Rule · CNMV · 31 Dec 2020
The Spanish Government issued Royal Decree-Law 36/2020 to establish urgent measures for modernizing public administration and facilitating the execution of the Recovery, Transformation and Resilience Plan. The decree creates a new governance structure, including a High-Level Commission and Technical Committee, while introducing flexible public-private collaboration instruments known as PERTES. It also simplifies administrative procedures, expands budgetary flexibility, and mandates a single digital portal to ensure the efficient absorption of European Recovery Instrument funds.
OFFICIAL STATE BULLETIN
No. 341 Thursday, December 31, 2020 Sec. I. Page 126733
I. GENERAL PROVISIONS
HEAD OF STATE
17340 Royal Decree-Law 36/2020, of December 30, approving urgent measures for the modernization of the Public Administration and for the execution of the Recovery, Transformation and Resilience Plan.
I
Following the declaration by the World Health Organization of the international pandemic caused by COVID-19 on March 11 and the rapid spread of this disease, both nationally and internationally, the Member States of the European Union quickly adopted coordinated emergency measures to protect the health of the citizenry and prevent the collapse of the economy.
These measures, aimed at acting on factors influencing the spread, and which are extending over time as a result of the second wave of the pandemic, are having a drastic economic and social impact on all countries of the European Union, motivating the need to react quickly and adopt urgent and decisive measures with the objective of mitigating the impact of this unprecedented crisis, and promoting the prompt economic recovery, laying the foundations for growth in the coming decades. The European Council of July 21, 2020, aware of the need at this historical moment for an unprecedented effort and an innovative approach that promotes convergence, resilience, and transformation in the European Union, agreed on a package of far-reaching measures. These measures combine the reinforced multiannual financial framework (MFF) for 2021-2027 and the launch of a European Recovery Instrument ("Next Generation EU") valued at 750,000 million euros in constant 2018 prices. This European Recovery Instrument, which will involve approximately 140,000 million euros for Spain in the form of grants and loans for the period 2021-26, is based on three pillars:
OFFICIAL STATE BULLETIN
No. 341 Thursday, December 31, 2020 Sec. I. Page 126734 cve: BOE-A-2020-17340 Verifiable at https://www.boe.es
OFFICIAL STATE BULLETIN
No. 341 Thursday, December 31, 2020 Sec. I. Page 126735 functioning and intervention of Public Administrations, focused on achieving effective implementation and the achievement of objectives linked to the projects assigned within the framework of the Recovery, Transformation and Resilience Plan, highlighting for their importance in the absorption of funds the principles of strategic planning and management by objectives, and the principles of agility, speed, simplicity, and clarity in procedures, processes, and task execution. In this title, a list of management guidelines and coordination guidelines is also incorporated, which are focused on achieving the generation of synergies between the administrative bodies responsible for the management of funds, favoring innovative mechanisms such as multidisciplinary teams, technical forums, and working groups, maximizing resource availability, promoting the use of new information technologies in the management of the Recovery, Transformation and Resilience Plan, and finally, providing the Administration with the capacity to evaluate developed actions, identify deviations, and adopt corrections. III In Title II, a series of general scope measures are collected to achieve a Public Administration that has 21st-century instruments to be able to fulfill its functions in an effective, strategic, and objective-based manner for the best public service to citizens. In this sense, and in parallel with the approval of this regulation, the draft law of the General State Budgets for the year 2021 is in process, which should be highlighted as essential in the modernization reform undertaken insofar as this regulation recovers the figure of state agencies as a public body, allowing the reintroduction into the Public Administration of an organizational formula endowed with a higher level of autonomy and flexibility in management, which has mechanisms for effectiveness control, and which promotes a culture of accountability for results. A model that has an organizational and functional approach and an underlying philosophy of management directed towards the fulfillment of objectives that have been previously fixed in a concrete and evaluable manner. IV The second chapter of Title II is dedicated to the simplification of the processing of administrative agreements, with development in the second final provision, which collects the structural modifications carried out in Law 40/2015, of October 1, on the Legal Regime of the Public Sector. The systematization of the legal framework and the typology of administrative agreements in Law 40/2015, of October 1, on the Legal Regime of the Public Sector, involved the incorporation of a greater number of controls and an excess of mandatory procedures to achieve greater legal guarantee of their adaptation to their regulatory framework, but has in certain cases represented a certain limit to their use as an instrument to articulate collaboration between Public Administrations,
public bodies and entities of public law linked or dependent, and subjects of private law. One of the advantages that the use of agreements may imply in the management of the European Recovery Instrument is the ability to allow actions required to fulfill the purposes of general interest to be articulated through entities that collaborate with the Administration, whose procedures are much more agile. In the proposed reform of the legal regime of administrative agreements, the aim has been to provide their processing with greater agility, eliminating those diligences that are possible. cve: BOE-A-2020-17340 Verifiable at https://www.boe.es
OFFICIAL STATE BULLETIN
No. 341 Thursday, December 31, 2020 Sec. I. Page 126736 Furthermore, the advance processing of agreement files that will be executed in the following fiscal year or other subsequent years is allowed, potentially reaching the formalization phase, provided that payment is delayed until the following fiscal year.
