La funció del Tribunal d'Auditoria portuguès en el control del Pla de recuperació i resiliència: la peça d'un trencaclosques prometedor?
| Autor | Ricardo Pedro |
| Cargo | PhD in Public Law and research fellow at the Public Law Research Centre (CIDP), Lisbon Faculty of Law |
| Páginas | 163-178 |
Revista catalana de dret públic #65
www.rcdp.cat
ROLE OF THE PORTUGUESE AUDIT COURT IN MONITORING THE RECOVERY AND
RESILIENCE PLAN: A PIECE OF A HOPEFUL PUZZLE?
Ricardo Pedro*
Abstract
This article deals with the legal regime anticipated for the execution of the Portuguese Recovery and Resilience Plan
and, in particular, the role attributed to the Portuguese Court of Auditors in the external control of the European funds
involved. In view of the need for timely execution of the plan, legislative measures have been approved to facilitate both
organic changes (creation of new entities and delegation of competences relating to European funds by existing entities)
and procedural changes (reducing the prior control of procedures for approval of public expenditure and making public
procurement procedures more exible). In this context, the Court of Auditors’ powers of control over public procurement
were strengthened to ensure good nancial management. However, the proper control of European public money requires
(much) more from the Court of Auditors, which must actively exercise its general powers of control over European funds
and public procurement and, above all, establish a timely, maximised and results-oriented control system as envisaged
in the Portuguese Recovery and Resilience Plan.
Keywords: NextGenerationEU Funds; Recovery and Resilience Mechanism; Portuguese Recovery and Resilience
Plan; Portuguese Court of Auditors; Portugal.
LA FUNCIÓ DEL TRIBUNAL D’AUDITORIA PORTUGUÈS EN EL CONTROL DEL PLA DE
RECUPERACIÓ I RESILIÈNCIA: ¿LA PEÇA D’UN TRENCACLOSQUES PROMETEDOR?
Resum
Aquest article tracta del règim jurídic previst per a l’execució del Pla de recuperació i resiliència de Portugal i, en
concret, de la funció assignada al Tribunal d’Auditoria portuguès en el control extern dels fons europeus implicats.
Davant la necessitat d’executar aquest Pla en els terminis establerts, s’han aprovat un seguit de mesures legislatives
per facilitar tant els canvis orgànics (creació de noves entitats i delegació de competències relacionades amb els fons
europeus per part de les entitats existents) com els relatius al procediment (reducció del control previ dels procediments
d’aprovació de la despesa pública i més exibilització dels procediments de contractació pública). En aquest context,
s’han reforçat les competències de control del Tribunal d’Auditoria per tal de garantir una bona gestió nancera. No
obstant això, un control adequat dels fons públics europeus exigeix una implicació (molt) més gran per part del Tribunal
d’Auditoria, el qual ha d’exercir activament les seves competències generals de control sobre els fons europeus i la
contractació pública i, sobretot, ha d’establir un sistema de control adequat, maximitzat i orientat als resultats, tal com
preveu el Pla de recuperació i resiliència de Portugal.
Paraules clau: fons NextGenerationEU; Mecanisme de Recuperació i Resiliència; Pla de recuperació i resiliència de
Portugal; Tribunal d’Auditoria portuguès; Portugal.
* Ricardo Pedro, PhD in Public Law and research fellow at the Public Law Research Centre (CIDP), Lisbon Faculty of Law. Alameda
da Universidade - Cidade Universitária, 1649–014 Lisbon (Portugal). ricardopedro@fd.ulisboa.pt. 0000-0001-6339-5140.
Article received: 20.01.2022. Blind review: 08.03.2022 and 09.03.2022. Final version accepted: 20.03.2022.
Recommended citation: Pedro, Ricardo. (2022). Role of the Portuguese Audit Court in monitoring the Recovery and Resilience
Plan: a piece of a hopeful puzzle? Revista Catalana de Dret Públic, 65, 163-178. https://doi.org/10.2436/rcdp.i65.2022.3787
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Role of the Portuguese Audit Court in monitoring the Recovery and Resilience Plan: a piece of a hopeful puzzle?
Revista Catalana de Dret Públic, issue 65, 2022 164
Contents
1 Introduction
2 The ‘big picture’ of the RRM and the PRRP
3 Exceptional budget and administration simplication measures adopted to implement the PRRP
3.1 Budget simplication
3.2 Making public procurement rules more exible
4 The Portuguese Court of Auditors
4.1 The role of the Portuguese Court of Auditors in monitoring European funds destined for the PRRP
4.2 Specic role of the Portuguese Court of Auditors in special public procurement measures
5 Further monitoring of special public procurement measures: the independent commission
6 Monitoring the PRRP: review of the puzzle and conclusions
6.1 Control of PRRP by the Court of Auditors: balancing items
6.2 Control of the PRRP by the Court of Auditors: scope and capacity
6.3 Control of the PRRP by the Court of Auditors: type of control required
6.4 The Court of Auditors’ monitoring of the PRRP: conclusion
References
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1 Introduction
In the context of the COVID-19 pandemic crisis, the robustness of the responses of Member States (MS) and,
in particular, stimulation and promotion of transformation of the economic structures of the most affected
MS,1 a package of NextGenerationEU2 funds to boost recovery was approved at European level. Of particular
signicance within this package was the European Recovery and Resilience Mechanism (RRM), which
required each MS to present its own National Recovery and Resilience Plan (NRRP) in the form of a detailed
description of the reforms and investments it considered most appropriate for that purpose. Once presented by
the MS and approved by the European Commission, the next step is the expedited3 implementation of these
plans, since the funds awarded are intended to cover the period 2021–2026.
