This principle, which can take several forms, comes into play at various stages of the procedure. In matters of management audit, a “prior” interview between the report’s author and the authorising official concerned takes place before any written comments from the chamber are sent: this conversation allows the presentation to the audited authority of the recommended actions envisaged by the investigating magistrate.
The “provisional observations10”, forwarded to the authorising official after deliberation by the chamber acquaint him with the comments, questions and remarks which the chamber considers should be brought to his attention. These are both confidential and provisional: the recipient is required to respond to them before they are formally adopted by the chamber.
This response may be accompanied by a request for a hearing. Where a third party is involved, that person or body receives an extract of the observations that concern him/her/it, and may respond and also request a hearing.
The “definitive report” is produced at the end of a further session of deliberations of the collegiate decision-making body, having regard to the responses given. It may take up the initial observations or revoke them based on the explanations provided and on any other matter which may arise.
Where several authorising officials have succeeded one another during the period under examination, each of them who was in the post at the time of the facts in question is required to provide a written response to the provisional observations.
The procedural form which allows all the parties to be heard also applies to the accountants. No charge against the accountant may be fixed unless there has first been a public hearing.
MANAGEMENT AUDIT (according to the Law of 21 December 2001)
* All results (definitive report and responses) may then be published Addressees of reports The reports of investigation produced by the magistrates remain confidential, except in the case of judicial matters (see below). They are not subject to any communication outside the regional audit chambers.
The main recipients of the observations produced after the audit reports have been
1°) The executive (the mayor, the president of the department council), then the assembly of the audited territorial authority or the director of the audited body (chairman of the association) and in the latter case - and for the definitive report - the territorial authority to which it is attached.
2°) The Court of Audit
The chambers may, via the public prosecutor for financial matters, send “administrative” comments to the Public Prosecutor’s office at the Court of Audit with a view to possible intervention with ministers, thus raising awareness to the problems posed by the application of certain legal texts. They may suggest, if appropriate, reform via injunction from the First President of the Court of Audit, or letters from its Public Prosecutor (known as Communication from the Public Prosecutor).
The public annual and individual reports from the Court of Audit, which draw their material from the observations made by the regional audit chambers, are submitted to the President of the Republic and to Parliament. They are published in the Official Journal and widely reproduced by the media.
3°) The relevant Prefect, for definitive reports and advice relating to audits of budgetary measures.
4°) The general administrator of public finances in the department (the accountant’s superior) for judgements on accounts presented by his subordinates.
5°) The chambers may send “administrative” comments to the local State representatives, usually via the public prosecutor for financial matters (tax departments, etc.) 6°) The criminal justice system The chamber may have cause to refer a case to the prosecutors of a criminal judicial authority, if the audit revealed circumstances liable to be described as offences (interference, corruption, unjustified advantages relating to public procurement, etc.) or crimes (falsification of public documents committed by a public authority). It is the public prosecutor for financial matters, in the role of prosecutor within the chamber, who refers the case to the criminal judicial authority, either after deliberation or, in urgent cases, immediately in accordance with the Code of Criminal Procedure.
grounds also allow the chamber to initiate proceedings against elected officials before the Budget and Finance Disciplinary Court: failure to carry out judicial decisions, or incorrect and abusive use of the right of requisitioning of public accountants. This measure is significant since it represents the first exception to the long-held absolute principle that elected officials’ responsibility is solely political, except for civil or criminal effect, by virtue of the mandates they exercise. However, cases in this area submitted to the Budget and Finance Disciplinary Court are extremely rare.
8°) The assembly of the audited authorities
The definitive reports must be brought to the attention of the deliberating assembly of the audited body at the time of its first meeting after the report and responses have been sent (see box). Through this publication, citizens may learn about the observations made by regional audit chambers on the management of the authority or body concerned.
However, any publication of the definitive observation is prohibited for a period of three months in the event of local elections (Law of 21 December 2001).
Communicability and publication of reports
At the end of the day, the public are informed. The decision to disseminate the definitive reports from the regional audit chambers lies with the main recipients of the reports, that is, the territorial authorities and the local public bodies. But there is free access to the contents of the definitive decisions following the audit, in other words, the judgements on the accounts and the definitive reports on the management carried out by the authorising officials: these are available on request, on CD-ROM, and, in the case of the most recent reports, on the internet server of the financial judicial authorities (www.comptes.fr).
Resources Financial resources The financial resources needed for the operation of the chambers are included in the State budget. Since 2006, they have been listed in a self-contained budget programme managed by the First President of the Court of Audit.12 The financial resources are administered either centrally by the Court of Audit or locally by the presidents of the chamber acting as secondary authorising officers.
Human resources The chambers are made up of magistrates (president, public prosecutors for financial matters, counsellors), external reporting officers in some cases, audit assistants and administrative staff.