The possibility of receiving advances for preparatory operations that are necessary to carry out the financed actions is also foreseen, up to a limit of fifty percent of the total amount to be received.
Finally, the maximum duration of administrative agreements has been extended to adapt it to the temporal needs implied by the projects of the European Recovery Instrument.
V
In Chapter III of Title II, a new figure of public-private collaboration is collected: Strategic Projects for Economic Recovery and Transformation (PERTES). Given the multiplier effect that implies in the economy a mobilization of resources of this dimension, public-private collaboration will be key for the execution of the various leading projects contemplated in the Recovery, Transformation and Resilience Plan, it being necessary to adapt the regulatory framework of public-private collaboration instruments to formulas that, maintaining Community controls and requirements, allow for more flexible and adaptive formulas to the requirements of projects financeable with the European Recovery Instrument. This new figure is created with a view to permanence, to include in our legal system new instruments of public-private collaboration that allow for agile management, although its application is especially interesting in the scope of the Recovery, Transformation and Resilience Plan since with it it is intended to reinforce those projects included in it that clearly contribute to economic growth, employment, and the competitiveness of our country, correcting the market failure of underinvestment when private initiatives do not materialize due to significant risks and the necessary public-private collaboration that this type of project entails. These are projects of a strategic nature, with significant potential for spillover to the rest of the economy, and which require collaboration between Administrations, companies, and research centers to achieve scaling of their operations in our country. This category, which seeks to reflect at the national level the important projects of common European interest, will encompass leading projects with a structural transformative impact on strategic sectors or with phases of disruptive and ambitious research and innovation, beyond the state of the art in the sector, followed by an initial industrial deployment. The magnitude of the risks associated with these projects, and the need for collaboration at different levels for the channeling of funds and the creation of synergies, calls for a differentiated figure to proceed with their support and allow them to scale their operations. For the adequate monitoring of this category, the State Registry of Entities Interested in Strategic Projects for Economic Recovery and Transformation will be launched, dependent on the Ministry of Finance. Given the urgency for the establishment of its functioning and structure, for these purposes, the royal decree-law introduces a specific authorization for the holder of said Ministry to create and put into operation the aforementioned Registry. The formalization and legal instrumentality of PERTES will be carried out in accordance with applicable legislation, respecting in any case the principles of concurrence, non-discrimination, and competition of markets. VI The Recovery, Transformation and Resilience Plan is a country project,
which requires the involvement of all economic and social agents, all levels of government, and the entirety of the resources of the public administration. cve: BOE-A-2020-17340 Verifiable at https://www.boe.es
OFFICIAL STATE BULLETIN
No. 341 Thursday, December 31, 2020 Sec. I. Page 126737 The effectiveness of the Plan, in the context of the urgency derived from the current situation, will depend on having agile execution and control instruments, as well as a governance that guarantees transparency, coherence of actions, and their continuity over time.
Therefore, governance bodies are created that guarantee a participatory process that incorporates the proposals of the main economic, social, and political agents and at the same time serve as the necessary mechanisms for coordination with the different levels of administration.
A Commission for Recovery, Transformation and Resilience is created, presided over by the President of the Government. Likewise, a Technical Committee is created to support this Commission.
The Sectoral Conference of the Recovery, Transformation and Resilience Plan is created, with the autonomous communities and cities, presided over by the holder of the Ministry of Finance, with the objective of channeling the multi-level territorial governance typical of the Spanish system of the State of Autonomies and to establish mechanisms and channels of cooperation and coordination in the implementation of the Plan.