Hence, while swift action is required, effective implementation of the reforms and investments provided for
in the Recovery and Resilience Plans will require effective action by the national authorities of the MS in
question. In order to achieve this, a number of MS, Portugal included, have introduced organic changes, either
by creating new entities dedicated specically to their NRRP, or by delegating powers to existing entities
with experience in the administration of European funds. It should be added that the above-mentioned need
for celerity led to certain administrative procedures being altered to make them more exible and reduce the
number of prior control mechanisms, whether at budgetary or public procurement level.
It is in this context of relaxation of administrative procedures that the Portuguese Court of Auditors must
focus its attention, in order to control the administrative and nancial legality. Moreover, it should be noted
that the issue of administrative and nancial control of European funds4 destined to the implementation of
the Portuguese RRP (PRRP) is a much discussed topic (Navarro Molines, 2021, p. 396 ff.), and one of the
most relevant aspects for the good application of European budget funds. In other words, in addition to all the
types of control needed to maintain legal administrative and nancial discipline in the application of European
funds by national entities (namely, the internal control carried out by national audit entities, and the external
control exercised by the European Commission), it is noteworthy that strict and effective nancial monitoring
by the Portuguese Court of Auditors is desirable in the context of European funds.
The importance of this external control immediately emerges from the fact that a signicant proportion of
specially created PRRP implementation measures involve simplifying procedures, making them more exible,
and reducing or excluding prior (common) controls on the part of other public entities. The reduction of such
controls rst occurred at the level of budget implementation procedures and of public procurement procedures,
where normative changes were made to ensure the timely implementation5 of the PRRP.
In this scenario, the Portuguese Court of Auditors can play a pivotal role, either through the development of
its general functions of nancial monitoring in matters of European funds and public procurement, through
competences specically related to special public procurement measures, or by maximising the competences
of risk warning and collaboration with the entities responsible for the implementation of the PRRP.
2 The ‘big picture’ of the RRM and the PRRP
As indicated above, in the context of the COVID-19 crisis, it became necessary to strengthen the current regime
for providing support and providing the MS with direct nancial support through an innovative instrument.6
As a result, and on the basis of Article 175 TFEU, the European Union deemed it appropriate to create the
1 Drawing attention to the fact of the crisis and in the event of inaction by the Union: “perhaps we have never been so close to
disintegration”, see Albertí i Rovira (2021, p. 1).
2 On control at the European level, see Fernández Pasarín (2020, p. 1). On the principle of solidarity, also in this context, see
Brauneck (2021, pp. 773–775).
3 In the French context of the “France Relance” plan, see Canivenc (2021, pp. 115–123).
4 On European funds, see Gallizioli (1992); Ordoñez Solís (1997); Evans (1999); Bernard (2002); Cappello (2014); Belicka (2014);
Karl and Demir (2015); Pedro (2020); Navarro Molines (2021).
5 With the same concern in the Italian context, see Villani (2021, p. 5).
6 For a notion of the different European instruments created to respond to the COVID-19 health crisis, see Olesti Rayo (2021, p. 6 ff.).
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Recovery and Resilience Mechanism (RRM)7 for the purpose of providing effective and signicant nancial
support to enhance the implementation of sustainable reforms and related public and private investments in
the MS (Olesti Rayo, 2021, p. 6 ff.; Alcidi and Gros, 2020, pp. 202–203).
Thus, an ad hoc mechanism was created to channel most of the funds under the Cohesion Policy. This is
based on six key pillars: the ecological transition; digital transformation; smart, sustainable and inclusive
growth, including economic cohesion, employment, productivity, competitiveness, research, development and
innovation, and a well-functioning internal market with strong small and medium-sized enterprises (SMEs);
social and territorial cohesion; health and economic, social and institutional resilience, particularly with a
view to increasing preparedness for and response to crisis situations; and policies for the next generation of
children and young people, including education and skills. The mechanism stipulates a set of approval criteria,
namely, consistency with the macroeconomic priorities for each country within the framework of the European
Semester. Non-fullment or unsatisfactory fullment of the commitments made by the MS may lead to the
suspension of payments and, ultimately, the termination of the agreement by the European Commission, if a
certain deadline has passed and the MS has failed to present tangible results.
The vehicles to which RRM funds are destined are the NRRP. In the case of Portugal, the plan has already
been assessed and approved by the European Commission.8 Assessment was carried out on a per-item basis,
and the Portuguese RRP received grades of A and B. Annexed to the Commission’s approval decision is the
Portuguese RRP,9 which is structured into reforms and investments, covering specic components (e.g., health,
housing, etc.) and providing a description of these reforms and investments as well as indicating milestones,
targets, indicators, timetables, etc. “Component” is the magic word here (Navarro Molines, 2021, p. 387), and
should be understood as a constituent element or part of the PRRP, with each component reecting reform
priorities and corresponding investments within a policy framework, sectoral activity or related theme designed
to address specic purposes, forming a coherent package of mutually reinforcing measures.
A specic governance model was anticipated for implementation of the PRRP.10 This model is limited to
four levels: the political level, the monitoring level, the management level, and the control and audit level.11
This governance model, according to the law that created it,12 “should ensure a high degree of coordination
between the various actors”, taking into account “fundamental principles such as simplication, transparency
and accountability, participation, centralised management and decentralised implementation, segregation of
functions and results orientation”.
7 Regulation (EU) 2021/241 of the European Parliament and of the Council, of 12 February 2021, establishing the Recovery and
Resilience Facility (OJ L 57, 18/2/2021, pp. 17–75).
