CONCLUSIONS OF THE OPINION: Directive 2019/1937 and regulatory compliance. Procurement fraud, money laundering and administrative and criminal liability. The Directive introduces new offences, new exemptions and also new aggravating circumstances.
FIRST.- Directive 2019/1937 consolidates previous European legislation with a view to protecting the Union itself, which seeks to erode any possible attempt at corruption. Lack of transparency encourages corruption and corruption destroys, first the rule of law and finally the Union.
SECOND.- The new generation of European rules makes it clear that privileges, capacities and exclusions are disappearing. There are no “AFORADOS”. Nor are there different jurisdictions (civil, commercial, criminal, etc.). Everything is a single jurisdiction that aims to serve the citizen and in doing so, to protect the Union.
THIRD.- The recognition of the right of access to documents as a fundamental right of the individual, a right which forms part of the inalienable rights of European citizenship, requires that the regulatory framework, in this case Regulation (EC) No 1049/2001, be interpreted in the most favourable way for citizens, in accordance with the principles and values of a democratic society.
FOURTH.- As regards the active subjective scope, the right of access may be exercised by any natural or legal person, public or private, irrespective of whether they belong to a Member State or not, and it is not necessary to justify the reasons or grounds for requesting the information in question.
FIFTH.- In other words, a new channel of transparency is being considered that would allow a document held by a state’s administration, through the Union, to be requested whenever this affects Union law (a matter published in its directives and regulations). The figure for doing so is the Complaints Channel investigator established by Directive 2019/1937.
SIXTH.- The complainant has gone from being an enemy to a protected actor, although he/she is not recognized as an interested party in the proceedings initiated as a result of his/her complaint, and therefore does not have the right of access to the documentation contained therein, nor does he/she have the right to appeal against the decisions of the investigator to close the case, but he/she has a much more powerful weapon, namely, he/she can choose the channel through which his/her complaint can be processed.
SEVENTH.- Citizens, interested parties, whether organized or not, and other persons and bodies who do not have access to review procedures under Directive 89/665/EEC do have a legitimate interest, as taxpayers, in proper procurement procedures.
EIGHTH.- The interests and legal assets protected by the Directive are given concrete form in a new, essential and much more specific legal asset such as “the freedom, security and compensation of the informant (who is no longer a complainant)”.
NINTH.- As for the ACTIVE SUBJECTS of the crime, they will be all those who, directly or indirectly, through intermediaries, carry out the so-called RETALIATIONS (OBJECTIVE TYPE), whether or not the person concerned (or reported, according to the Directive: natural or legal person referred to in the complaint or public disclosure as the person to whom the infringement is attributed or with whom the infringement is associated).
TENTH.- THE STATES WILL SAFEGUARD, that is to say, they will pass on the obligation that the channels of complaints cannot have (technical) leaks and that the persons who manage them or authorized personnel are in compliance with the law (attention since they may be preferential subjects of the crime).
