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Law 12/1995, Of 11 May, Incompatibilities Of Members Of The Government Of The Nation And Of The High Charges Of The General Administration Of The State.

Original Language Title: Ley 12/1995, de 11 de mayo, de incompatibilidades de los miembros del Gobierno de la Nación y de los Altos Cargos de la Administración General del Estado.

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TEXT

JOHN CARLOS I

KING OF SPAIN

To all who present it and understand it.

Sabed: That the General Courts have approved and I come to sanction the following Law.

EXPLANATORY STATEMENT

The regime of incompatibilities of high charges is generally collected in Law 25/1983 of 26 December, as amended by Law 9/1991 of 22 March.

This legislation was created to guarantee the independence and impartiality of the high positions in the exercise of their functions, and in this sense it signified a great advance towards the effective functioning of the Administration.

However, the 92nd Resolution of the Congress of Deputies, adopted in debate by the State of the Nation, urged the government to promote a reform of the legislation on incompatibilities of high positions, improving the System of penalties for failure to comply with the obligations to declare in the Register of Interests relating to activities and property assets, strengthening the control functions of the General Inspection of Administration Services Public.

On the other hand, a modern administration requires that loyalty to the public service be one of the great demands of the high positions in the performance of their posts.

For all of which, it becomes necessary to establish a new regime of incompatibilities that regulates in a complete way this matter.

Its purpose is to regulate the regime of incompatibility of activities and control of interests applicable to the members of the Government of the Nation, to the Secretaries of State and to the high positions of the General Administration of the State and entities governed by public law which are linked or dependent on that public right.

It also delimits the subjects of the norm with a different technique to the previous legislation, since it uses objective criteria for the definition of the high office.

As a general principle, absolute incompatibility with any public or private activity, whether paid or not, is enshrined, enabling the exercise of certain activities, logically excepted by not affecting the dedication of the high office or its independence.

Two Records are constituted, one of the Activities, in which the senior officials will make statements of the activities they perform, as well as of those that they will carry out after their cessation. The other, of Property and Property Rights, where they will have to declare the assets and property rights that they hold, securities and marketable financial assets, societarian interests, etc.

These Records are managed by the General Administration of Public Administration Services that will be responsible for remembering and, where appropriate, requiring those who are appointed or who cease to be in a high position, the fulfillment of their obligations. The Government, through the General Inspectorate of Public Administration Services, will forward to the Congress of Deputies information every six months, from the fulfillment of the obligations to declare the high charges.

Finally, a complete sanctioning regime is established, with the classification of infractions and sanctions, the harshness of which is aimed at ensuring compliance with the obligations of independence and impartiality by the high charges in the performance of their duties.

TITLE I

General provisions

Article 1. Object and scope of application.

1. This Law regulates the regime of incompatibility of activities and control of interests applicable to members of the Government of the Nation, to the Secretaries of State and to the rest of the high positions of the General Administration of the State and the entities governed by public law linked to or dependent on that.

2. For the purposes of this Law they are considered, as high charges:

(a) The members of the Government and Secretaries of State.

(b) The Undersecretaries; the Secretaries-General; the Government Delegates in the Autonomous Communities, in Ceuta and Melilla and in the Islands; the Government Delegates in public law entities; the Governors and Civil Subgovernors; the Directors-General and the Heads of Permanent Diplomatic Mission, as well as the Heads of Permanent Representation to International Organizations.

(c) The Director-General of the Public Ente Radiotelevisión Española; the President, the Directors and the Secretary-General of the Nuclear Security Council; the Presidents, the Directors-General, the Executive Directors, the Technical or Department Directors and the holders of other posts or similar charges, whatever their name, in entities governed by public law which are linked or dependent on the General Administration of the State, whose appointment is made by decision of the Council of Ministers or by its own governing bodies and, in any case, the Presidents and Directors-General of the Management Entities and the Common Services of Social Security.

(d) The President of the Court of Defense of the Competition and the Vocals of the Competition.

e) The President and Directors-General of the Official Credit Institute.