8 Proposal for an EU Council-implemented decision to approve the assessment of the Portuguese Recovery and Resilience Plan
(SWD (2021) 146 nal), consulted on 17 January 2022.
9 Annex to the proposal for an EU Council-implemented decision to approve the assessment of the Portuguese Recovery and
Resilience Plan (SWD(2021) 146 nal), consulted on 17 January 2022.
10 See Decree-Law No. 29-B/2021, of 4 May, which establishes the governance model for European funds allocated to Portugal
through the Recovery and Resilience Plan. All national laws referred to can be found at: www.dre.pt
Strictly speaking, in this article we are only addressing the Portuguese RRP governance model at the level of the mainland, since the
Autonomous Regions of the Azores and Madeira have their own regime. In other words, (i) for the Autonomous Region of Madeira,
Regional Regulatory Decree No. 6/2021/M, of 15 June 2021, establishes the governance model of the regional investments included
in the Recovery and Resilience Plan, under the European Union Resilience and Recovery Mechanism for the period 2021–2026, as
well as the organic structure related to regional strategic and operational management, follow-up, monitoring and evaluation, taking
into account the reality and specicities of the Autonomous Region of Madeira; and (ii) for the Autonomous Region of the Azores,
Regional Regulatory Decree No. 23/2021/A, of 3 September, establishes the governance model for the reforms and investments
included in the Recovery and Resilience Plan for the Autonomous Region of the Azores (RRP-Açores).
11 On this level of governance of the PRRP, see Rodrigues and Proença (2022, p. 69 ff.). The importance of this level of governance
is crucial for the success of the PRRP. However, attention is also paid to the role of the Court of Auditors as the body responsible
for the external control of European funds to ensure the congruence of internal and external control system results, because the
practical unity of the legal system and the legal certainty that public managers should benet from requires it. In this way, we must
aim to ensure that a situation considered to be good public expenditure by the internal auditing system is not later deemed to be the
opposite by the Court of Auditors and involving, in the worst case, penalties or nancial liability for the public manager. Moreover,
only the Court of Auditors will have an integral vision of European and national investments and is therefore in a position to make
an integrated assessment. In this last sense, see Villani (2021, p. 6).
12 Decree-Law No. 29-B/2021, of 4 May.
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It is a governance model based on strictly administrative structures, with the prime minister and other high-
ranking members of the Portuguese government responsible for the policy coordination level. With the
objective of promoting institutional, economic and social partnership, the second level of the governance
model is responsible for monitoring implementation and results of the PRRP, and promoting the appropriate
dissemination of the plan to citizens, companies and other organisations, as well as analysing any issues
affecting its performance and proposing recommendations. In order to ensure compliance with the obligations
and requirements set out in Regulation (EU) 2021/241, an entity responsible for the technical and management
coordination of the PRRP has been provided as the third level of the governance model, which is completed
with the provision of an audit and control level to supervise the management and control system of the third
level of governance.
For a more complete understanding of the puzzle, it is important to take into account that, in addition to
executive power, judicial and legislative powers were also called upon in the task13 of implementing the PRRP.
Thus, in addition to the role played by the Public Prosecutor ’s Ofce at the Court of Auditors, and at the last
level of the governance model – audit and control – in monitoring the activity of the entities responsible for
that level of control, the Court of Auditors is generally assigned a role of external control of European funds,
and has also assumed specic powers in the eld of public procurement.14 Furthermore, within the context
of monitoring and supervising the implementation of special public procurement measures, an independent
commission has been set up, in which three of the ve members are appointed by the Assembly of the Republic
and two others by administrative entities.15
Finally, it is important to note that implementation of the PRRP is based on strong contractualisation of
reforms and investments with the beneciaries. That is to say, the reforms and investments dened in the
PRRP are subject to contractualisation between the mission structure’s direct16 or intermediary17 beneciaries,
and between the latter and the respective nal beneciaries.18 In this contractual logic, direct or intermediary
beneciaries are required to provide the information on milestones and targets necessary to monitor compliance
with the objectives and nancial planning of the reforms and investments and other obligations arising from
Regulation (EU) 2021/241. Inherent in this contractual logic is a nancial chain and compliance with the
respective duties that impact on the overall sound nancial management of the PRRP. This requires the
different actors involved in the implementation of the PRRP to pay particular attention to the legal framework
involved, as the expedited implementation requirements do not support non-compliance.
3 Exceptional budget and administration simplication measures adopted to implement the
PRRP
3.1 Budget simplication
For the purpose of expediting implementation of the PRRP, an exceptional framework has been provided to
simplify and speed up public expenditure procedures.19,20
13 “The entire institutional system is called to a test of seriousness and efciency that does not admit of recovery sessions”. In this
sense, see Villani and Vasarri (2021, p. 23).
14 See below, section 4.
15 See below, section 5.
16 “Direct beneciaries” are the entities responsible for the implementation and physical and nancial execution of a reform and/or
investment included in the PRRP, which enables them to benet from nancing.
17 “Intermediary beneciaries” are the public entities responsible overall for the physical and nancial implementation of a reform
and/or investment included in the PRRP, but whose execution is ensured by third parties selected by them.
18 “Final beneciaries” are the entities responsible for the implementation and physical and nancial execution of a reform and/or
investment, beneting from PRRP funding directly as a direct beneciary or through an intermediary beneciary.
19 Despite this simplication, the obligations set out in articles 6(2)(3)(4), 7(3), 8(3), 13(2), 14(3), 16(4)(5), 17(1)(2(3) of Decree-
Law No. 53-B/2021, of 23 June, must be taken into account.
