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Law No. 61 Of 10 May 2011 On The Organization And Functioning Of Fight Against Fraud Department - Dlaf

Original Language Title:  LEGE nr. 61 din 10 mai 2011 privind organizarea şi funcţionarea Departamentului pentru lupta antifraudă - DLAF

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LEGE no. 61 61 of 10 May 2011 (* updated *) on the organisation and functioning of the Anti-Fraud-DLC ((updated until 1 February 2014 *)
ISSUER PARLIAMENT




--------- *) The updated form of this normative act until February 1, 2014 is carried out by the legal department of S.C. "Territorial Center of Electronic Computing" S.A. Piatra-Neamt by including all the changes and additions made by: LAW no. 255 255 of 19 July 2013 . The content of this act is not an official document, being intended to inform users The Romanian Parliament adopts this law + Chapter I General provisions + Article 1 The Department for Anti-Fraud-DLAF, hereinafter referred to as the Department, is organized as a structure with legal personality within the working apparatus of the Government, in the coordination of the Prime Minister, financed from the state budget through budget of the General Secretariat of Government. + Article 2 (1) The Department ensures, supports and coordinates, as the case may be, the fulfilment of Romania's obligations regarding the protection of the financial interests of the European Union, in accordance with 325 the Treaty on the Functioning of the European Union (2) The Department is the contact institution with the European Anti-Fraud Office-OLAF of the European Commission. (3) In carrying out its duties, according to the law, the Department acts on the basis of functional and decision-making autonomy, independently of other public authorities and institutions. + Article 3 Within the meaning of this law, the following expressions have the following meanings: a) European funds-amounts from the general budget of the European Union or from budgets administered by it on its behalf; b) own resources-amounts provided in art. 2 2 of Council Decision no. 2007 2007 /436/EC , Euratom of 7 June 2007 on the system of own resources of the European Communities, published in the Official Journal of the European Union no. L 163 of 23 June 2007. + Chapter II Organization and management of the + Article 4 (1) The Department is headed by a Head, with the rank of Secretary of State, appointed by decision of the Prime Minister, for a period of 5 years, tertiary authorising officer. (2) Head of the Department must meet the following conditions: a) have a professional experience of at least 5 years in fields of activity that fall within the competence of the Department; b) not to exercise other public or private functions, except for teachers, during the term of office; c) have no mention in the criminal record; d) not to be a member of any political party during the term of office. (3) The mandate of the Head of the Department a) on expiry of the duration b) by resignation; c) by death; d) by revocation, in case of impossibility to exercise the mandate, consisting of an unavailability longer than 120 consecutive days or in the case of sending to trial for criminal acts incompatible with the position held. + Article 5 (1) The head of the Department represents the Department in relations with public authorities, public institutions, legal and physical persons in the country and abroad. (2) The head of the Department shall not request or receive instructions from any authority, institution or person in carrying out his/her duties regarding the triggering and carrying out of controls or the preparation and valorization of the control (3) The head of the Department participates in meetings of the Government and of the councils and inter-ministerial groups when the agenda concerns the protection of the European Union's financial interests in Romania + Article 6 (1) In the exercise of his powers, the head of the Department shall issue orders and instructions. (2) The orders and instructions of a normative nature shall be published in the Official Gazette of Romania, Part I. + Chapter III Department of competence and powers + Article 7 In application of art. 2, Department performs the following functions: a) the function of coordinating the anti-fraud fight, in order to ensure effective and equivalent protection of the financial interests of the European Union in Romania; b) the control function, in order to identify irregularities, fraud and other illicit activities affecting the financial interests of the European Union in Romania; c) the regulatory function, which ensures the elaboration of the normative and institutional framework necessary to ensure the protection of the financial interests of the European Union in Romania; d) the function of representation, which ensures the participation of Romania in the advisory committees, working groups and communication networks or information exchange, in the matter of the protection of the financial interests of the European Union. + Article 8 In carrying out its functions, the Department performs the following main duties a) ensure and facilitate cooperation between national institutions involved in the protection of the financial interests of the European Union in Romania, between them and the European Anti-Fraud Office-OLAF and the relevant public authorities of the others Member States of the European Union or of States receiving financial assistance from the European Union; b) carry out or coordinate control