Government Ordinance No. 119/1999

regarding the internal control and the preventive financial control,

republished in the „Monitorul Oficial”, Part I, No. 799 of November 12, 2003

 

- Approved by the Law No. 84/2003, published in Romania’s Official Gazette, Part I, No. 195/March 26, 2003

- Republished in Romania's Official Gazette, Part I, No. 799/November 12, 2003

                  

CHAPTER I

General Provisions

 

Article 1

Scope of the Ordinance

 

The present ordinance regulates the internal control and the preventive financial control at all public entities and as regards the use of public funds and the administration of public patrimony.

 

Article 2

Definitions

 

For the purpose of this law, the terms and phrases hereinafter are defined as follows:

a) legal commitment - any act having a legal effect from which an obligation concerning public funds or public patrimony results or might result;

b) conformity - the characteristic feature of an operation, of acts or administrative facts produced within a public entity to correspond to the policy expressly incurred in the respective area by the public entity or by its superior authority, according to the law;

c) preventive financial control - the activity by which the lawfulness and the regularity of the operations concerning public funds or public patrimony are verified, before their approval;

d) internal control -  the ensemble of the control forms exercised at the level of public entity, including the internal audit, established by the management, according with its objectives and with legal regulations, in order to ensure the administration of funds in an economic, efficient and effective way; it includes, also, the organisational structures, the methods and procedures;

e) delegated controller - the civil servant of the Ministry of Public Finance, who independently exercises attributions of delegated preventive financial controller, according to the present ordinance;

f) commitment credit - the maximum amount of expenditures that can be committed, during the budgetary exercise, within the approved limits;      

g) budgetary credit - the amount which is approved in the budget, representing the maximum limit up to which payments can be ordered and performed during the budgetary exercise and/or from previous exercises, for multi-annual actions, respectively the maximum limit up to which payments from the budget for the other actions can be committed, ordered and performed;

h) cost-effectiveness - minimising the cost of allocated resources, in order to reach the estimated results of an activity, maintaining the corresponding quality of these results;    

i) effectiveness - the degree of accomplishing the programmed objectives of an activity and the relationship between the projected effect and the effective result of the respective activity;      

j) efficiency: maximising the results of an activity, in relationship with the used resources;

k) public funds - amounts allocated from the State budget, local budgets, State social insurance budget, special funds budgets, State Treasury budget, autonomous public institutions budgets, budgets of public institutions financed partially or totally from State budget, State social insurance budget and special funds budget, as the case may be, budgets of public institutions financed totally from own revenues, budget of funds from external credits contracted or guaranteed by the State and whose reimbursement, interests and other costs are ensured from public funds, non-reimbursable external funds budget, external credits contracted or guaranteed by local public administration authorities, internal loans contracted by the local public administration authorities, as well as from public institutions budgets financed partially or totally from local budgets;

l) inspection - verification done on the spot, in order to find out eventual infringements of lawfulness and to take measures to protect the public funds and public patrimony and for repairing the prejudice produced, as the case may be;

m) public entity - public authority, public institution, company/national society, autonomous regia, trade company where the State or a territorial-administrative unit is the major shareholder, being a legal person, which administers/uses public funds and/or public patrimony;

n) public institution - Parliament, the Presidency Administration, ministries, other specialised bodies of public administration, other public authorities, autonomous public institutions, as well as the institutions subordinated to them, regardless of way they are financed from;

o) lawfulness - characteristic feature of an operation to respect all legal provisions that are applicable to it and that are in force when such an operation is performed;

p) operation - any action having a financial impact on public funds or on public patrimony, regardless of its nature;

q) opportunity - characteristic feature of an operation of adequately serving, in given circumstances, the fulfilment of some objectives of the assumed policies;

r) credit ordonnator - the person entitled by law or having a delegation under the law to order and to approve operations;

s) public patrimony - all the rights and duties of the State, territorial-administrative units or their public entities, achieved or incurred by any title. The rights and the duties of the State of territorial-administrative units refer both to the goods belonging to the public domain, as well as to those belonging to the private domain of the State and of the territorial-administrative units; 

t) the person appointed to exercise the own preventive financial control - the person within the specialised compartments, appointed by the manager of public entity to exercise the own preventive financial control, or the person who is performing this attribution based on a contract, under the law; 

u) operation project - any document by means of which the performance of an operation is sought, in the form prepared for its approval by the competent authority, under the law;

v) regularity - the characteristic feature of an operation to fully observe all the principles and methodological and procedural rules applicable to the respective category of operations.