20 Measures with these objectives have also been anticipated in other countries, for example, in Spain, in the sense that the relaxation
of budgetary control of NextGenerationEU funds is one of the fundamental pillars of the legal framework developed for this purpose,
see Escribano and Magaña (2021, p. 344).
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Within this framework, the following measures are particularly worthy of note: (i) extension of the limits of
powers to authorise expenditure;21 (ii) waiver of authorisation for the assumption of multi-annual charges;22
(iii) exemption from captivation;23 (iv) irrelevance for the purposes of compliance with the budget balance
rule;24 (v) waiver of authorisation to enter into service acquisition contracts;25 (vi) waiver of the need to
obtain a binding prior opinion for the signing or renewal of service purchase contracts in the form of a
task or contract;26 (vii) tacit deferment of prior opinions or consultations regarding electronic certication,
administration modernisation and simplication, and electronic administration;27 (viii) simplied and urgent
procedures for the temporary hiring of human resources.28
These measures represent a “certain ‘lowering of standards’ in the formation of the public nancial decision”
(Silva, 2022, p. 63), which may result in greater vulnerability as regards the conformity of the decision with
the law. In other words, preventive controls are being stepped back and successive controls are being extended,
even though the latter may be performed after a legal irregularity has already occurred.29,30
3.2 Making public procurement rules more exible
The necessary timely implementation of the PRRP was also based on the provision of special public
procurement measures.31 That is, along with the general public procurement rules provided for under the
Portuguese Public Procurement Code (Código dos Contratos Públicos or CCP),32 the legislator opted to
provide special public procurement rules to ensure swift implementation of the PRRP, since expedited public
procurement is needed to ensure the rapid absorption of funds.33 These measures are optional for the contracting
entities, which may choose between the general rules or these special public procurement measures. Although
these cover several areas of economic activity and different regimes, revealing variable geometry in terms of
procedure and deadlines,34 this article will deal only with special measures that apply to the implementation
of projects nanced or co-nanced by European funds, and the PRRP in particular.
On the one hand, special or simplied pre-contractual procedures are provided for: the simplied “public
tender”,35 “public tender with prior qualication”,36 “prior consultation”37 and “direct award”.38 These are
not really new procedures, but rather procedures which have been simplied to maintain the typication of
21 See Article 5 of Decree-Law No. 53-B/2021, of 23 June, which establishes the exceptional regime of budget execution and
simplication of procedures for projects approved under the Recovery and Resilience Plan.
22 See Article 6 of Decree-Law No. 53-B/2021, of 23 June.
23 See Article 7 of Decree-Law No. 53-B/2021, of 23 June.
24 See Article 8(4) of Decree-Law No. 53-B/2021, of 23 June.
25 See Article 9 of Decree-Law No. 53-B/2021, of 23 June.
26 See Article 10 of Decree-Law No. 53-B/2021, of 23 June.
27 See Article 9 of Decree-Law No. 53-B/2021, of 23 June.
28 See Article 15 of Decree-Law No. 53-B/2021, of 23 June. On this regime, see Cavaleiro (2022, p. 83).
29 On simplication in this context of European fund management, see Pretel (2021, p. 250 ff.).
30 On the relationship between administrative simplication and the economic crisis by analysing the experience of several European
countries (particularly, France and Spain), see Travi et al. (2018, pp. 241–263).
31 Law No. 30/2021, of 21 May, which approves special measures for public procurement and amends the Public Procurement Code,
approved in annex to Decree-Law No. 18/2008, of 29 January, the Code of Procedure in Administrative Courts, approved in annex
to Law No. 15/2002, of 22 February, and Decree-Law No. 200/2008, of 9 October.
32 Decree-Law No. 18/2008, of 29 January (with multiple amendments).
33
In the Spanish context, see Pernas García (2021, p. 161).
34 On this regime, see Gonçalves et al. (2021, 47 ff.).
35 Concurso público in general, see articles 130 et seq. of the CCP.
36 Consurso público com prévia qualicação in general, see articles 162 et seq. of the CCP.
37 Consulta prévia in general, see articles 112 et seq. of the CCP.
38 Ajuste directo in general, see articles 112 et seq. of the CCP.
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public procurement procedures provided for under the CCP.39 The simplied procedures regime refers to:
(i) electronic processing (as a rule, the processing is electronic);40 (ii) exemption from the obligation to state
reasons (waiver of the requirement to state reasons for the decision not to procure in lots, and for the xing of
the base price);41 (iii) choice of entities invited to the simplied prior consultation (limitation of entities which
may be invited);42 (iv) impediments (special rules on compliance with tax and social security obligations of
competitors);43 (v) prior hearing (reduction of deadlines);44 (vi) surety (special rules for the waiver of surety);45
(vi) administrative appeals (reduction of deadlines).46
On the other hand, in addition to the above, other procedural alterations – amendments applicable to non-
simplied procedures – are anticipated.47 With regard to public tender or limited tender by prior qualication
(not simplied), reduction of the deadline for submission of bids and applications is permitted thus: (i) 15 days
for submission of bids in public tender with international publicity;48 (ii) 15 days for submission of applications
in limited tender by prior qualication with international publicity;49 (iii) 10 days for submission of bids in
limited tender by prior qualication with international publicity.50 In addition to these deadline reductions, the
stipulated justication in these provisions of the CCP is waived, in other words, substantiation of the urgency
is not a requirement. This exemption is based on a ction of legal urgency.