(f) The Presidents of the commercial companies in which the capital is mostly state participation when they are appointed after the agreement of the Council of Ministers or by their own governing bodies.

g) The members of the Cabinet of the Presidency of the Government and of the Vice-Presidency appointed by agreement of the Council of Ministers, the Directors of the Ministers of Ministers, the Secretaries of State and the Delegates of the Government in the Autonomous Communities.

(h) Also, the holders of any other post of the General Administration of the State, whatever their name, whose appointment is made by decision of the Council of Ministers.

Article 2. General principles.

1. The high charges falling within the scope of this Law shall carry out their duties with absolute dedication and shall not be able to reconcile their activity with the performance, in itself, or by replacement or seizure, of any other post, charge, representation, profession or activity, whether public or private, self-employed or otherwise, and shall also not be able to receive any other remuneration from the budgets of the general government or entities linked or dependent on them, or any other perception directly or indirectly comes from a private activity.

The provisions of the preceding paragraph are without prejudice to the exceptions set out in Articles 3 and 4.

2. Holders of senior positions may not, by themselves or together with their dependent spouse and dependent children, have a share of more than ten per cent in undertakings holding concerts or contracts of any kind with the sector state, regional or local public.

In the event that the person who is appointed to hold a post within the meaning of Article 1 of this Law, has a participation in the terms referred to in the preceding paragraph, he/she shall be required to within one month from the day following his appointment. If the shareholding is acquired by hereditary succession during the exercise of the office, it will have to divest it within three months of its acquisition.

Such participation and subsequent transmission shall also be declared to the Register of Property and Property Rights in the form that it is regulated.

3. Those who have a high office are obliged to take part in the knowledge of cases in whose office they have intervened or which are of interest to undertakings or companies in whose direction, advice or administration they have had a part. them, their spouse or family member within the second civil degree. The inhibition shall be in writing for proper expression and constancy, and shall be notified to the immediate superior of the high office or organ that designated it.

4. During the two years following the date of their termination, the senior officials may not engage in private activities relating to files on which they have issued a decision in the exercise of the office, or to conclude contracts for technical assistance, services or similar to public administrations.

In addition, and with the exception of persons provided for in Article 1.2.f), those who receive remuneration, compensation or any other kind of compensatory benefit as a result of their cessation may not intervene in private activities directly related to the responsibilities of the occupied office. This obligation shall not be extinguished by the waiver of the economic benefit.

Persons who have performed any of the high charges falling within the scope of this Law shall, during the period laid down in the preceding paragraph, direct the Registry of Activities established in this Law. Law a communication about the activity that they will perform. The scope and content of the aforementioned communication will be determined.

TITLE II

Activity Regime

Article 3. Compatibility with public activities.

1. The exercise of the functions of a high office shall be compatible with the following public activities:

(a) to carry out those positions which correspond to them on an institutional basis or for which they are designated by their own condition.

(b) The status of president, member or secretary of collective organs of public administrations, when they are required to perform such duties on the basis of the charge.

c) The development of temporary missions of representation to other States, or to international organizations or conferences.

d) The representation of the General Administration of the State in the Collegiate Organs, Directors or Board of Directors of bodies or companies with public capital or entities governed by public law. No more than two Boards of Directors of such bodies, undertakings or entities may belong.

In the event that there are reasons to justify it, and by means of a reasoned decision, the Council of Ministers may exceptionally authorize the membership of a third and successive Boards of Directors, no amount may be collected for assistance.

2. The members of the Government and the Secretaries of State will be able to reconcile their activities with that of the Deputy or Senator of the General Courts.

3. In the cases provided for in the preceding paragraphs, the senior officials may not receive any remuneration except for the expenses of travel expenses, stays and transfers that correspond to them in accordance with the current regulations, as well as as, the amounts in respect of assistance in the cases referred to in paragraphs (b) and (d). The amounts due for any concept that do not have to be received will be entered directly by the agency, entity or company in the Public Treasury.

Article 4. Compatibility with private activities.

The exercise of a position of high office shall be compatible with the following private activities, provided that with its exercise the impartiality or independence of the high office in the exercise of its function is not compromised:

(a) The mere administration of personal or family assets.

b) The activities of literary, artistic, scientific or technical production and creation, and publications derived from them, as well as collaboration and occasional assistance as rapporteur for congresses, seminars, work, conferences or courses of a professional nature, provided that they are not the result of a relationship of employment or of the provision of services or are a result of strict compliance with their duties.

c) Participation in cultural or charitable entities that are not for profit and provided that they do not receive any kind of remuneration or perception for such participation.