 

Article 3

The objectives of the internal control

 

The internal control has the following general objectives:

- the accomplishment, at a certain quality level, of the attributions of public institution, established accordingly to their own mission, in conditions of regularity, cost-effectiveness, efficiency and effectiveness;

- the protection of public funds against losses due to error, waste, abuse or fraud;

- the observance of law, regulations and management’s decisions;

- the development and the maintenance of some collection, storage, process, updating and disclosure systems of data and financial and management information, as well as some systems and procedures of adequate public information through periodical reports.

 

Article 4

The duties of the head of public institution in the area of internal control; the requirements of the internal control

 

(1) The head of the public institution must ensure the elaboration, the approval, the application and the improvement of the organisational structures, the methodological rules, procedures and evaluation criteria, in order to satisfy the general and specific requirements of internal control. 

(2) The general and specific requirements of internal control are, mainly, the followings:

a) general requirements:

- ensuring the accomplishment of the general objectives provided at the article 3, by a systematic evaluation and maintaining at a level considered as acceptable of the risks associated to the structures, programmes or operations;

- ensuring a collaborative attitude of the management and executive staff, this one having the duty to answer at any moment to the management’s requirements and to support effectively the internal control;

- ensuring the integrity and the competence of the management and executive staff, the knowledge and understanding by these of the importance and role of the internal control;

- establishing the specific objectives of the internal control, so that these to be adequate, comprehensive, reasonable and integrated into the mission of the institution and into its overall objectives;

- surveying in a continuos way by the management staff of all the activities and the accomplishment by the management’s staff of the duty to act in a corrective manner, prompt and responsible, as many times as infringements of the lawfulness and regularity in performing some operations or in realising some activities in a non-economic, inefficient and ineffective way are found;

b) specific requirements:

- reflecting the organisation of the internal control in written documents, all the operations performed by the institution and all the significant events, as well as the registration and keeping in an adequate way of documents, so that these to be available promptly, in order to be examined by the entitled persons;

- immediate and correct registration of all the significant operations and events;

- ensuring the approval and performance of the operations exclusively by the persons special entitled in this sense;

-  separation of the attributions regarding the performance of operations between persons, so that the attributions of approval, control an registration to be attributed to different persons, in an adequate measure;

- ensuring a competent management at all levels;

- ensuring the access of resources and documents only by the persons who are entitled and responsible as regards their use and keeping.

 

Article 5

Sound financial management

 

(1) The persons who manage public funds or public patrimony have the duty to realise a sound financial management by assuring the lawfulness, regularity, cost-effectiveness, efficiency and effectiveness in using public and administering public patrimony.

(2) The Ministry of Public Finance is the authority of specialised central public administration which has the responsibility to elaborate and implement the politics in the financial management area. The Ministry of Public Finance guides methodologically, coordinates and surveys the sound financial management in using public funds and in administering the public patrimony.         

 

 

CHAPTER II

Provisions on the Preventive Financial Control

 

Section I

General Provisions on Preventive Financial Control

 

Article 6

Scope of the Preventive Financial Control

 

(1) The scope of preventive financial control is represented by the operation projects which refers mainly to the following:

a) budgetary and legal commitments;

b) the opening and allocation of budgetary credits;

c) changing the allocation by quarters and by sub-divisions of the budgetary classification of approved credits, including by credit transfers;

d) ordering of expenditures;

e) performing encashments in cash;

f) construction of the public revenues as refers to authorising and setting the cash titles;

g) reduction, reprogramming or cancelling cash titles;

h) construction of the own resources of the European Union representing Romania’s future contribution to this body;

i) recovery of the paid amounts which consequently became unduly ;

j) sale, pledging, concession or lease of property belonging to the private domain of the State or of the territorial-administrative units;

k) concession or lease of property belonging to the public domain of the State or of the territorial-administrative units;

l) other type of operations, established by order of Minister of Public Finance.

(2) Depending on the specific traits of the public entity, its manager can decide on exercising preventive financial control also on other types of operation projects than those set out in paragraph (1).

 

Article 7

Content of the Preventive Financial Control

 

The preventive financial control consists of a systematic check of operation projects which are subject to it under article 6 in respect of:

a) lawfulness and regularity;

b) compliance with the limits of budgetary credits or commitments credits, from case to case, established according to the law.

 

Article 8

Organisation of the Preventive Financial Control

 

(1) The Ministry of Public Finance is the authority coordinating and regulating the preventive financial control for all public entities.

(2) The preventive financial control is uniformly organised and exercised by the competent authorities according to the provisions of this ordinance and of the normative acts issued for its enforcement.

(3) The preventive financial control is organised and exercised in the following forms:

a) own preventive financial control, at all public entities and for all operations with financial impact on public funs and on public patrimony;

b) delegated preventive financial control, through delegated controllers of the Ministry of Public Finance, at the main credit ordonnators of the State budget, State social insurance budget, as well as of any special fund budget, at the National Fund and at the implementing agencies of Community funds, as well at other high-risk public entities.