Lastly, a system of administrative offences was created as a counterbalance to the exibility of the special
public procurement measures.51 In short, the minimum and maximum amounts of nes laid down for public
procurement in general are doubled.52
The special public procurement measures described aim to simplify and expedite pre-contractual procedures
in order to boost economic recovery (Raimundo, 2021, p. 58). However, this increased exibility has a
tendency to jeopardise the fundamental values and principles of public procurement. In fact, the Portuguese
Court of Auditors has already presented a report on the rst ve months of application of the special public
procurement measures, in which it states that “the main consequence of the application of the special measures
for public procurement is the widening of the use of non-competitive procedures of direct award and simplied
prior consultation”.53 As a way of counterbalancing this exibility, the control system of this special public
contracting framework was strengthened from the outset by the Court of Auditors.54
4 The Portuguese Court of Auditors
The need for economic and nancial control of public accounts has led most modern states to create a body that
performs this task. This typically constitutional body forms part of the primary structure of the state, although
its composition, organisation, functions and operation vary from one country to another. This difference has
39 See Article 16(1) of the CCP.
40 See Article 10 of Law No. 30/2021, of 21 May.
41 See Article 11 of Law No. 30/2021, of 21 May.
42 See Article 12 of Law No. 30/2021, of 21 May.
43 See Article 13 of Law No. 30/2021, of 21 May.
44 See Article 14 of Law No. 30/2021, of 21 May.
45 See Article 15 of Law No. 30/2021, of 21 May.
46 See Article 16 of Law No. 30/2021, of 21 May.
47 See Article 2 of Law No. 30/2021, of 21 May.
48 See Article 136(3) of the CCP.
49 See Article 174(2) of the CCP.
50 See Article 191(5) of the CCP.
51 See Article 20 of Law No. 30/2021, of 21 May.
52 Under the terms of articles 456–458 of the CCP.
53 See Tribunal de Contas – Relatório N.º 1/2021 – OAC/PG, consulted on 2 January 2022.
54 Also in the sense of the need to strengthen control of contracts nanced by European funds, see Bernal Blay (2021, p. 237).
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led authors to present various criteria to distinguish these bodies from other entities and highlight the existence
of different models from the outset.55
In the Portuguese legal system, the competent body for the control of public accounts is the Court of Auditors,56
which is constitutionally established in Article 214 of the Constitution of the Portuguese Republic. A sovereign
body with the nature of a court (Franco, 2001, p. 458), it is both unique and autonomous57 and performs three
functions that go far beyond the jurisdictional, namely: (i) a consultative function “of a technical and political
nature”, which consists of giving an opinion on the Portuguese State General Account; (ii) a “preventive
supervisory function”, which allows it to pronounce on the administrative legality and nancial regularity
of the intended item of public expenditure; and (iii) a “jurisdictional function”, reected in the audit of the
accounts at the end of each year (Estorninho, 1996, p. 311).
In addition to its judicial activities, the Court of Auditors carries out activities of a materially administrative
nature (or powers of nancial control). These activities are mainly centred on assessing prior approval58 and
making decisions on nancial liability cases resulting from monitoring actions carried out by the Court of
Auditors.59
4.1 The role of the Portuguese Court of Auditors in monitoring European funds destined for the
PRRP
The control of European funds is an essential material competence of the Court of Auditors (Correia, 1997,
pp. 129–159). In this regard, it should be borne in mind that it is within the competence of the Portuguese
Court of Auditors to audit, at national level, the collection of own resources and the application of nancial
resources originating from the European Union, in accordance with the applicable law.60 To put it another
way, it is responsible for monitoring formal and substantive legality: strict legality, nancial regularity and
management correctness (Correia, 1997, p. 140). Internally, European funds are public money like any other
(Franco, 1995, p. 230).
The Court of Auditors has a special role to play in monitoring nancial and administrative legality in the
implementation of the PRRP. In addition to the above, the administrative and nancial legality of the measures
adopted in the implementation of the PRRP (not only in terms of public procurement)61 may be assessed
in the context of this Court’s opinion on the Portuguese State General Account, when verifying accounts
provided by managers, and in the context of systems, regularity and performance audits of systems, funds,
instruments and commitments. Also worth highlighting are the successive monitoring of public contracts and
indebtedness, and the assessment and enforcement of responsibilities for nancial violations detected during
the implementation of European support programmes such as the PRRP.
Lastly, the Portuguese Court of Auditors may have contact with these issues through the monitoring of actions
undertaken by the European Court of Auditors in Portugal. Coordination of national control bodies with
European control bodies is also required.
55 The most common models are Anglo-Saxon, Germanic, Scandinavian and Latin. On these models, see Cubillo Rodríguez (1999,
p. 61 ff.)
56 On this, among many, see Sampaio (2001, pp. 667–688); Canotilho (2008, pp. 23–39); Tavares (2008, pp. 38–44); Martins (2012,
pp. 633–647).
57 See Tavares (1996, p. 462 ). Considering it “a fundamental organ of the Public Administration”, see Amaral (2012, p. 297).
58 The jurisdictional nature of the prior approval (visto prévio) or, more specically, the refusal of prior approval, has been much
discussed, with positions varying between considering it to be either jurisdictional or materially administrative in nature. A summary
of these positions can be found in Duarte (2008, pp. 31–37).
59 See Chapters IV and V of Law No. 98/97, of 26 August, which approves the Law of Organisation and Procedure of the Court of
Auditors (“Law No. 98/97, of 26 August”). Qualifying as jurisdictional the processes of enforcement of nancial liability, see Raposo
(2004, pp. 43–66); Canotilho and Moreira (2010, pp. 577); Cura (2011, p. 76 ff.), among others.
