Supreme Audit Office of the Union

The power of the modern state is separated into the legislative, executive and judicial power in theory. It is true on principle, the state of today however has also other institutions available that cannot unambiguously be classified within the mentioned three powers. This is also true about an institution whose function is to inspect (to audit) economic administration of the state and its parts; it is sometimes labeled as the fourth audit power. It is beyond doubt that the future European federation too cannot do without this component of the state power. There are usually not many provisions about a audit body in constitutions of the European states, neither the European federation's constitution needs to be an exception; but I consider to be necessary that at least two thing are included in the constitution's text – a way of staffing and its powers.

A question how the people who inspect state institutions get in their positions can be answered after the answer to the question about essence of this office. Existence of a supervisory institution itself is a logical expression of the principle that nobody will control himself or at least not objectively. There is an element of compulsion in necessity to let to be audited and the superior audit office so stands against everyone in a way. This its position demands that it is as independent on the inspected institutions as possible. In the European states officials of the supreme audit institutions are usually appointed in their positions by the parliament, sometimes by the government or the president. It in itself needs not to be an obstacle to independence of audit office but this tie may arouse some doubts sometimes after all whether it will proceed towards all state institutions equally resolutely. It is also suitable to realize that relations among individual state institutions despite theoretically good separation of powers are in reality influenced by existence of a factor which constitutions not much deal with, namely political parties. In my opinion the audit office of the European federation should be more than an information agency, it should be the real fourth state power, independent on the three other ones. A conclusion follows from it for me that its establishment should be independent on three other powers, not derived from them, although the main essence of its independence should ground in its powers. By the way, it is striking that everyone regards as self-evident that democracy works in the way that the people only elects deputies of the parliament and the other constituents of the state are established already without participation of the people. If the people should have at least some control how those who are supposed to manage its matters administer funds, direct election is more suitable than if political groups themselves assure who will inspect them.

If there is a demand for direct election of officials of the European federal audit office, its internal structure must be discussed simultaneously because it will be dependent on it who actually should be elected. All auditing stuff naturally in view of its number (hundreds of them) cannot be elected, the election therefore can only apply to a board with competencies to decide. Here a question emerges whether the European federal audit office should have a collective or one-person management. I believe that it is the most advantageous for citizens if only a president of the office endowed with powers corresponding to that fact is directly elected and he (she) himself appoints other members of the management. The president should be elected according to the same rules as the members of the Council of Chancellors and the President of the Supreme Court. As for the term of mandate of the president, I adhere to the practice of the Court of Auditors of the present European Union. It is useful (and in accord with real practice) to establish audit departments branch-oriented according to objects of the audit inside the office and heads of these departments are who I mean as the superior management and who should be appointed by the president of the office. Appointment of other stuff of the departments can be in the hands of their heads but with final approval of the president. As for decision-making, I believe that the president of the office on the basis of his direct mandate from the citizens should be entrusted with all significant competencies (besides administration of the office itself and its representation externally those are to establish the audit plan and to approve audit reports) and the heads of the departments should be a consultative body for his decision-making.

In order that the audit office of the European federation deserves its label of fourth state power its competencies have to correspond to it, especially if it is (in decisive regard) directly elected. What is therefore necessary is wide range of inspected institutions, independence at auditing activity and first of all, enforceability of remedy of imperfections if they were detected.

Among institutions whose fund managing should be inspected must be above all the Assembly of the Union, the Council of Chancellors and the Supreme Court which are the supreme constitutional bodies, besides them also all offices exercising a role of ministries or specialized administrative offices (as for example a statistical office) as well as all public institutions which are entirely or for the most part paid by the Union (as for example science institutions). Also the member states and their autonomous parts as well as private subjects must be inspected if they obtained financial resources from the Union. The army in all its units must not be absent from the list of inspected institutions and not at all economic enterprises. Funds management of the Central Bank of the Union and the Federal Investment Bank (about these later) must also come under audit, at the Central Bank also issue of money and securities. Conclusion of the list of inspected items is then formed by implementation of the state budget of the Union, the state final account and awarding public contracts (on the part of the Union).

To deal with an outcome of the audit is a very important part of the inspect process and I want to diverge from the usual practice here. Supreme audit state bodies are usually formed as a kind of detective agencies assignment of which is to submit reports to other authorities of the state power. An audit report is naturally submitted to a inspected body and to a superior body too which should organize rectification in the case that imperfections were detected; in addition to that the audit office submits a report about its activity at times (once in the year). A danger threatens however that the work of the audit office will be devalued by that a state body within which power is to accomplish rectification of detected imperfections or to punish guilty persons does not accomplish rectification and does not punish the guilty persons, especially when a “political interest” will be in it. It is amazing that the politicians do not dare to disregard reports of their audit office in some European states but this certainly is not true in all Europe; and in general, organization of the state cannot be built on unconditional trust in kindness of people. My opinion is that people must be compelled to proper behaviour sometimes and it proceeds from it that I want to give a possibility to the audit office of the European federation to at least partially enforce rectification of its negative findings. But not directly, I want to observe separation of powers and tasks to some extent. It is for example not autotelic that the court decides about guilt and punishment but cannot bring a charge, it is not autotelic as well that the parliament adopts laws but not executes them. It is not appropriate as well that the audit office finds out wrong funds management or even a peculation and itself secures a remedy. But what I consider as necessary is that it has the right generally to order rectification of detected defects to competence authorities (the concrete form of rectification will be a thing of the competent authority) and to control whether rectification was accomplished and whether it meets the purpose. Besides that, it is my intention to give a power to the audit office of the European federation to bring accusations to the federal courts against persons responsible for negligent funds management, for peculation and similar imperfections and offences if they were detected at inspection and also competent authorities for not accomplishing remedy measures. Only if the audit office has coercive powers it is with certainty taken seriously by everybody and it will so justifiably join the three main parts of the state power.