TITLE III

Obligations of High Charges

Article 5. Statement of activities.

1. The High Charges are obliged to make a statement of the activities which they perform on their own or by way of replacement or seizure and, in accordance with the provisions of Article 2, those which they intend to carry out once they have ceased to performance of the charges, in the Register of High Charges Activities referred to in Article 8 of this Law, in the terms that are regulated.

2. The declaration referred to in the preceding number shall be made in the period of three months following the date of the taking of possession and the cessation, respectively, in the high office, as well as each time the person concerned initiates a new activity, of which they are the subject of regulation in this Law.

3. The competent administrative body referred to in Article 9 shall examine the declaration and, if it considers formal defects, require the person concerned to be remedied.

Article 6. Declaration of goods and rights.

1. Those who have the status of a high office are obliged to make in the Register constituted in the competent body, according to this Law, in the terms that they regulate, a patrimonial declaration, understanding of the totality of their assets, rights and obligations. Voluntarily, your spouse will be able to make this statement, which will be provided by the high office.

The estate declaration shall comprise at least the following:

(a) The assets, rights and property obligations that they hold.

(b) marketable financial assets or securities.

(c) Societal interests.

(d) The social object of the companies of any class in which they have interests.

(e) the participating companies for which they are the subject of a declaration under paragraph (c) with the indication of their respective social objects.

2. The declaration referred to in paragraph 1 of this Article shall be made in the period of three months following the date of the taking of the holding and the end of the period, respectively, in the high office, as well as each year between 15 June and 15 July.

3. A copy of the last tax return corresponding to the Income Tax of the Physical Persons and to the Extraordinary Tax on the Heritage that has been made shall be accompanied by the initial declarations and the declarations made annually. the obligation to file the declarant with the tax administration. The voluntary declaration of the spouse referred to in these taxes may also be provided. Such declarations shall be deposited in the Register as supplementary information, subject to their specific rules.

4. The Register of Property Rights and Property Rights will receive the statements and copies and, if you appreciate any formal defects, will require your subhealing to the person concerned.

Article 7. Control and management of securities and financial assets.

1. Persons falling within the scope of this Act, who have regulatory, supervisory or supervisory powers over commercial companies, which issue securities and other marketable financial assets in an organised market and in relation to with those who are holders such persons, their spouses not legally separated or their minor children not emancipated, they shall hire for the management and administration of such securities or assets to a financial institution registered in the National Securities Market Commission. The management fee shall be maintained for the duration of the performance of the charge and in the two years after the end of the charge.

The entity with which they engage in the administration, subject only to the general guidelines on profitability and risk established in the contract, without being able to obtain or receive investment instructions from those concerned. The composition of their investments may not be disclosed either, except in the case of institutions for collective investment or for reasons justified by the authorization of the National Securities Market Commission.

Without prejudice to the responsibilities of the parties concerned, the entity's failure to comply with the obligations identified shall be considered to be a very serious infringement for the purposes of the sanctioning regime which, as a financial institution, is applicable.

2. The interested parties will submit copies of the contracts entered into the Register of Assets and Heritage of High Charges for their entry and the National Securities Market Commission.

TITLE IV

Management, surveillance and control organs

Article 8. Records.

1. The Records established in this Law will be installed in a documentary management system that guarantees the unalterability and permanence of their data, as well as the high security in the access and use thereof.

2. The Register of Activities of High Charges will be public in nature, governed by the provisions of the Organic Law 5/1992, of October 29, of regulation of the Automated Treatment of Personal Data; in article 37 of the Law 30/1992, of December 26, of the Legal Regime of the Public Administrations and of the Common Administrative Procedure; in this Law, and in the corresponding norms of development of the laws cited.

3. The Registration of Goods and Heritage of High Charges has a reserved character and can only be accessed in the form established in this article. The access to the declarations made to it, as provided for in Article 6.1, shall be made on the basis of a request for a declaration of the high office for which the data are to be recorded.