(4) The preventive financial control will be gradually integrated into the sphere of management’s  responsibility, process which has to be finalised by the date of Romania’s accession to the European Union, as the management control will ensure the elimination of risks in administering the public funds; the accomplishment of this level will be evaluated by the internal audit of the Ministry of Public Finance.  

  

Section II

Provisions on Own Preventive Financial Control

 

Article 9

Organisation of the own preventive financial control

 

(1) Public entities, through their managers, have the duty to organise their own preventive financial control and the evidence of the commitments in the accountant compartment.

(2) The managers of public entities have the duty to establish the operation projects subject to preventive financial control according to article 6, the justifying documents and their flow chart, complying with legal provisions.

(3) The evidence of the commitments is organised, kept, updated and reported according to the methodological norms approved by order of the Minister of Public Finance.

(4) The Ministry of Public Finance also organises the own preventive financial control for the operations related to the State Treasury budget, operations related to the public debt and other operations which are specific to the Ministry of Public Finance.

(5) The own  preventive financial control is exercised through visa by the persons working in the specialised compartments, appointed in this sense by the manager of public entity. The appointment act will include also the competence limits in exercising the own preventive financial control. The persons appointed to exercise these activities are other than those who initiate the operation submitted to visa. 

(6) The appointment, dismissal, suspension from office or replacement of staff carrying out the own preventive financial control activities are done by the manager of public entity, with the approval of the superior public entity, and with the agreement of the Ministry of Public Finance,  in the case of public entities where the function of main credit ordonnator of State budget, State social insurance budget or any special fund budget is exercised. The persons appointed to exercise the own preventive financial control must have the professional competencies required by this activity. They will respect a specific code of professional norms elaborated by the Ministry of Public Finance, which will include the conditions and the unitary criteria that public entities must respect in case of appointment, dismissal, suspension from office or replacement of the staff which is carrying out this activity.

(7) By internal decision of the manager of public entity, the persons appointed to perform the own preventive financial control may benefit of an incentive for complex work up to 25% applied to the gross basic monthly salary.

(8) The evaluation of the activity of the person which is carrying out own preventive financial control activities is done by the manager of the public entity, with the agreement of the public entity which endorsed the appointment, on a yearly basis through scores, based on the information included in the internal public audit reports and in the Court of Account’s reports, if the case may be. 

(9) The Ministry of Public Finance will draft methodological norms on the general framework of attributions and performance of the own preventive financial control. Also, the Ministry of Public Finance will endorse the specific methodological norms on the organisation and performance of the own preventive financial control elaborated by the main credit ordonnators of the State budget, State social insurance budget or any other special funds budgets, as well as for the operations of the National Fund and of the implementing agencies which are managing Community funds.  

(10) The Ministry of Public Finance will coordinate the training system of the persons appointed to perform the own preventive financial control.

 

Article 10

Own Preventive Financial Control Visa

 

(1) The operation projects that fully meet the requirements of lawfulness, regularity and compliance with the limits of approved budgetary credits or commitment credits, from case to case, which were given the own preventive financial control visa, are the only ones that are submitted for endorsement by the credit ordonnator.

(2) The own preventive financial control visa is exercised by the signature of authorised persons, who are competent in this sense according to provision of this ordinance,  and by applying by them of their personal seal.

(3) In order to give the own preventive financial control visa, the operation projects are presented accompanied by the appropriate justifying documents, whose lawfulness and accuracy are certified by the signature of the heads of the specialised compartments who initiate the respective operation.

(4) The heads of the specialised departments provided for in paragraph (3) are responsible for the accuracy, regularity and lawfulness of the operations whose justifying documents they have certified. The own preventive financial control visa that has been obtained on documents containing inaccurate or false data and/or which subsequently turn out to be illegal does not exonerate from responsibility the heads of the specialised departments who drafted such documents.

(5) The persons who are entitled to perform the own preventive financial control are responsible, according to the law, for their guilt, for the lawfulness, regularity and compliance with the limits of approved budgetary credits or commitments credits, from case to case, as regards the operations for which the own preventive financial control visa has been given.

(6) If, according to legal provisions, operations need to be endorsed by the legal department, the operation project will be submitted to own preventive financial control bearing the visa of the head of the legal department. The persons who are entitled to perform the own preventive financial control may request the opinion of the legal department whenever they consider it necessary.

 

Article 11

Separation of powers

 

A person performing the own preventive financial control must not to be involved, by his/her office duties, in carrying out the operation that is subject to the own preventive financial control.

