DEMOCRACY AND ACCOUNTING PRINCIPLES: A (CRITICAL) READING OF THE EPSAS PROJECT FOR A CONSTRUCTIVE DIALOGUE BETWEEN INSTITUTIONS 

Autore: Dott.ssa Monica Bergo

 

 

Table of Contents

I.  Abstract.

II. The Principle of Accountability in the European Accounting System: Directive 85/2011/UE.

III. Eurostat's Proposal to adopt Private Accounting Standards.

A. A First Assessment in light of the Observations of the German Court of Auditors.

IV. Asymmetries between the Declared Objectives and the Results achieved by European Monetary Policies.

A.  The Emblematic Case of Greece.

V.  Conclusions: Transparency and Accountability as an Antidote to Social Expulsions.

 

 

I.  Abstract.

This paper focuses on the European project for the adoption of unified and standardized accounting measures for Member States, in particular analyzing their transparency and accountability[1] profiles, which are considered essential elements for the democratic maintenance of the system.

In this sense, the study of the standardized accounting project at European level – far from being considered a mere study de jure condendo–also encompasses the sensitive, yet significant, issue of the relationship between legal systems, rectius, and between the legal sources of different systems.

For this purpose, as well as to ensure an adequate evaluation of the measures indicated, it is useful to retrace various monetary policy choices adopted in a supranational context during the years of the last economic crisis; in particular, those measures which constrain the Member States by requiring them to follow precise macroeconomic parameters. These measure shave not only strongly affected the governmental powers of economic policy governance, but have also led to unfortunate consequences for a large part of civil society.

 

II. The Principle of Accountability in the European Accounting System: Directive 85/2011/UE.

The recent economic crisis has led to the adoption of a series of measures at both a European and supranational level, which not only affect monetary policy, on which the supranational order is called to exercise its own exclusive competence; but also economic policy, which is ordinarily the domain of Member States.[2]

The measures include financial assistance and stability mechanisms and as well as provisions designed to strengthen the budget discipline of Member States.

The most significant regulatory transformations which occurred during 2011-2012 pertained to financial statements. These regulations were communicated at the European level through the so-called Six Pack (Reg. n. 1173/2011, Reg. n. 1174/2011, Reg. n. 1175/2011, Reg. n. 1176/2011, Dir. n. 85/2011 and Reg. n. 1177/2011). At the international level they were enacted by means of the Treaty on Stability, Coordination and Governance in the Economic and Monetary Union of 2012. Internally in Italy, they were introduced through changes to the Italian Constitution introduced by the Constitutional Law n. 1 of 2012. These were then implemented with law n. 243 of 2012.

Specifically, to verify compliance with rules aimed at avoiding excessive deficits prohibited by Protocol 12 attached to the TUE and by art. 3 of the TFEU, the European Union has prepared a series of regulations aimed at ensuring the uniformity of financial/accounting descriptions of public budgets.

To this end, the EU has issued Directive 85/2011 EU of 08/11/2011 concerning the "Requirements for Member State Budgetary Frameworks." These have been implemented in Italy by Legislative Decree 4 March 2014, n. 54 (Implementation of Directive 85/2011 EU relating to the requirements for budgetary frameworks of Member States).

The European Union's goal is ensuring that Member States maintain public accounting systems that include elements such as recording accounting operations, internal controls, financial reporting, and audit details. These accounting systems may be distinguished both from statistical data, (which pertain to information about public finances based on statistical methodologies), and from budget forecasting or actions, (which are concerned with future public finances).[3]

The aforementioned Directive reveals the European legislature's awareness that statistical data and forecasts or budget formation actions,[4] are distinct from accounting systems. The latter incorporate data through mathematical techniques and then process it on a macroeconomic basis.

The differentiation between the planning profile of budget estimates and the factual assessment of the "final" data object of the statistical analysis should be noted. Additionally, the effects in terms of information deficit deriving from schematic statistical representation are also significant.

From this perspective it is consistent for the Union to state that “the existence of complete and reliable public accounting practices for all sub-sectors of public administration is a prerequisite for the production of high quality statistics that are comparable from one Member State to another.”[5] The hoped-for quality of these calculations is also indirect proof of the discordance between the statistics and the actual results of financial statements.

Therefore, since a purely statistical system entails strong risks of lack of representation and reliability, the aforementioned Directive emphasizes the importance of internal controls which are able to guarantee that European and national rules are applied throughout the sub-sector of public administrations.