actions in order to identify irregularities, fraud and other illicit activities in connection with the management, obtaining and use of European funds and related co-financing, and any other funds that fall within the scope of the European Union's financial interests, including loans and guarantees granted by the European Investment Bank; c) carry out or coordinate control actions in order to identify irregularities, fraud and other illicit activities affecting the financial interests of the European Union in Romania by illegally reducing their own resources; d) collect, analyze and process data and carry out statistical research in the field of protection of the financial interests of the European Union in Romania; e) initiates or endorses draft normative acts on the protection of the financial interests of the European Union in Romania; f) develop and coordinate training programs and training in the field of anti-fraud; g) settle applications for administrative assistance, as a central unit, according to international cooperation agreements, aimed at protecting the financial interests of the European Union in which Romania is a party; h) ensures, coordinates and monitors the reporting of irregularities between national institutions and the European Commission in accordance with the provisions of European legislation. + Article 9 (1) The Department receives the referrals of the European Anti-Fraud Office-OLAF or other sources or shall be notified ex officio about possible irregularities, fraud or other activities affecting the financial interests of the European Union in Romania. (2) The way of settling the referrals is brought to the attention of the institution/person who formulated the complaint. + Article 10 (1) The department has the status of finding body, within the meaning of art. 61 of the Code of Criminal Procedure, regarding the facts that may constitute crimes affecting the financial interests of the European Union in Romania. (2) The Department may, at the request of the prosecutor, carry out controls on compliance with the legal provisions in the matter of protecting the financial interests of the --------- Article 10 has been amended by art. 97 of LAW no. 255 255 of 19 July 2013 published in MONITORUL OFFICIAL no. 515 515 of 14 August 2013. + Article 11 (1) In the exercise of the control function, the Department carries out administrative investigations, on-the-spot checks, analyses and documentary checks. (2) In the framework of carrying out the control actions, within the meaning of the duties provided 8 lit. b) and c): a) all institutions and public authorities, economic operators with state or private capital, any other entity, as well as individuals are obliged to allow the representatives of the Department access to premises, on land, in means of transport or other premises used for economic purposes; b) The Department requests all institutions and public authorities, economic operators with state or private capital, any other entities, as well as individuals the documents and information necessary to draw up the control act. In case of a temporary impossibility motivated in their supply, the persons provided have the obligation that within 10 days from the receipt of the request to give its course; c) the representatives of the Department shall take statements from any person who may provide data and information on possible irregularities, fraud or other activities affecting the financial interests of the European Union. (3) The Department shall draw up acts of control which may constitute means of proof, under the conditions of the Code of Criminal Procedure, republished, with subsequent amendments and completions. (4) The control acts drawn up by the Department are not acts or administrative operations in the sense of Law of Administrative Litigation no. 554/2004 , with subsequent amendments and completions. + Article 12 (1) In order to clarify certain aspects that are subject to a control action, the Department may request the financial and fiscal control bodies, specialized bodies of the central public administration or public institutions subordinated to the Government or ministries with competent administrative control powers to carry out checks and controls in their field of activity. (2) When drawing up the control act, the Department may use the acts of the bodies and institutions referred to in ((1). (3) At the request of the Department, the police, gendarmerie or other agents of the public force shall be obliged to provide support to the control team in the exercise of their duties. + Article 13 ((1) In case of identification of irregularities concerning the obtaining or use of European funds, as well as the related co-financing funds, the Department shall transmit the control act to the competent authorities in the management of funds their obligations in the matter of reporting irregularities and financial recovery, according to the law. (2) The authorities provided in par. (1) have the obligation to communicate, within 60 days from the date of receipt of the control act of the Department, the measures taken to remedy the aspects reported by it, as well as the actions taken to recover any damage. + Article 14 ((1) In case of identification of irregularities regarding the management of European funds, the Department shall transmit the control act to the relevant ministries in order to take the necessary measures to remedy the deficiencies found and, as the case may be, to sanctioning the responsible persons, informing the Prime