 

Section III

Provisions on the Delegated Preventive Financial Control

 

Article 12

Organisation  of the Delegated Preventive Financial Control

 

(1) The delegated preventive financial control is organised and exercised by the Ministry of Public Finance through delegated controllers.

(2) The Minister of Public Finance appoints, for each public institution where the function of credit ordonnator of the State budget, State social insurance budget or any special fund budget is exercised, one or several delegated controllers, depending on the volume and complexity of the activities performed by the public institution concerned. The Minister of Public Finance also appoints one or several delegated controllers for the operations carried out through the State Treasury budget, for operations regarding the public debt and for other operations specific to the Ministry of Public Finance. The delegated controller are appointed through a Minister of Public Finance’s order.

(3) By means of methodological norms approved by the Minister of Public Finance there are established:

a) the types of operations whose projects are subject to delegated preventive financial control;

b) the value limits, by types of operations, above which the delegated preventive financial control is carried out;

c) the justifying documents which must accompany various types of operations;

d) the way in which the delegated preventive financial control must be carried out for each type of operation.

(4) The types of operations subject to delegated preventive financial control and, as the case may be, the value limits corresponding to them can differ from one public institution to another.

(5) The delegated controllers exercise the delegated preventive financial control visa on the operations projects previously endorsed by the own preventive financial control of the public institution.

(6) The delegated controllers carry out their activity at the headquarters of the public entities where they were appointed. The public institutions provided for in paragraph (2) ensure to the delegated controller(s) the working premises and necessary equipment, as well as the cooperation of the own staff, particularly of the staff appointed to exercise the own preventive financial control, for a smooth performance of functions of the delegated preventive financial control.

(7) In case of temporary absence from office of a delegated controller, the Minister of Public Finance appoints another delegated controller to fulfil the attributions of the first controller, during his absence.

 

Article 13

Visa of Delegated Preventive Financial Control

 

(1) The operations which, according to article 12, paragraphs (3) and (4), are subject to the delegated preventive financial control, are submitted for approval by the main credit ordonnator only accompanied by the visa of the delegated preventive financial control.

(2) The delegated preventive financial control visa will be granted or refused in writing, on a standard form, and must bear the signature and personal seal of the competent delegated controller.

(3) The persons entitled to perform the delegated preventive financial control are responsible, according to their guilt, for the lawfulness, regularity and compliance with the approved limits of budgetary credits and commitment credits, as regards the operations for which they granted the visa. 

(4) Before issuing a visa refusal, the delegated controller must inform in writing the credit ordonnator as regards his intention and to specify reasons for refusal.

(5) If the credit ordonnator presents arguments, in writing, in favour of carrying out the operation for which a visa refusal is envisaged, the delegated controller, before formally registering such a refusal, may ask for a neutral opinion on the case. In order to formulate a neutral opinion, a commission is ad-hoc constituted by means of the chief financial controller’s decision.

(6) The neutral opinion is accounted for and formulated in writing and has a consultative role, the final solution being the exclusive competence of the authorised delegated controller, according to the principle of the independent exercise of the attributions of delegated preventive financial control.

 

Article 14

Duration of the Delegated Preventive Financial Control

 

(1) The delegated preventive financial is carried out within the shortest time possible, allowed for by the actual duration of the necessary checks, so that it does not affect the smooth and timely performance of the operation whose project is subject to the delegated preventive financial control.

(2) The maximum period for granting or, as the case may be, refusing the delegated preventive financial control visa, is of a maximum of 3 working days after submission of the operation project, accompanied by all justifying documents.

(3) The period provided for in paragraph (2) is suspended from the time of notification set out in article 13, paragraph (4) until an answer is received from the credit ordonnator. The suspension period also is applied for the period of time necessary to formulate the neutral opinion, which cannot be extended to more than 3 working days.

(4) In special circumstances, the delegated controller is entitled to extend the period provided for in paragraph (2) by 5 working days at the most, based on a justifying report that the controller is bound to send to the chief financial controller and to the main credit ordonnator, for their information.

  

Section IV

Provisions on the Delegated Controllers

 

Article 15

Function of Delegated Controller

 

(1) The delegated controller is a civil servant, employed by the Ministry of Public Finance. The number of delegated controller positions is decided upon by the Minister of Public Finance, depending on the needs, within the limits of the approved annual budget and of the total number of posts.

(2) A person employed as a delegated controller must have an economic or a law degree, and at least 7 years of experience in the field of public finance. Applicants for the position of delegated controller must submit their criminal record, as well as information and credentials, indicating that they have an appropriate professional and moral standing to meet the requirements for that position.