60 See article 5(1)(h) of Law No. 98/97, of 26 August.
61 See below.
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4.2 Specic role of the Portuguese Court of Auditors in special public procurement measures
First of all, it must be expressly stated that the control of public procurement expenditure by the Court of
Auditors62 appears to be a general (noble and fundamental) competence (Tavares, 2008, p. 991). This means
that, depending on their nancial value, certain public contracts will be subject to prior supervision63 while
others may require concomitant supervision;64 nally, there will be successive control covering the entire
contractual activity of the entities subject to the Court’s control. In addition, should Court of Auditors or
reporting body reports reveal facts entailing nancial liability, the corresponding legal65 proceedings may be
instituted.
The special measures under consideration also lay down rules for auditing of the special measures66 by the
Portuguese Court of Auditors, including contracts nanced by the PRRP.67
A system of prior supervision is provided for contracts with a value equal to or greater than €750,000 (stand-
alone contracts) and €950,000 (interrelated contracts), following the general rule for supervision of public
contracts in this respect.68
Additionally, a concomitant monitoring regime has been provided for contracts worth less than €750,000
(single contracts) and €950,000 (interrelated contracts). Contracts falling into this category must be sent
electronically to the Court of Auditors within 10 days of their conclusion and accompanied by the respective
administrative documents.
For the purposes of making these rules operational, the Court of Auditors has approved instructions69 requiring
that each contract sent to the Court of Auditors be accompanied, where applicable, by the following documents:
(i) decision or resolution to contract; (ii) decision or resolution approving the stages of the procedure; (iii)
programme of the procedure; (iv) specications; (v) contractor’s proposal; (vi) nal report of analysis of
proposals; (vii) award decision or resolution; (viii) declaration of the contractor pursuant to Annex II of the
CCP; (ix) decision, protocol or contract approving European funding.
Failure to send the contract and respective documents to the Court of Auditors renders the contract ineffective
for payment purposes.
In a situation in which the Court of Auditors detects an illegality in the scope of the concomitant control,
two hypotheses must be taken into account: (i) if the illegality is detected before execution of the contract
commences, the contracting entity must be instructed to submit the contract for prior supervision and not
to commence execution until approval is obtained, under penalty of nancial liability;70 (ii) if execution
has already commenced, and even if the contract has already been executed in full, the audit report must be
forwarded to the Public Prosecutor’s Ofce71 for the purposes of determining any nancial liabilities.72
62 On the overseeing of public contracts by the Court of Auditors, see Magalhães (2006, pp. 203–217); Tavares (2008, 967–991);
Martins (2011, 9–19); Tavares (2018, pp. 197–214); Gonçalves (2020, p. 1003 ff.).
63 See articles 46, 47 and 48 of Law No. 98/97, of 26 August.
64 See Article 49(1) of Law No. 98/97, of 26 August.
65 See articles 57 and 89. On no nancial discipline without nancial liability, see Correia (1997, p. 157).
66 See Article 17 of Law No. 30/2021, of 21 May.
67 Although difcult to put into practice, “the monitoring of public contracts nanced by European funds” is a very popular topic.
In the Spanish context, see Bernal Blay (2021, p. 240 ff.).
68 See Article 48 of Law No. 98/97, of 26 August.
69 See Court of Auditors Resolution No. 5/2021-PG, of 28 June, approving the instructions establishing the discipline applicable
to electronic submission to the Court of Auditors of the contracts referred to in Article 17(2) of Law No. 30/2021, of 21 May, which
approves, among other provisions, special measures for public procurement.
70 Pursuant to the general regime provided for in articles 5(1)(c) and 49(2) of Law No. 98/97, of 26 August.
71 On the Portuguese Public Prosecutor’s Ofce, see Pedro (2016, p. 408 ff.).
72 Under the terms of paragraph 3, Article 49 of Law No. 98/97, of 26 August.
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5 Further monitoring of special public procurement measures: the independent commission
In addition to the aforementioned supervision by the Court of Auditors, provision is made for the special
measures to be audited by an independent administrative commission with increased powers.73,74 In short,
dual supervision is permitted.75
The mission and general competence of this commission is to monitor and supervise pre-contractual procedures,
as well as the conclusion and implementation of the respective contracts, particularly monitoring compliance
with the applicable transparency and impartiality requirements, and the implementation of contracts concluded
as a result of these procedures.
The commission’s specic powers include preparation and submission to the contracting authorities of generic
or specic recommendations on the following: (i) carrying out of pre-contractual procedures, beginning
with procedures relating to the PRRP; (ii) conclusion and performance of the corresponding contracts; (iii)
preparation of half-yearly evaluation reports on the carrying out of the above procedures, and conclusion and
performance of the respective contracts, which must be sent to the Portuguese Government and Parliament,
the Court of Auditors and the Public Prosecutor’s Ofce.
Lastly, it is the duty of the contracting entities to collaborate with this commission, and any breach of this
duty will be disclosed in the commission’s reports and the Public Prosecutor’s Ofce will be notied for the
purpose of ascertaining criminal liability.
6 Monitoring the PRRP: review of the puzzle and conclusions
6.1 Control of PRRP by the Court of Auditors: balancing items
As already mentioned, implementation of the PRRP required a set of legislative changes in the Portuguese
legal system, whether from the organic point of view (creation of new entities or attribution of competences to
existing entities) or from the point of view of administrative procedures (as a rule, through the simplication
and reduction of previous controls), the underlying idea being that administrative and procedural simplication
can contribute to achieving the objective of agile and efcient management of European funds.76
In the context of implementation of the RRM and the PRRP, control is a characteristic that presents itself as
a basic pillar (Quirós Castro, 2021, p. 349). Therefore, the control competences carried out by the Portuguese
Court of Auditors take on particular relevance (Feio, 2021, p. 6).77 In other words, the Portuguese Court of
Auditors may play a key role, through the development of its general functions regarding the monitoring
of nancial legality in matters of European funds and public procurement, through specic competences
regarding special public procurement measures, as well as through the maximisation of (pedagogical?) risk-
warning competences and collaboration with the entities responsible for implementation of the PRRP78,79 and
73 See articles 18 and 19 of Law No. 30/2021, of 21 May.
74 It is debatable whether the potential of this commission should not be harnessed to play a more preventive and proactive role, for
example, in the design of standard contractual clauses and standardisation of certain tender specications in the eld of sustainable
public procurement.