They can access the Register of Goods and Heritage of the High Charges:

(a) The General Courts, in accordance with the provisions of the Regulations of the Chambers.

b) Judicial organs for the instruction or resolution of processes that require knowledge of the data in the Register, in accordance with the provisions of the procedural laws.

(c) The Ministry of Fiscal Affairs, when carrying out investigative activities in the exercise of its functions that require the knowledge of the data in the Register.

d) The Ombudsman in the terms of his Organic Law.

4. The staff who provide services in the registers have a permanent duty to keep the data and information they know for the reason of their work secret.

Article 9. Management body.

1. The authority responsible for the management of the system of incompatibilities of high positions referred to in this Law is the General Inspection of Services of the Public Administration. This body shall be responsible for recalling and, where appropriate, requiring those appointed or terminated in a high capacity to comply with the obligations referred to in Articles 5.1, 6.1 and 7.2 of this Law.

2. The content and scope of the provisions set out in the preceding paragraph shall be developed.

Article 10. Information to the Congress of Deputies.

To ensure the transparency of the control of the incompatibilities regime provided for in this Law, and without prejudice to the competences that are attributed to the administrative authorities indicated, the Government, through the Inspection General of Public Administration Services, will forward to the Congress of Deputies information every six months of the fulfillment of the obligations to declare for the high charges, as well as of the infractions that have been committed in relation to the law and the sanctions imposed on it.

TITLE V

sanctioning power

Article 11. Infringements.

1. For the purposes of this Act, very serious infringements are considered:

(a) Failure to comply with the rules of incompatibilities referred to in Article 2 where there has been manifest damage to the General Administration of the State.

b) The untruth of the data and documents that must be presented in accordance with the provisions of this Law.

c) Failure to comply with the obligations referred to in Article 7 in relation to the management of securities when there has been damage to the General Administration of the State.

2. Serious violations are considered:

(a) Failure to comply with the rules of incompatibility referred to in Article 2.

b) The falsehood or omission of the data and documents that must be filed in accordance with the provisions of this Law.

c) The non-declaration of activities and property in the corresponding records, after the warning for this.

(d) Failure to comply with the obligations referred to in Article 7 in relation to the management of stock exchange securities where, in accordance with the provisions of the preceding Article, it does not constitute a very serious breach.

e) The commission of two minor infractions in the one-year period.

3. It is considered a minor infringement:

The non-declaration of activities and/or property assets in the corresponding records, within the time limits set, when it is remedied following the requirement that the effect is formulated.

Article 12. Sanctions.

1. Very serious and serious infractions will be sanctioned with the declaration and publication of the breach of the Act and the publication of this statement in the "Official State Bulletin".

2. Minor faults will be sanctioned with admonition for non-compliance with the Law.

3. Irrespective of the penalties imposed on them, the offenders must, where appropriate, return the amounts wrongly received, in the form that is established in a regulated manner.

4. The provisions of this Law shall be without prejudice to the requirement of the other responsibilities to be held. For these purposes, when indications of other responsibilities appear, the Directorate-General of the Legal Service of the State shall be instructed to exercise the appropriate actions.

If the violations could be a criminal offence, the Administration will pass the blame to the State Attorney General and will refrain from following the procedure while the judicial authority does not dictate a resolution. putting an end to the criminal proceedings.

Article 13. Impossibility of holding high positions.

1. Those who have been the subject of a declaration and publication of the non-compliance with this Law may not be appointed to occupy positions, of those related to Article 1, for a period of three to ten years, if the non-compliance is qualified. as a very serious infringement, or, up to three years, if it was a serious infringement.

2. At the graduation of the measure provided for in the preceding paragraph, the existence of damages for the public interest, the impact of the conduct on the administered and, where appropriate, the undue perception of amounts by the performance of the incompatible public activities.

Article 14. Proceedings prior to the sanctioning procedure.

1. The General Inspectorate of Public Administration Services prior to the initiation of any criminal case may carry out prior actions of a reserved nature in order to determine whether or not circumstances exist. justify such initiation.

The start of the performances will be notified to the interested party.

2. The General Inspectorate of Public Administration Services will also be aware of the allegations that the alleged breaches of this Law could be made.