 

Article 16

Incompatibilities

 

(1) The delegated controllers must not be the spouses, next of kin or in-laws of the credit ordonnator where they are appointed, up to the fourth degree, included.

(2) The delegated controllers are forbidden to exercise, directly or through intermediaries, trade activities, as well as the participation in the management of or be on the board of trade or civil companies. They must not act as legal experts or as arbitrators designated by the parties in an arbitration case.

(3) The delegated controller position is incompatible with any other public or private office, except for didactic posts in high education institutes.

(4) Delegated controllers must not be members of political parties and must not undertake public activities of a political nature.

(5) The delegated controller who finds himself/herself in one of the situations described in paragraphs (1) - (4) must immediately inform in writing the Minister of Public Finance and the chief financial controller.

 

Article 17

Duties of the Delegated Controller

 

(1) The duties of the delegated controllers are mainly:

a) to carry out the delegated preventive financial control on the operation projects of the main credit ordonnator, according to the appointment order and with the methodological norms approved under this ordinance;

b) surveillance of the organisation, keeping, updating and reporting of the evidence of the commitments;

c) to present monthly reports to the chief financial controller, on the current situation of commitments made, on the visa given or visa refusal intentions and visa refusals, on formulating consultative opinions, as well as specific aspects of carrying out the financial operations;

d) to formulate consultative opinions, at the request of the main credit ordonnator they are appointed by, or at the request of the Minister of Public Finance, as well as self-initiated opinions on the conformity, cost-effectiveness, efficiency or effectiveness of some operations or of draft normative acts;

f) monitoring and methodological guidance of the own preventive financial control;

g) drafting proposals and projects for the improvement of preventive financial control;

i) participating in the activities of the Delegated Controllers’ Body;

h) fulfilling other duties, set out by Minister of Public Finance’s order.

(2) The delegated controller must not give his opinion on the opportunity of operations that are subject to the delegated preventive financial control.

(3) The delegated controller must fulfil his attributions in good faith and in full responsibility. For actions carried out in good faith and in the line of duty, without going beyond his/her competence, the delegated controller cannot be sanctioned or changed from office.

(4) The delegated controller carries out his functions independently. He/she can directly inform the Minister of Public Finance of the special situations that occurred in his/her activity and in no way he/she can be forced to grant or deny the visa of delegated preventive financial control.

(5) The delegated controller must keep the State secret, the trade secrets and the confidentiality in respect of the facts, information and documents that come to their knowledge in the line of duty.

(6) The delegated controller’s performance is assessed annually through scores, given on the basis of information contained in the annual reports on the performance of delegated controllers, reports drawn up by the internal audit structures of the Ministry of Public Finance and reports of the Court of Accounts. The annual scores received by each delegated controller are kept on record throughout his/her term of office. The Minister of Public Finance immediately dismisses the delegated controller whose performance is assessed as “poor” or who gets a “satisfactory” score for three years in a row.

(7) The delegated controller is liable for any irregularity in respect of their duties, according to the provisions in force.

  

Article 18

Professional Grades and Payment of Delegated Controllers

 

(1) Depending on the professional performance attested by the scores awarded as a result of the annual assessment and depending on the length of service, the delegated controllers are employed in the professional grades I, II and III. The minimum requirements and the conditions of promotion from one professional grade to another are established by order of the Minister of Public Finance.

(2) The basic salaries, the incentives and the other salary rights of delegated controllers' are set out through assimilation with the function of financial controller from Court of Accounts’ structure, respectively for grades I, II and III.

(3) The chief financial controller receives a management allowance whose amount is equivalent to the one received by a general director in the Ministry of Public Finance, while his deputies are entitled to receive an amount similar to that earned by a director in the Ministry of Public Finance.

(4) Until the law on the payment of civil servants is applied, the basic salaries, increases and other salary rights of delegated controllers are maintained at the level established before entering into force of the Government Emergency Ordinance no. 160/2000 on the payment of financial controllers working in the Court of Accounts, according with the provisions of paragraph (2) and with the assessment of the professional individual performance.

 

Article 19

Body of Delegated Controllers

 

(1) The Body of Delegated Controllers is organised as a distinct unit within the structure of the Ministry of Public Finance, both at central and territorial levels,  and includes all the delegated controllers.

(2) The body of delegated controllers mainly ensures:

a) the application and development of the advanced principles and practices of good financial conduct;

b) the collaboration and professional exchanges among delegated controllers;

c) the collaboration and professional exchanges with other relevant internal, external and international structures.

(3) The body of delegated controllers is led by the chief financial controller.

(4) The chief financial controller has two deputies whose attributions are established by Minister of Public Finance’s order at the chief financial controller’s proposal.