75 On the risk of overlapping the competencies of this independent commission with those of the Court of Auditors, see Caldeira
(2021, p. 102). As the aforementioned doctrine also points out, the practical relevance of this commission is dependent on the human
resources it has at its disposal (currently ve).
76
In the Spanish context, see Pernas García (2021, p. 164).
77 The importance of control by an entity such as the Court of Auditors is also noted in the Spanish context, see Quirós Castro (2021,
p. 349) and Navarro Molines (2021, p. 396), and much defended in the Italian context, see Bonura and Mattarella (2021, p. 16),
Villani (2021, p. 5) and Quaglini (2021, p. 38).
78 In the sense of maximising the informative collaboration competences of the Court of Auditors with the audited entities, see
Silva (2021, p. 72 ff.). This collaboration, if intensied, could prove highly relevant for understanding of the Court of Auditors’ legal
interpretation of the most diverse subjects, such as public procurement.
79 In the sense that there should be “an adequate articulation of the internal control bodies at the various levels of action, and an
articulation of the internal control system globally considered with the external control body”, see Correia (1997, p. 155).
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with the European Court of Auditors.80 Moreover, in the context of implementation of the PRRP, these tasks
are no more than a concretisation [of the control of] the balance of the nancial life of the plan (Tavares,
2021, p. 12).
The relevance of the Court of Auditors is even greater insofar as the management of European funds destined
for implementation of the PRRP is entrusted to a diverse set of public entities (and is not centralised with the
management authorities, as is the case with European structural and investment funds), i.e., entities with less
experience in the management of these funds.
Lastly, while control activities are fundamentally important in normal times and at any time during the
implementation of normal investments, they are even more essential in extraordinary times with investments
that are challenging in terms of new dimensions – both in terms of implementation times and the amount of
overall resources – such as those currently envisaged in the Union Recovery and NextGenerationEU package
(Villani, 2021, p. 5).
6.2 Control of the PRRP by the Court of Auditors: scope and capacity
Without prejudice to the powers of the Court of Auditors in the area of prior control,81 a large part of its
monitoring of the PRRP is based on successive control, and even the concomitant control (exercised during the
pendency of the procedure or execution of the contract82) performed in relation to special public procurement
measures (contracts under €750,000) may already reveal nancial illegalities with a negative impact on the
implementation of the PRRP.83 To put it another way, by the time the Court of Auditors acts, it may already
be too late, in the sense that some illegalities will have already taken place, which may lead to losses of
European funding.84
Furthermore, effective control by the Court of Auditors is dependent on compliance with the rules on the part
of the public entities involved. For example, if the entities obliged to submit public contracts to the Court fail
to do so, and even execute the contracts before they are submitted, the Court may not be aware of them in
due time, only becoming aware of them a posteriori in the wake of a successive audit.
On the other hand, the public procurement regime mobilised for the implementation of European funds may
not take place through recourse to special public procurement measures, but rather through the general rules of
public procurement, in which case it is within the Court’s discretion whether or not to conduct a concomitant
control.
Beyond the rules on public procurement, it should also be noted that the special measures for implementation
of the PRRP are not dedicated to providing a solid legal regime on the allocation of subsidies by public entities;
such regulation tends to occur through either technical guidance or its provision in the contract to be signed
with the beneciary of the subsidy. We clearly nd ourselves in a context of public promotion of investments,
in which the importance of the role of subsidies will be highlighted (Navarro Molines, 2021, p. 471). It should
be added that neither does the national legal system benet from a duly developed legal regime in relation to
the attribution of public subsidies in general,85 which will be of little help in satisfying administrative legality
80 See Feio (2021, p. 35). On the relevance assumed by the Italian Court of Auditors in its relationship with the Union (nancial
relations between Italy and the European Union), see Villani (2021, p. 5). I refer to a “renewed mission” on the part of the Court of
Auditors (p. 7).
81 See Article 17(1) of Law No. 30/2021, of 21 May, and Article 48 of Law No. 98/97, of 26 August.
82 See Article 49 of Law No. 98/97, of 26 and August and Almeida (2008, pp. 79–204).
83 And revealing nancial liability, as would be the case of violation of the duty of communication and remittance accompanied
by concomitant execution of the contract (see Article 17(4) of Law No. 30/2021, of 21 May). This would constitute, not only a
procedural irregularity, but a true nancial infraction, punishable under the terms of Article 65(1), paragraph (b), of Law No. 98/97,
of 26 August.
84 This indicates that the moment of control should be brought closer to the moment of administrative management, to the benet
of the latter, making it possible to intervene quickly, avoiding delays and irregularities in implementation in crucial sectors for crisis
recovery and economic development. See Quaglini (2021, p. 38).