Minister. (2) The relevant ministries shall inform the Department, within 60 days, of the measures taken to remedy the issues raised by the control act and, as the case may be, to the sanctions ordered. + Article 15 (1) In case of identification of irregularities resulting in the illegal diminution of own resources, the Department shall transmit the control act to the authority responsible for establishing and collecting them. (2) The authorities provided in par. (1) informs the Department, within 60 days, of the measures taken to remedy the issues raised and, as the case may be, the recovery of the amounts due. + Article 16 In case of finding elements of a criminal nature, the Department notifies the competent prosecutor's office to carry out the prosecution and conveys the act of control in order to recover the damage and hold persons criminally liable Guilty. + Article 17 (1) In order to carry out the duties provided for in 8 lit. a) and d), all authorities with competence in the management of European funds, in the establishment, collection and control of resources to be transferred to the general budget of the European Union are required to submit to the Department, within 15 days, the data and information requested. (2) In order to fulfill the attribution provided in art. 8 lit. g), the competent authorities and institutions have the obligation to submit to the Department the information requested for the settlement of administrative assistance requests, according to their obligations under international cooperation agreements on the protection of the financial interests of the European Union in which Romania is a party. + Chapter IV Sanctions + Article 18 It constitutes contravention the refusal of natural or legal persons to make available, within the stipulated period, the documents and information necessary for the preparation of the control act, requested by the representatives of the Department, according to art. 11 11 para. ((2) lit. b). + Article 19 (1) The contraventia provided in art. 18 is sanctioned with a fine of 500 lei to 5,000 lei. (2) The finding of the contravention provided in art. 18 and the application of the sanction shall be made by the authorized persons of the Department. ((3) Contraventions provided for in art. 18 the provisions of Government Ordinance no. 2/2001 on the legal regime of contraventions, approved with amendments and additions by Law no. 180/2002 , with subsequent amendments and completions. + Chapter V Status of the civil servant of the Department + Article 20 (1) The personnel required to carry out the activity of the Department shall be made up of civil servants with special status and (2) The inclusion of personnel, modification, suspension, termination of service relations, respectively of employment relations shall be approved by order of the head of the Department. + Article 21 (1) The special status of the public official of the Department is conferred by the nature of the specific tasks regarding the protection of the financial interests of the European Union in Romania, in order to fulfill the obligations according to art. 325 the Treaty on the Functioning of the European Union (2) The official of the Department performs a function of public interest, with a special status conferred by the duties, responsibilities, complexity, risks and prohibitions arising from the application of this law, as well as from other acts normative regarding the organization and functioning of the Department (3) Without prejudice to the provisions of par. (2), in the exercise of his duties, the civil servant with special status within the Department cannot be subject to any restriction or pressure of any nature and benefits from stability in office. + Article 22 (1) After the level of the duties, the specific public functions within the Department shall be divided into: A. Specific public management functions: a) Director; b) Deputy Director; c) Head of service; d) Head office. B. Specific public functions of execution: a) counselor; b) specialist reviewer; c) referent. (2) Public execution functions are structured on the professional degrees provided for in art. 15 15 of Law no. 188/1999 on the Statute of civil servants, republished, with subsequent amendments and completions. ((3) The validity in the specialty of the studies required to fill the public management or execution functions shall be that provided for in art. 57 57 of Law no. 188/1999 , republished, with subsequent amendments and completions. (4) The activity carried out by civil servants with special status within the Department, as well as the one carried out by the councillors within it, until the entry into force of this law, graduates of faculties with profile legal, constitutes seniority in legal specialty. + Article 23 (1) The recruitment of civil servants with special status and the occupation of management positions within the Department shall be done by competition or examination, as the case may be, in compliance with Law no. 188/1999 , republished, with subsequent amendments and completions. (2) The organization and conduct of competitions or exams provided in par. (1) is carried out by order of the Head of the Department, based on the proposals By this order, the head of the Department can also establish other specific conditions, without restricting the rights and freedoms of citizens and without any discrimination. ((3) Promotion in the professional ranks provided in art. 22 is based on the annual evaluation and the seniority in the specialty. + Article 24 The individual