(5) Also within the Ministry of Public Finance’s structure and subordinated to the chief financial controller there is a specialised directorate which assures the necessary methodological and informational support for the Delegated Controllers Body’s activity and whose attributions are established by order of the Minister of Public Finance, at the chief financial controller’s proposal.  

(6) The chief financial controller and his/her deputies are appointed by Government Decision for a 6-year term, based on a nominal proposal put forward by the Minister of Public Finance, after interviewing 6 applicants nominated from among the delegated controllers by the Body of Delegated Controllers in a plenary meeting, by simple majority. At the date of the plenary meeting is mandatory as the number of the delegated controllers working effectively and effective presented at the meeting to be at least a half from the number of the posts of delegated controllers, established according to the provisions of article 15 paragraph (1). 

(7) One person cannot serve more than one term in office as chief financial controller; also, one person cannot serve more than one term in office as deputy financial controller.

(8) The chief financial controller mainly has to:

a) sustain, before the Minister of Public Finance, the Government and other authorities, as the case may be, the solutions identified in the line of duty by any of the delegated controllers;

b) organise the information system and monitor the actual and timely exchanges of information among delegated controllers;

c) present quarterly to the Minister of Public Finance reports on the activity of delegated controllers, the situation of the intentions of visa refusals and visa refusals, as well as the important aspects regarding the use of public funds;

d) ensure the formulation  of neutral opinions, as provided for in article 13, paragraph (5);

e) organise and monitor the collection, processing and statistical recording of information on the delegated preventive financial control activity and carry out an assessment of such activity;

f) order measures for the enforcement in the delegated controllers’ activity of the advanced principles and practices of good financial conduct and for turning to best account their proposals and contributions to the development and improvement of standards in the field;

g) ensure the methodological guidance in the field of preventive financial control;

h) submit to the Government, by the end of the first quarter of the current year, an annual report for the previous year on the activity of delegated controllers; the report must include, among other things, an analysis from the perspective of previous years of the way of solving cases in which the delegated preventive financial control visa was refused, as well as proposals to improve the financial legislation;

i) elaborate the National Report on the preventive financial control, which has to present for Government’s debate; 

j) assess the performance of each delegated controller and propose to the Minister of Public Finance the annual scores that are to be given;

k) carry out other duties, set through the Minister of Public Finance’s order.

  

Section V

Visa Refusal Situations

 

Article 20

Visa refusal

 

(1) The person entitled to exercise the preventive financial control visa has the right and the obligation to refuse the preventive financial control visa whenever, as a result of verifications, such a person considers that the operation project which is subject to the preventive financial control does not meet the conditions of lawfulness, regularity and compliance with the budgetary credits or commitments credits, limits that are required for granting the preventive financial control visa.

(2) Any visa refusal has to be in all cases motivated in writing.

(3) The persons who are entitled to exercise the preventive financial control visa are bound to keep the evidence of the operation projects for which the preventive financial control visa was refused.

 

Article 21

Authorising the operations for which the preventive financial control visa was refused

 

(1) An operation for which the preventive financial control visa was refused can be carried out by the credit ordonnator on its own responsibility, only if by this the approved budgetary commitment is not exceeded. The credit ordonnator may decide the carrying out of the operation only based on an internal decision act in a written form through which he/she can dispose, on his/her own responsibility, the carrying out of the operation.  A copy of internal decision act will be sent to the public internal audit compartment of the public entity, as well as to the delegated controller, from case to case.    

(2) In all cases in which, as a result of the preventive financial control visa refusal, the managers of the legal persons order that, in the conditions of the present ordinance, the operation be carried out on their own responsibility, the person appointed to perform the own preventive financial control has the duty to inform, in writing, the Romania’s Court of Accounts, the Ministry of Public Finance  and, as the case may be, the superior body of the public institution, only in this case this person being exonerate by the responsibility.

(3) For the operations also submitted to the delegated preventive financial control exercised by the Ministry of Public Finance, the own preventive financial control visa refusal makes that the operation project cannot be submitted to the delegated preventive financial control. In such conditions, the credit ordonnator will solicit to the delegated controller a consultative opinion. The credit ordonnator will analyse the delegated controller’s point of view expressed in the consultative opinion an will decide in the conditions provided at the paragraph (1).

(4) In all the cases in which, as a result of a visa of delegated financial control, the heads of the legal persons dispose, in the conditions provided by the current ordinance, the performing of the operations on their own responsibility, the delegated controller has the duty to inform, in writing, the Court of Accounts and the Ministry of Public Finance.

(5) The documents regarding the operation projects submitted to the preventive financial control, which have not yet been endorsed, can be approved only on the credit ordonnator’s own responsibility.