To this end, an independent audit is carried out by “public institutions such as the Court of Auditors or by public audit bodies [able to promote] international best practices.”[6]

The content of the Directive makes clear the European Union's desire to make Member States' budgets both reliable and accountable. It also indicates the Union’s awareness that only through adequate instruments and controls is it possible to achieve that desired result.

The European project of introducing standardized accounting principles for the public sector in all Member States is based on these premises.(European Public Sector Accounting Standards - EPSAS).

 

III.  Eurostat’s Proposal to Adopt Private Accounting Standards.

The EPSAS project represents an advanced phase of the process that commenced with the aforementioned Directive 85/2011 EU, through which the European Commission has given a mandate to Eurostat[7] to verify the concrete applicability of International Public Accounting Standards (IPSAS) in the various countries of the European Union. This has been accomplished through the establishment of a special working group, “Task force IPSAS/EPSAS.[8]

The work carried out by the Eurostat Task Force revealed the Commission's intention to strengthen confidence in the financial stability of the European Union and improve budgetary controls by introducing harmonized consistent accounting principles for the public sector at the European Union, thus helping to prevent the onset of future sovereign debt crises.

The stated objective of the Commission is to increase the transparency and comparability of public budgets, through transitioning Member States to adoptcompany-type accounting systems.

The EPSAS should, in fact, align with Anglo-American principles and are designed to be oriented to the financial market and provide investors with useful information for decision-making. They should therefore promote accrual accounting, that is, the economic-patrimonial accounting adopted by for profit companies.[9]

According to the Commission, EPSAS would be the means by which Member States could obtain more reliable data and respond more effectively to the use of public funds. According to forecasts, the administrations of member countries should draw up the first fully EPSAS-based financial statements by 2025.[10]

Eurostat presented a timetable for the development and implementation of EPSAS within ten years starting in 2015. The calendar consists of two phases. In the first phase, a framework regulation will be adopted and the framework and principles governing the EPSAS will be developed. This phase will last five years, or until 2020.

The Commission encourages Member States to adopt an accrual accounting system as early as this period and will also offer financial assistance to states to do so. In the second phase the implementation of EPSAS will become mandatory for all public entities in the Member States. This phase will take another five years and will last until 2025. At the end of 2015, Eurostat recommended that Member States first adopt IPSAS on a voluntary basis, pending the completion of the EPSAS.[11]

 

A.  A First Assessment in Light of the Observations of the German Court of Auditors.

In spite of these proposals, some critical issues remainin respect of this project –the German Court of Auditors has already addressed several of these issues.[12]

These problems require analysis because of their possible impact on transparency and accountability. It is hoped that these reports will enrich the debate and assist in the integration of the EPSAS project.

First, from a procedural point of view, the German Court of Auditors has denounced the democratic legitimacy of the agencies appointed by the European Commission. These agencies are responsible for identifying uniform accounting criteria for the development of EPSAS.[13]

The Commission has in fact commissioned the companies Ernst & Young (E&Y) and Price waterhouse Coopers (PwC) to advise the Working Group on EPSAS and produce ten thematic documents for each year from 2016 onwards, on issues relating to public sector accounting. These documents will initiate and guide the discussions of the Working Group. Addtionally, the consultants also regularly issue recommendations on the formulation of the general accounting principles and on the structure of the discussions.

Although Eurostat pointed out that the thematic documents do not necessarily reflect a joint position, it is not clear whether and to what extent Eurostat takes into account dissenting opinions, critical suggestions, and concerns expressed by Working Group members compared to the thematic documents drawn up by private consultants.

Indeed, the German Court of Auditors reported that “the request of the German Federal Ministry of Finance to create a hierarchy of accounting principles applicable to EPSAS – giving greater importance to the principle of accountability – Eurostat, Ernst & Young and Price waterhouse Coopers they are declared contrary to the German request, giving their support, rather, to the most conformable alignment possible to the original framework of the IPSAS.”[14]

Furthermore, the Commission has failed to demonstrate the concrete capacity of EPSAS to increase the transparency and comparability of financial data, and to strengthen protection against accounting manipulations. The Commission was silent regarding the possibility of adopting alternative solutions in respect of the mandatory introduction of EPSAS. It further failed to provide details on how harmonization will resolve issues related to data quality. In other words, it failed to demonstrate that the proposed approach is really able to solve problems, especially for those States that currently do not consider IPSAS standards in their accounting systems.[15]

From a substantive point of view, various problems related to the criteria that inform EPSAS must also be noted. The most critical aspects include the decision to adopt accounting principles of corporate management for public bodies.[16]

It should be noted that the traditional objectives informing public sector accounts differ from those pursued by a private sector company.