There is a question in the end whether the audit body itself should be uninspected. That is naturally not possible, the audit office therefore must be subjected to the inspection too and the Assembly of the Union is the best choice for it.

Supreme Audit Office of the Union

Article 54 – Audit power of the Union

1. The power to exercise audit of public funds management belongs to the Supreme Audit Office of the Union.

2. The Supreme Audit Office of the Union has its seat in the Federal Region of Brussels.

3. The Office is subjected to supervision by the Assembly of the Union.

Article 55 - Composition

1. The Supreme Audit Office of the Union is composed of the President and the High Auditors of the Union. Each High Auditor is the head of an Audit Department; the law stipulates their number and subject jurisdiction.

2. Every citizen of the Union who completed the age of 40 years can be the President of the Supreme Audit Office of the Union or the High Auditor of the Union.

3. The term of mandate of the President and the High Auditor is six years. Nobody can be the President or the High Auditor more than twice.

4. Details are stipulated by the law.

Article 56 – Election and appointment of members of the Supreme Audit Office

1. The President of the Supreme Audit Office of the Union is elected by the citizens of the Union according to provisions of the article 47 of this constitution.

2. The High Auditors of the Union are appointed by the President of the Office. At most two High Auditors can be the citizens of the same member state as the President of the Office.

3. Other staff of the Office are appointed by the President or by High Auditors with approval of the President.

4. The law stipulates details.

Article 57 – Rights and duties of the members of the Supreme Audit Office of the Union

1. The President, the High Auditor or other member of the Office carrying out the direct control activity is not allowed to hold any constitutional or other salaried office of the European Union, of any member state or its autonomous entity, to engage in other paid occupation, to receive any remunerations and to give unpaid consultancy.

2. The member of the Office carrying out the direct control activity may not be prosecuted, restricted in his free movement or arrested unless caught while committing a criminal act.

3. The members of the Office receive a salary paid from means of the Union.

4. The mandate of the High Auditor becomes effective by his appointment. The mandate of the President of the Office becomes effective by his election.

5. The mandate of the President of the Office and the High Auditor expires by

(a) expiration of the term of mandate,

(b) resignation,

(c) death,

(d) exercise of an incompatible function,

(e) sentence for a deliberate offence.

6. The law stipulates details.

Article 58 – The President of the Office

1. The President of the Supreme Audit Office of the Union

(a) administers the Office and represents it externally,

(b) develops the plan of auditing activities and its changes,

(c) authorizes audit reports,

(d) develops the report on the work of the Office,

(e) brings actions following from the audit reports.

2. The President of the Office making his decisions consults the board of the High Auditors.

Article 59 – Control activity of the Office

1. The Supreme Audit Office of the Union shall audit

(a) the implementation of the State Budget of the Union,

(b) the state final account of the Union,

(c) administration of public funds by every institution stated in this constitution as well as all units of the armed forces of the Union,

(d) funds management of public institutions which are entirely or for the most part paid by the Union,

(e) funds management of the Central Bank of the Union and the Federal Investment Bank and issue of money and securities by the Central Bank,

(f) financial administration of enterprises in exclusive or majority ownership of the Union,

(g) administration of funds by private subjects if they obtained financial resources from the Union,

(h) awarding public contracts by the Union.

2. The audit applies to conformity of fund management with laws and other regulations of the Union and further to thrift, efficiency and expediency.
3. The institutions subjected to the audit have to provide all necessary data irrespective of the type

and degree of their secrecy.

4. The Supreme Audit Office of the Union carries out auditing activities in compliance with its own plan. It does not accept commands from any public institution of the Union or private subjects.

5. Details of course of the audit are stipulated by the law.

Article 60 – Conclusions of the audit

1. The audit report is submitted to the institution subjected to the audit and to a superior institution if possible.

2. To protest to a court against the audit report is admissible.

3. If violation of the law or imperfections are detected the audit report indicates responsible persons. The institution subjected to the audit and the superior institution are invited to take measures which will result in rectification. The institutions accomplishing rectification are obliged to inform the Supreme Audit Office of the Union which measures to rectification were accomplished.

4. The Supreme Audit Office of the Union brings actions for peculation, neglect in administration of public property and other detected imperfections as well as for not accomplishing or unsatisfactory accomplishing rectifications.

5. The law stipulates details.