(6) The operations made on the credit ordonnator’s own responsibility are also recorded in an account out of the balance sheet.

  

CHAPTER III

Common provisions

 

Article 22

Operational measures

 

(1) The Ministry of Public Finance carries out inspections as many times as there are information of some infringements of the lawfulness or regularity in performing the operations, in the sense of the present ordinance.  

(2) The Ministry of Public Finance carries out inspections in all the cases in which is made known by a chief accountant about the performance of operations on the credit ordonnator’s own responsibility, without having the visa of preventive financial control.

(3) The Ministry of Public Finance  will start the inspection in all public institutions, when is informed by the chief of their internal public audit structure about the performance of illegal operations which are bearing the visa of delegated preventive financial control, situation which is resulted from performing an internal audit mission.       

(34) The inspections are carried out by the persons from the structure of the Ministry of Public Finance, based on a internal order issued by the Minister of Public Finance, or by the persons delegated in this sense by the Minister of Public Finance.   

(5) The internal order provided for in paragraph (4) will mandatory precise the purpose and the objectives of the inspection, the person or the persons appointed to carry out the inspection.

(6) The public institutions have the duty to ensure the access of the representatives of the Ministry of Public Finance at all the documents, data and information which are relevant for the purpose and the objectives of the inspections, at the goods which are the object of the controlled operations, as well as in the spaces where these goods, documents and information are found.

(7) The organisation of the inspections and the establishment of the general attributions in their performance are approved by Government Decision, and the detailed attributions, the informational flow and the working methodology are approved by order of the Minister of Public Finance.    

(8) In the case in which, following the inspection, the infringements of the lawfulness which produced damages on public funds or public patrimony are found out, an inspection report will be made. Against the inspection report a complain can be formulated within 15 working days from the date the inspection report has been made known. The complain will be deposed to the structure which formulated the inspection. The complains will be solved by a motivate decision within 30 working days from the date of their registration. The decision is definitive. If, by solving, the complain has been rejected, the inspection report  will become an execution title and will be sent for execution to the fiscal body in whose territorial area the complaining person has the domicile. Against the decision an action can be formulated at the Court of Appeal in whose territorial area the complaining person has the domicile, within 15 working days from its communication, according to the Law no. 29/1990 of administrative litigation, with subsequent modifications.

(9) In the situations in which the performance of some facts qualified by law as contraventions has been found out, a contravention report will be made.               

 

Article 23

Special measures

 

If an agreement, treaty or other such external funding documents provide for specific measures of financial control, the Government is authorised to issue, upon the proposal of the Ministry of Public Finance, decisions that are waivers of this ordinance.

 

Article 24

Dispositions regarding the autonomous regias, State owned trade companies and trade companies which benefit of exclusive or special rights

 

The appointment of the chief accountants of autonomous regias, trade companies where the State or a local public administration authority owns more than 70% from the number of the votes in the Shareholders’ General Meeting and of trade companies which benefit of exclusive or special rights attributed by a public institution is made with the observance of the conditions and unitary criteria approved by order of the Minister of Public Finance. The dismissal, suspension or replacement of chief accountants at these autonomous regias and trade companies will be made only with the approval of the head of public institution in whose coordination the autonomous regias functions, which exercises, in the name of the State or of a local public administration authority, the rights of the shareholder at the trade companies where the State or a local public administration authority owns more than 70% from the number of the votes in the Shareholders’ General Meeting or who attributed to the trade companies exclusive or special rights.           

 

Article 25

The delegated preventive financial control of operations running a high risk

 

By order, the Minister of Public Finance can decide on the performing of delegated preventive control by delegated controllers also on the operations funded or co-financed from public funds,  of other public institutions than those provided for in article 12, paragraph (2) or of private legal persons.

  

Article 26

Miscellaneous Provisions

 

The provisions of this ordinance are also applied to other legal persons than the public institutions, if such legal persons manage public funds under any title and/or manage public patrimony with respect to the management of public funds and of the public patrimony concerned.

  

CHAPTER IV

Contraventions and Sanctions

 

Article 27

Contraventions

 

The following deeds are considered contraventions and are punished, unless they are committed in such conditions as to be considered, under the criminal law, offences:

a) infringement of the obligation to organise, at the level of the public entity, the own preventive financial control and the evidence of the commitments, according to the provisions of article 9, paragraph (1);  

b) failure to comply with the obligation regarding the setting up of the operation projects submitted to the preventive financial control, as well as the failure to keep the evidence of commitments, according to the provisions of article 9, paragraph (2) and (3);

c) presenting for endorsement by the credit ordonnator the operation projects without bearing the visa of preventive financial control;  

d) going beyond the deadline provided for in article 14, paragraphs (2)-(4);

e) non-observance of the provisions of article 17, paragraph (5);

f) issuing a visa refusal without motivation, according to article 20, paragraph (2); 

g) non-observance of provisions of article 21, paragraph (2);

h) non-observance of provisions of article 21, paragraph (5);

i) non-observance of provisions of article 21, paragraph (6).