Unlike the accounting of a private sector company, which is generally projected towards the future, public sector accounting – in addition to a preventive profile –also focusses on the past and is mainly aimed at ex post control, since governments must be able to account for the use of public funds. The main purpose of public sector accounting is, therefore, the responsibility of management, through the retrospective control of the use of public funds, as well aspreserving financial stability, intergenerational equity, and comparability.

EPSAS, on the other hand, pursues fundamentally different information goals. Its approach is directed towards the financial market, and aims at presenting the financial conditions of a company, in order to provide investors with all information that might be useful for decision-making.

Notably, under EPSAS’ accounting system, the principle of accountability, along with the principle of fiscal equity – is marginal. Instead, a high level of discretion conditioned by market strategies is the approach that has been adopted.[17]

The German Court of Auditors was able to demonstrate, via simulations, that the introduction of EPSAS would give Member States wide margins of discretion in central matters, such as determining the criteria for calculating tax revenues.[18] For example, EPSAS, would provide Member States with various accounting options to quantify tax revenues.

These practices are diametrically at odds with the goals of the Commission, especially those pertaining to transparency and comparability of the public budgets of Member States.

For these reasons, not only is the Commission’s aspirational mandatory introduction of EPSAS not the most appropriate means to achieve the desired aim of avoiding another sovereign debt crisis in Europe;[19]additionally, it is likely that the process could generate a dangerous diminution of the principle of accountability; specifically, because at the European level, there is no institution that is able to guarantee the transparency and clarity required of financial statements.[20]

As illustrated, these are particularly sensitive issues and if the adoption of new European accounting standards becomes mandatory for member states, it could lead to serious conflicts. These standards, if imposed, could even raise the issue of counter-limits and could even pose a challenge to the fundamental principles of constitutional order, such as that of democracy.

From this perspective, the “no taxation without representation” principle, through which a system’s democratic values are assessed, plays a central role in evaluating the economic policies of sovereign states.

This foundational principle can therefore represent a litmus test and a means of evaluating the impact of supranational and eurounitary measures of an accounting/fiscal nature on the internal systems of Member States.

 

IV. Asymmetries between the Declared Objectives and the Results Achieved by European Monetary Policies

The problems highlighted, which refer to an ongoing project and therefore concern only a limited aspect of Euro-Union policies, may actually be relevant to a large part of the monetary measures adopted at a supranational level. During the recent economic crisis, Europe was inspired by a weltanshauung which has been referred to as “disturbing.”[21] Specifically, the guiding economic-financial values of the period included the the reduction of the spread, the search for the triple 'A', the 'cult' of the gross domestic product and growth, and the reduction of  spending and public debt.[22]

This scenario highlighted the distance of Euro-EU policies, not only from those of individual countries(seeinfra IV. A), but also from classical constitutional values.[23]

From a source of law perspective, if Italian domestic law is compliant with Community law, the latter cannot derogate from or exceed the “supreme principles” of the Italian Constitution(ex plurimis, Constitutional court., sent. n. 284 of 2007).[24]

In accordance with, and for the purposes of, the second proposal of art. 11 of the Constitution, the active participation of Italy in the European Unionis legitimate to the extent only that “the permitted limitations of sovereignty find their correspondence in the powers acquired within the wider Community of which Italy is a part, and within which the process of integration of the States of Europe”(C. cost., sent. n. 183 of1973). This process must therefore take place in compliance with the Constitution, otherwise the the European Treaties would aim at dissolving the constitutional foundation from which they originated by the will of the Member States(C. cost., ord. n. 24 of 2017).[25]

Italy can therefore order that the only limitations of sovereignty “are allowed under the conditions and for the purposes established therein”(C. cost., sent. n. 183 of1973) where the adverb "ivi" indicates "in the provision itself, and therefore in art. 11 Cost."(C. cost., sent. n. 300 of1984). Among these provisions are repudiation of war, the principle of a "level playing field with other states,"[26] and the goal of "peace and [of] justice among nations."[27]

As Luciani effectively commented, “not all European camels can pass through the eye of art. 11 of the Constitution.”[28] The central consideration remains that, “whatever perspective one assumes, it is in the Constitution ... that lies the legitimacy of supranational institutions, not vice versa.”[29]

If the process of European integration deviated to the point of generating disparity or injustice[30] and ultimately became determined by power relations imposed by the market, or resulted in the "brutal domination"[31] of the politically hegemonic state in Europe, the constitutional legitimacy of this process would be irreparably compromised.[32]

Likewise, if the well-being of European citizens is not pursued, the reasons for their "being together" in Europe cease to exist. If this should happen, the same assumptions that gave rise to the Treaty of Rome[33] and, a fortiori, the subsequent and current Treaties, would consequently be undermined.