3. Files, files or registers of a public nature and, in particular, those of the tax administrations and the managing entities and common services of social security shall provide the General Inspection of Administration Services Public, when required, information, data and collaboration in the form established in the Organic Law of regulating the automated processing of personal data.

4. Once prior information has been made, the General Inspectorate of Public Administration Services shall submit to the bodies referred to in Article 16.1 the report of the previous actions carried out.

Article 15. Sanctioning procedure.

The sanctioning procedure will be governed by the provisions of Royal Decree 1398/1993 of 4 August, which approves the Rules of Procedure for the exercise of sanctioning powers, except in the specific to the same.

Article 16. Competent bodies of the sanctioning procedure.

1. The competent body for the opening when the high positions have the status of a member of the Government of the Nation or of Secretary of State shall be the Council of Ministers, at the proposal of the Minister for the Public Administrations.

In the other cases the authority responsible for the opening will be the Minister for Public Administrations.

2. The examination of the relevant files shall be carried out by the General Inspection of Public Administration Services.

3. It is up to the Council of Ministers to impose sanctions for very serious misconduct and, in any case, when the high office has the status of a member of the Government or Secretary of State. The imposition of penalties for serious misconduct lies with the Minister for Public Administrations. The penalty for minor faults shall be the responsibility of the Secretary of State for Public Administrations.

For the imposition of sanctions, the file will be accessed according to the previous section.

Article 17. Limitation of infringements and penalties.

The regime of limitation of the infringements and penalties provided for in this Law will be the one established in Title IX of Law 30/1992, of 26 November, of the Legal Regime of Public Administrations and of the Procedure Joint Administrative.

Additional disposition first. Subsistence of incompatibilities.

The precepts contained in this Law shall apply without prejudice to the express subsistence of the incompatibilities or obligations established for certain high positions in the special nature of their duties.

Additional provision second. System of incompatibilities of the Banco de España.

The Governor, Deputy Governor and members of the Board of Directors of the Bank of Spain, as well as the Secretary and the Directors-General, will be governed, as far as the system of incompatibilities is concerned, so as to establish its rules The law of the Court of Justice of the European Court of Justice of the European Union

Additional provision third. Obligation to communicate the appointments.

1. Entities governed by public law and commercial companies must inform the General Inspectorate of Public Administration Services of the appointments they make in respect of those posts which are in accordance with this Law. condition of high charges.

2. Public or private entities or undertakings with representation of the public sector in their Boards of Directors shall communicate to the General Inspection of Public Administration Services the designations they make to their Board of Directors. Administration or governing bodies in persons who, in accordance with the provisions of this Law, have the status of a high office.

Additional provision fourth.

A new paragraph is incorporated into article 31.1 of Law 30/1984 of 2 August of Measures for the Reform of the Civil Service, with the following wording:

" n) The breach by the personnel providing services in the Records of Activities and Goods and the Rights of the Permanent Duty to keep the data and information known for its reasons in secret The Law of Incompatibilities of the members of the Government of the Nation and the High Charges of the General Administration of the State. "

Single transient arrangement. Model declarations.

Until the models of declarations referred to in this Law are approved, the current ones will continue to remain.

Single repeal provision. Regulatory repeal.

Law 25/1983, of 26 December, of Incompatibilities of Altos Cargos, as amended by Law 9/1991 of 22 March, is repealed, as well as all the provisions of equal or lower rank that are contrary to the provisions of the Law.

Final disposition first. Application and development faculty

1. The Government is authorised in the framework of its powers to dictate how many provisions the application and the development of this Law will require.

2. The obligations set out in this Law will apply from its entry into force.

The Government will have four months to count from the day following the publication of this Law in the "Official Gazette of the State," to dictate the regulatory norms required for the implementation and development of this Law. Once the new model declarations are published, the high charges that have already been completed according to the models in force above will have a period of three months, to be updated in accordance with the provisions of this Law and its regulatory development.

Final disposition second. Entry into force.

This Law shall enter into force on the day following that of its publication in the "Official Gazette of the State".

Therefore,

I command all Spaniards, individuals and authorities to keep and keep this Law.

Madrid, 11 May 1995.

JOHN CARLOS R.

The President of the Government,

FELIPE GONZÁLEZ MARQUEZ