Finally, the collaboration between the Government and the rest of the actors involved in the execution of the Plan will be fluid and regular. For this, high-level forums and councils are created with the main sectors involved in the plan.
For the execution of the Plan, the human, material, and organizational capacities of the competent directing center of the Ministry of Finance (currently the Directorate of European Funds) will be strengthened, through an adequate structure and the adoption of necessary administrative measures. This structure will be designated as the authority responsible before European institutions for accountability and control of the mechanisms of the European Recovery Instrument. VII Public administrations, just as they have been doing throughout the democratic stage, are addressing a continuous process of modernization to adapt to the social and political changes that are occurring. In the 20th century, Public Administrations successfully addressed the great transformations of the 80s with the implementation of the pillars of the Welfare State in Spain or the transformation of the territorial organization model, the absorption of structural funds and the Cohesion Fund for the transformation of the Spanish productive model in the 90s, within the framework of the European construction process. In this century, they have had to face, demonstrate resilience, and continue providing services to citizens in the face of the devastating effects of the Great Recession or the lack of succession in their staff. The management and execution of projects linked to the Recovery, Transformation and Resilience Plan represent a challenge and an opportunity. Certain units will see their workload multiplied in the coming years and public administrations will have to face this challenge with limited resources. For this, a strategic reflection on organization, processes, personnel management, and digitalization is imposed. Flexible solutions in terms of means and organization have been included in this royal decree-law so that the management of the Plan is addressed in an effective manner to empower the administration for a successful execution and absorption of funds safeguarding the general interest. VIII Regarding the means for digitalization and the use of new information technologies as instruments of public management of the Recovery, Resilience and Transformation Plan, the creation of a single web portal for the Recovery, Transformation and Resilience Plan is foreseen as an instrument capable ofcve: BOE-A-2020-17340 Verifiable at https://www.boe.es
OFFICIAL STATE BULLETIN
No. 341 Thursday, December 31, 2020 Sec. I. Page 126738 centralizing and channeling the distribution of all information about it intended for the different interested parties and agents related to it.
This portal would serve as the "single window" of the Plan, facilitating requests and the processing of procedures for interested parties, as a formal point of contact with the Administration.
Finally, it is foreseen that the single web portal of the Recovery, Transformation and Resilience Plan may offer a service of attention to persons or entities interested in participating in calls derived from the European Recovery Instrument, and above all to serve as a point and source of information for all public and private actors regarding the plan and its implementation means.
IX
In Title IV, the management specialties of the Recovery, Transformation and Resilience Plan are collected, starting with Chapter I, which collects the specialties in matters of budgetary management and control.
It is proposed to increase the number of fiscal years and authorize the acquisition of expenditure commitments that must be attended in subsequent exercises, up to the maximum provided for by European regulations for the execution of financed projects, given that most of the files for the implementation of the recovery plan will be affected by exceeding the limits of initial credits.
The possibility is foreseen that orders for the closure of the expenditure budget and non-budgetary operations may have differentiated deadlines for credits linked to the management of these funds, in order to modulate the budgetary calendar in these cases. Likewise, the assumption of multiannual commitments is flexibilized.
The incorporation of credit balances, which cover expenditure commitments contracted, is allowed, without these being deducted from the credits of the following exercise and thereby increasing the available credits for the fulfillment of agreed milestones and targets, facilitating the obtaining of reimbursements from the Commission.
The possibility of proceeding with the advance processing of expenditure files of subsequent exercises linked to budgetary modifications is established, potentially formalizing the expenditure commitment, for any type of file financed with funds from the Recovery and Resilience Facility.
The possibility of making advance payments of committed funds, prior to the execution and justification of the services provided for in this type of business, is flexibilized, potentially reaching up to fifty percent of the total amount to be received.
Competencies are assigned to authorize transfers and budgetary variations between credits linked to the Recovery, Transformation and Resilience Plan consigned in their expenditure budgets to the holders of Ministerial Departments and to the Presidents or Directors of Autonomous Bodies and the rest of entities of the state administrative public sector with limiting budgets.
The rules of expenditure management provided for funds from the Recovery Plan that must be transferred are flexibilized.
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“The systematization of the legal framework and the typology of administrative agreements in Law 40/2015, of October 1, on the Legal Regime of the Public Sector, involved the incorporation of a greater number of controls”
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