For the constitutional discipline of the economy to significantly recover,[34] the safeguarding of constitutional identity should perhaps be invoked in all those cases in which reference to the criteria elaborated in a supranational context resulted in one of the following outcomes: If the internal decision-making process was prevented from adopting Keynesian policies,[35] and/or if the relevant definitions (in particular those of 'cycle' and 'structural balance') adopted in the euro-unit area would in the future assume greater rigidity than the current one,[36] there by resulting in a violation of articles 2 and 3, co. 2, Const.

Therefore, it should be noted that the discipline of monetary policy, attributed in the supranational order to an undemocratic institution such as the European Central Bank,[37] could not and should not go beyond the discipline of economic policy. This perogative is the falls within the purview of the Member States and their respective constitutional bodies, which have been democratically legitimized.

Any sign of “unidirectionality”[38] of the European Central Bank (consider the programs of “definitive monetary operations” and “purchase of activities of the public sector on secondary markets”) besides colliding with data inferrable from the Treaties, would risk causing a further removal of economic power from the democratic states. This approach must therefore be opposed.

By way of example, consider a prolonged financial discipline which, year by year, provides for the cutting of public investments. This, especially in a situation of stagnation or a decline in GDP, would lead to a contraction of public policies which should be aimed at directing economic initiatives towards objectives of “security, freedom and human dignity,” (Article 41,second paragraph, Const.); planning and controlling economic activity, so that it addresses “social purposes” (Article 41, third paragraph, Const.). Among these social pruposes are the pursuit of “full employment” (and certainly not fiscal policies that amplify unemployment), pursuant to articles 1 and 4 of the Constitution.

More generally, as recently highlighted, the objective of an ever closer Union among the peoples of Europe, evoked by art. 1, co. 2, TEU, must be reconciled with “the principle of subsidiarity, identity protection, competitive limits and the option to exit.”[39] All of these factors contribute to determining the focal objective of Italy’s participation, as well as that of other Member States in the European Union.

The Treaties permit Member States, both in their areas of competence and through the participation of their representatives in supranational institutions, the“implementation of a multiplicity of socio-economic projects that remain undetermined (or underdetermined) in central aspects.”[40] In this regard, the presence of “internal market derogations so as to take into account national cultural and constitutional diversity[41] indicates respect for the national identity of Member States (Article 4, § 2, TEU) and operates in conjunction with the principles of attribution, subsidiarity and proportionality(art. 5 TUE).[42]

It should also be remembered that under the “Treaty on Stability, Coordination and Governance in the Economic and Monetary Union”, the so called “Fiscal Compact”, ratified by Italy with law n. 114 of 23 July 2012, the Italian legal system has constitutionalized the principle of a balanced budget. This is a far more elastic concept than that of “zero balance”,[43] and this principle represents a grundnorm, which is admissible to address the balance between social and economic needs. Weighing against this are the parameters of 3% of the GDP deficit ratio and 60% of the GDP debt ratio.[44]

Furthermore, the parameters of the Treaty on the Fiscal Compact are not clear since in accordance with art. 16, within five years from the date of entry into force of the Treaty, (i.e. by 1 January, 2018) measures must be taken to incorporate its content into the legal framework of the European Union. These measures must based on an evaluation of the experience gained during the execution of the Treaty itself.[45]

These elements therefore lead us to question the compatibility of the Treaty provisions with the Italian Constitution.

Most recently, there have been several examples of contradiction between the enlargement and the deepening of the process of European integration, especially in its economic dimension, and the guarantee of the democratic prerogatives of European peoples.

The events that took place in the aftermath of the financial/economic crisis revealed that political actors and the various institutional subjects that crowd the European space are sometimes have conflicting interests.[46]

This is a tangible proof, of the trend of the “infamous” spread, given that this indicator expresses not so much the level of economic-financial health of a Member State as such, but rather the gap between the rate of interest in government debt securities of that State and Germany and, therefore, the degree of economic and financial differentiation existing within the European Union.[47]

 

A.  The Emblematic Case of Greece.

The case of the Greek crisis turns out to be somewhat paradigmatic of that “constitutional deconstruction”[48] process that the European Union has imposed on a member country.[49]

Indeed, it has been observed that “the removal by supranational institutions of the outcome of the [Greek] referendum of July 2015 and the ‘counter-movement’ that this event, although ephemeral, has inspired, remains a serious mortgage on every future democratic declination of the supranational order, increasingly perceived and represented, by scholars of different orientation, as an “economic police super-state”, if not as a real ‘barracks’”.[50]

Sassen’s lucid analysis of the euro-unitary response to the Greek crisis makes clear the distance between the objectives of some players in the European space – for example, the European Central Bank – and the real needs of most of the population.