85 See Decree-Law No. 167/2008, of 26 August, which establishes the legal regime applicable to the award of public subsidies
and Law No. 64/2013, of 27 August, which regulates the obligation to publicise the benets granted by the Public Administration
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and legal certainty. In such a sensitive and relevant matter, therefore, we cannot fail to recognise that the value
of legal security and transparency would require detailed legislative treatment in compliance with the principle
of administrative legality, with respect to administrative procedures for granting subsidies and recovery of
unwarranted payments.86 Moreover, the element of urgency in implementing procedures relating to subsidies
is also relevant here, hence the provision of simplied procedures capable of ensuring the aforementioned
concern would also be justied in this area.87 If this does not take place – if there is a lack of a clear, precise
and adequate legal framework – the proper implementation and control of the funds received for the PRRP
may be jeopardised, since one of the essential tools of the external control carried out by the Court of Auditors
is the legal framework in force.
6.3 Control of the PRRP by the Court of Auditors: type of control required
First of all, it should be made clear that the very nature of the activity of the Court of Auditors is not without
controversy.88 Although it is a Court, not all of its functions are jurisdictional; many of these functions are
related to inspection of nancial legality (and other purposes).89
It is also not unknown for the execution of its competences to vary between a minimalist and a maximalist90
approach, resulting from the Court of Auditors’ strategic options in the external control of public nances and,
presumably, the means available for these. The application of European Union funds and public procurement
are among the aforementioned strategic options open to the Court of Auditors (Tavares, 2021, p. 20).
In this scenario, and although the Court’s activity in the monitoring/control91 of European funds should be
directed towards the monitoring of deciencies in internal control or management systems with a view to their
correction, it should be stressed that, in addition to compliance with legal rules (with nancial impact) on the
management of European funds, the PRRP is based on compliance with targets (quantitative achievements)
and milestones (qualitative achievements)92 according to the principle of result orientation,93 and payments
are based on results achieved according to the recovery and resilience plans94 and, of course, in compliance
with the six pillars of the RRM.
to private individuals. Although these frameworks also apply to grants nanced by European funds, the truth is that they are rather
sparse in that, as far as these grants are concerned, they merely provide that the granting of public grants is subject to the general
principles of administrative activity and to the duty of communication and publicity.
86 It should be noted that this is no innovation, since the allocation of European funds in Portugal as a rule benets from an
administrative procedure set out in a legal framework. With reference to the legal framework provided for the implementation of the
2014–2020 Multiannual Financing Framework, see Pedro (2020, p. 32 ff.).
87 For an overview of the Spanish legal system, among many others, see Navarro Molines (2021, p. 379 ff.).
88 Moreover, this is somewhat aggravated by the fact that the Court of Justice of the European Union (CJEU) does not consider
the Portuguese Court of Auditors to be a “national court or tribunal” for the purposes of a preliminary reference, in the context of
“prior approval” (Order of the CJEU of 25.04.2018, Case C-102/04). On the notion of “national court or tribunal” for the purposes
of preliminary reference, see Pedro (2016, p. 171 ff.). A more demanding and rigorous discussion indicates that the nature of a
court may be questioned in relation to the main functions attributed to it, rst, because the data of comparative law allows that such
functions may be exercised by entities other than courts. Furthermore, even accepting the constitutional option of being before a true
court, doubts do not cease to arise with respect to the nature of its main activities, its possible relationship with other jurisdictional
bodies and, within the Court of Auditors itself, the segregation of certain functions (non-jurisdictional and jurisdictional).
89 For a systematisation of the acts of the Court of Auditors, see Rocha (2021, p. 101 ff.).
90 Sometimes over areas of administrative discretion. See Gonçalves (2020, p. 1005).
91 On the basic notion of the “monitoring/control” in question: “the set of actions aimed at confronting a main action (controlled)
with its objectives or goals and with the principles and rules it must obey” and for further developments. See Franco (1993, p. 127 ff.).
92 See Article 2(4) of the RRM.
93 See Article 2(a) and (b) of Decree-Law No. 29-B/2021, of 4 May. In this context, the doctrine insists on the need for a performance
audit. See Quirós Castro (2021, p. 352 ff.); Villani and Vasarri (2021, p. 24).
94 In the context of European funds in general, the control objectives are: (i) assess the suitability of the management structures
and the security of the internal control systems at the various levels; (ii) verify the degree of use of the European nancial resources
made available under the European Support Framework; (iii) verify whether they were applied for the purposes for which they were
allocated; (iv) verify whether the results achieved correspond to the objectives dened by the political will. See Correia (1997, p.
157). In the context of the PRRP, the nal reimbursement will be made based on evidence that the anticipated actions have been
implemented and have produced the expected results in terms of economic and social well-being.
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In addition to these results, we conclude by stressing that the PRRP implementation regimes imply compliance
with a wide range of values relevant to national and European legality.95 That is to say, control ultimately
gains a dimension that may extend to verifying compliance with rules aimed at safeguarding fundamental
values of the democratic rule of law, such as impartiality, transparency and equality; fundamental values of
the internal market, such as the principles of competition,96 non-discrimination and nancial sustainability; as
well as certain public policies (economic, environmental and social cohesion,97 etc.). Closer to the language of
the RRM, monitoring of the PRRP by the Court of Auditors should not fall short of compliance with the rules
of European Union and national law, particularly the principles of sound nancial management, prevention
and effective repression of fraud, tax evasion, corruption and conicts of interest, with respect to the agreed
expected results.
6.4 The Court of Auditors’ monitoring of the PRRP: conclusion
Implementation of the PRRP, which must be performed in addition to ordinary tasks, requires a huge effort
from the various public entities involved and, in matters of external control, poses a particular challenge for
the Court of Auditors.
Given the role it has been assigned in the context of the PRRP, the Court of Auditors is the great custodian of
the hope that European public money will be well spent (and of inherent economic recovery and “investment
in the future”98 of the MS and the Union), and the conviction that much needs to be done: alea jacta est!
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