The president or chairman of the chamber is appointed by decree from the President of the Republic on the recommendation of the First President of the Court of Audit, following advice from the High Council of the Regional Audit Chambers and the consultative committee of the Court of Audit. He is a magistrate of the Court of Audit.
He is tasked with the general management of the chamber. He sets out the audit programme after taking advice from the Public Prosecutor’s office, and divides up the work between the magistrates. He presides over sessions and takes part in voting, but does not have a casting vote. If he is absent or prevented from working, he is replaced by the most senior of the magistrates.
The chairman of the section organises the work of the section over which he presides.
He is involved in drawing up the annual programme and makes suggestions for the allocation of work between the magistrates and other reporting officials in his section.
He sets the agenda and presides over section meetings, but does not have a casting vote.
The chairman of the section takes the measures necessary for the section’s operation. He reports to the president of the chamber on the execution and follow-up of work allocated to the magistrates and reporting officers in the section. He defines the duties of the audit assistants attached to his section. He may, in the place of the president of the regional audit chamber and after being authorised to do so, sign documents, judgements, opinions, decisions and observations. In case of prevention, the chairman of the section is replaced by the oldest magistrate on the highest grade working at that section.
The first counsellors and counsellors in the regional audit chamber are a body of irremovable magistrates whose status is determined by a law dated 10 July 1982. This body is recruited from E.N.A. graduates (National School of Administration) or externally. In addition, exceptional competitive examinations have been held since
2012. Nominations are by decree from the President of the Republic. Nominations within the various grades, and transfers (assignment to a specific chamber) are made by simple decree. With the exception of the person appointed with the task of public prosecutor for financial matters, the counsellors are responsible for leading the audits entrusted to them, and for considering all reports.
The public prosecutor for financial matters is a first counsellor appointed to provide technical legal advice to the chamber and, in a few cases, to carry out prosecution functions for the chamber. He supervises the production of accounts, refers to the chamber any actions assumed to represent de facto management, and gives conclusions on the reports, with a view in particular to promoting consistency of jurisprudence. He calls for fines in the circumstances provided for in the legislation, attends sessions, and may, at the request of the judicial authority, communicate with those responsible for the audited bodies, as well as with the State representative and the heads of outside departments. Unlike the magistrates of the chamber, he can be removed.
The audit assistants take part in the audit tasks for which the magistrates are responsible. They belong to the administrative bodies of the financial judicial authorities, or are recruited on secondment from the various public administrations.
Audit assistants are appointed by the President of the Court of Audit on the recommendation of the president of the regional audit chamber. They play a vital role, since they institute the examination of supporting documents for income and 20/21 expenditure, uncover irregularities or anomalies in management, and suggest suitable follow-up actions to the magistrate, taking into account a judicial analysis and the circumstances of the case.
The administrative services in the chamber are managed by the general secretary under the authority of the president: they comprise the clerk’s office, the archives, documentation and the secretariat.
Regional chambers are organised into sections, which are judgement bodies varying in number according to their size (from 1 to 8).
The Court of Audit has the ongoing task of inspecting the regional audit chambers.
Europe and the regional audit chambers Thirteen regional audit chambers13, especially those in border areas, have links with their European counterparts which audit regional and local authorities in their respective countries.
This international openness is growing. Firstly, recent international treaties and agreements have provided for the auditing of transfrontier cooperative bodies with Belgium, Germany, Italy, and Spain, among others. Secondly, public funds are increasingly becoming funds of Community origin. To the extent that these funds, for the most part, are paid to and spent by public bodies, auditing them comes under the remit of the European Court of Auditors, leading to increasingly frequent contacts between this Community institution and the financial judicial authorities.
** * In conclusion, the effectiveness of the regional audit chambers depends on their status as “judicial authorities”, with all the associated obligations and guarantees: independent magistrates, collegial decision-making, respect for the rules of procedure and, in particular, the principle of hearing all the parties. This effectiveness is also the result of work carried out on-the-spot at the audited bodies by the magistrates and their assistants. For all these reasons, and due to the quality of their teams at all levels (magistrates, audit assistants, administrative staff), regional audit chambers have succeeded in becoming part of the local institutional landscape.
13 Regional Audit Chamber (CRC) of Alsace; CRC of Aquitaine, Poitou-Charentes; CRC of Auvergne, Rhône-Alpes; CRC of Lower Normandy, Upper Normandy; CRC of Burgundy, Franche-Comté; CRC of Champagne-Ardenne, Lorraine; CRC of Centre, Limousin; CRC of Corsica; CRC of Île-de-France;
CRC of Languedoc-Roussillon; CRC of Midi-Pyrénées, CRC of Nord-Pas-de-Calais, Picardy; CRC of Provence-Alpes-Côte d’Azur.