professional performance obtained in the work of the special status civil servant of the Department is assessed annually, in accordance with the methodology for evaluating the individual professional performance of the staff in The Department + Article 25 (1) The rights and duties of the civil servant with special status within the Department are those provided for in Law no. 188/1999 , republished, with subsequent amendments and completions. (2) Public servants with special status within the Department are prohibited: a) to be part of political parties, organizations to which the same legal regime is applicable as political parties or from foundations or associations operating in addition to political parties; b) to publicly express their opinion on the ongoing control actions; c) to give consultations to the entity subject to control; d) to provide consultancy in the field of activity of the Department; e) allow the use of the functions they perform for commercial advertising, advertising or propaganda of any kind or acquisition of money, goods or other undue benefits for them or for other persons; f) to express personal opinions on national or European issues, in relations with representatives of other states; g) to use the official position they hold or the relationships they have established in the exercise of public office, in order to influence internal or external investigations or to determine the taking of a certain measure. (3) The Special Staff Regulations of the Department shall have the following specific obligations: a) outside the specific duties of the service, is obliged to adopt a proactive attitude, including by bringing to the attention of the management of the Department of any situation, facts or circumstances in the field of protection of financial interests of European Union in Romania; b) to refrain from any act, act or manifestation likely to prejudice the financial interests of the European Union in Romania; c) outside the specific duties of the service, the civil servant with special status within the Department who is part of the controls coordination teams shall be obliged not to prejudice the rights of the coordinated personnel; d) preserve the confidentiality of the information acquired in the exercise of professional duties for a period of 3 years after the termination of the service; e) to promote, as a representative of the institution, a favorable image of the country and the Department within any activities carried out outside Romania, in the field of protection of the financial interests of the European Union; f) have a conduct corresponding to the protocol rules and comply with the laws and customs of the host country, in the case of external movements; g) if they are part of joint control teams with representatives of the OLAF European Anti-Fraud Office, they are obliged to provide the full support for the smooth running of the control mission and to refrain from expressing their opinion on the legal qualification of the findings, if they are not appropriated by the Head of the Department; h) to ensure that the reports of irregularities and fraud transmitted to the European Anti-Fraud Office-OLAF comply with the requirements laid down in the European Union regulations in the field. + Article 26 By order of the head of the Department the Code of ethical and professional conduct of personnel is approved + Article 27 Civil servants with special status respond contraventionally, civil and criminal, under the law. + Chapter VI Final provisions + Article 28 (1) The salary of the personnel of the Department shall be made in accordance with the normative acts regarding the salary of the personnel paid from public funds and benefit from Law no. 490/2004 on the financial stimulation of staff managing Community funds, with subsequent amendments and completions. (2) The organizational structure, the duties of the personnel, the maximum number of posts and the manual of procedures of the Department shall be established by the organization and functioning regulations of the Department, approved by Government decision. + Article 29 The Department can benefit from the European Union for technical assistance and equipment, as well as specific training programmes for staff. + Article 30 On the date of entry into force of this Law, the personnel assigned to the Department shall be duly taken up and reinstated to the functions of this normative act. + Article 31 The provisions of this Law shall be supplemented Law no. 188/1999 , republished, with subsequent amendments and completions, as well as with other normative acts in force applicable to the public official. + Article 32 The date of entry into force of this Law shall be repealed: a) art. 6-13 ^ 1 of Government Emergency Ordinance no. 49/2005 on the establishment of reorganization measures within the central public administration, published in the Official Gazette of Romania, Part I, no. 517 of 17 June 2005, approved with amendments by Law no. 411/2005 , with subsequent amendments and completions; b) Decision of the Prime Minister no. 205/2007 on the organization and functioning of the Department for Anti-Fraud-DLAF, published in the Official Gazette of Romania, Part I, no. 511 511 of 31 July 2007, as amended. This law was adopted by the Romanian Parliament, in compliance with the provisions of art. 75 75 and art. 76 76 para. (2) of the Romanian Constitution, republished. p. CHAMBER OF DEPUTIES PRESIDENT, IOAN OLTEAN SENATE PRESIDENT MIRCEA-DAN GEOANA Bucharest, May 10, 2011. No. 61. ---------