 

Article 28

Sanctioning the contraventions

 

The contraventions set out in article 27 paragraph a), b), d) - i) are sanctioned with a fine of 30,000,000 ROL to 50,000,000 ROL, while the one set out under paragraphs c) with a fine of 10,000,000 ROL to 20,000,000 ROL.

 

Article 29

Appraisal of contraventions, determination and enforcement of fines, ways of contesting,  updating the level of fines

 

(1) The appraisal of contraventions and the enforcement of sanctions will be made by:

a) the persons having inspection attributions from the Ministry of Public Finance, for the contravention provided for in article 27; 

b) the financial controllers belonging to the Body of Delegated Controllers, for the contravention provided for in the article 27, paragraphs a) and h).

(2) The level of fines provided for in article 28 is updated by Government Decision, depending on the inflation rate.

(3) The fines provided for as sanctions for committing contravention set out in article 27 can be enforced both on natural and legal persons.

(4) Against the contravention report of finding out the contraventions and applying the sanctions, drafted according to the competencies established according to paragraph (1), there can be submitted a complain in a period of a maximum 15 days from the date of submitting or communicating the report. The complain, accompanied by the copy of the contravention report, is submitted to the body where the agent is employed, according to the provisions of Government Ordinance no. 2/2001 on the legal regime of contravention, approved with modifications and supplements by the Law no. 180/2002, with subsequent modifications.  The complain, together with the cause file, are immediately forwarded to the law court in whose area the contravention has been made.

  

CHAPTER V

Final an Transitory Provisions

 

Article 30

Employing in the position of delegated controllers of the persons which are employed as financial controllers in the structure of the Court of Accounts

 

(1) The persons who, at the date of publishing the current ordinance, has the position of financial controller within the preventive financial control section of Court of Accounts, has the right to be employed, starting with 1st of January 2000, at his request, in the position of delegated controller, directly at the professional grade which he detains in the structure of Court of Accounts, and without contest, but only if the respective person:

- deposes the request to be employed as delegated controller in the structure of the Ministry of Public Finance, in at most 15 days from the date of publication of the present ordinance;

- is not finding himself in one of the incompatibility situations provided for in article 20;

- has not been sanctioned, on the whole period of time he exercised the function of financial controller in the structure of the Court of Accounts.   

(2) The finalisation of the attributions of the Court of Accounts in the area of preventive financial control, as it is regulated by the provisions of article I, points no. 3,4,10,11 and 21 of the Law no. 99/1999 regarding some measures for speeding-up the economic reform, will become effective starting with the 1st of January 2000.

 

Article 31

Measures for appointing the first chief financial controller and his deputies

 

(1) The appointment of the chief financial controller and his deputies, according to the provisions of the article 19 paragraph (6) will be done until February 29, 2000, but not earlier than January 31, 2000.

(2) By the date of the enforcement of the provisions of paragraph (1), the chief financial controller’s attributions are exercised by a person empowered with this purpose by order of the Minister of Public Finance.  

 

Article 32

Exceptional measures

 

In order to ensure the preventive financial control on the operations of public institutions and units which have the quality of Implementing Agency, according to the Financing Memoranda concluded by the Government of Romania with the European Commission, as well as with the operations of National Fund, the Minister of Public Finance appoints a delegated controller for each Implementing Agency and for National Fund.

 

 

Article 33

Measures for preparing the enforcement of the present ordinance

 

The Ministry of Public Finance initiates and co-ordinates the necessary measures for preparing the enforcement of the present ordinance; with this view, the Minister of Public Finance issues orders and, as the case may be, proposes to the Government, in order to be approved, Government Decisions drafts.

 

Article 34

Entering into force

 

The present ordinance enters into force starting with 1st of January 2000, with the following exceptions:

a) the provisions of the art. 15, 16, 18, 19 paragraph (1), (2) and (5), art. 30 and 33, which enters into force from the date of publication;

b) the provisions of the art. 31 paragraph (2) and article 32, which will enter into force in 30 days from the date of publication.

 

Article 35

Repeals

 

At the date of entering into force of the present ordinance, the art. 2, art. 5 paragraph a), as well as other provisions regarding the public institutions from the Law No. 30/1991 regarding the organization and functioning of the financial control and Financial Guard, published in Romania's Official Gazette, Part I, No. 64/March 27, 1991, are repealed.