For this purpose, it is useful to retrace a passage taken from Expulsions: “in early January 2013, the European Central Bank said that Greece’s economy was on the pathback to growth, and Moody’s upgraded Greek debt by a point; the country’s rating is still low, but such shifts matter because investor stake them into account. What was left out of these measures showing a return to some growth is that a significant portion of households, enterprises, and places had been expelled from that economic space that was being measured. The expelled become invisible to formal measurements, and thereby their negative drag on growth rates was neutralized.”[51]

In other words, since the beginning of 2013 it has been possible to measure a modest growth of Greek GDP only by excluding from the account everything that was expelled from the space of the economy. The Bank was using a measurement of growth that would claim to relegate to one invisible space (to investors) the increase in poverty, the loss of work and home, the suicides among ruined small business owners; therefore, using an absolutely non transparent method of detection. Apparently “a mere hint of GDP growth can be a positive signal to investors and financial markets, and this is a key achievement from the perspective of current IMF and European Central Bank policy— and not only in the EU.”[52]

According to Sassen, under the banner of the need to reduce the excess of public debt, the excess of social welfare programs, the excesses of regulation would conceal the project to reduce the spending of the States for social services, for small and medium economies of scale in favor of the economic growth of large corporations.

The method adopted for the implementation of this project includes the sacrifice of principles such as transparency and accountability. Indeed, the European Central Bank was able to announce that the Greek economy was on the road to recovery and Moody's was able to raise the rating of Greek public debt by “simply” neglecting to disclose that this recovery was based on the expulsion of about a third of Greek workers not only from jobs, but also from the enjoyment of fundamental services. Thus today Greece is considered by the ECB on the road to recovery precisely through the expulsion of about 30 percent of its former economy.

Among the most worrying effects of the measures imposed on Greece, is the phenomenon of the cd. “Diaspora of the Greeks”– a phenomenon also common to other southern European countries, such as Italy and Spain. It has been authoritatively observed that while, on the one hand, the mobility of young and excellent minds has strengthened the image of a Europe in which there is a high freedom of movement in the labor market, on the other hand this phenomenon has led to a heavy loss for the countries that suffer this “exodus.”[53] First, there is a loss of investment in human capital that does not support national growth; second, a loss of competitiveness, because when the country needs qualified personnel, it is unlikely that it could find subjects at the level of other European or international workers; and third, a loss for politics, because the reformers find themselves with more incentives to leave than those who benefit from the status quo. Bogdandy’s analysis ends with this provocation:“To use the classic exit-and-voice scheme, if a system allows those who want change to exit, it reduces their incentives for voice.”[54]

 

  1. Conclusions: Transparency and Accountability as an Antidote to Social Expulsions.

From this perspective it must be acknowledged that in our legal system the most recent constitutional jurisprudence has shed light on the relationship between accounting measures and the principle of democracy, imposing a paradigm shift in the interpretation of public finance. This move has placed the principle of transparency front and center in accounting records.

With a series of judgments on the new accounting rules and balancing the budget, the courts have reiterated the value of transparency and comparability of financial statements, while acknowledging that different outcomes may arise due to the cases’ different bases.

On various occasions the Court has stated that the financial matter is "alive,"[55] the State is the "guardian" of the enlarged public finances,[56] the budget is a "public good"[57] whose records must be "clear and sincere." It has further noted that balance and coverage are "two sides of the same coin,"[58]recalling the famous Ruinian metaphor on rights and duties.[59] These terms, together with the evocation of principles such as transparency, democracy, responsibility, and the protection of the common good, have acquired a value that is not only symbolic, but substantial, and capable of bringing significant innovations to the overall system of public finance.

In the overall architecture of the rulings referred to above, a pivotal role is assumed by the principle of transparency, defined as “an indefectible element to bring citizens closer to the activity of the Administration.”[60]

The respect for transparency in the accounting records of public bodies – especially with reference to documents related to accounting mandates– fulfills two important functions. First, in respect of accountability, because “it allows the evaluation of the electoral mandate in an objective and informed way.” Second, in respect of the liability of the directors, who are “necessarily aids in the retrospective control of the use of public funds.”[61]

These important notations of constitutional jurisprudence reflect the composite nature of the budget, characterized at the same time by an economic/financial content and a political/legal one.

The latter relates to the disclosure profile of financial statements – which coincides most closely with the “moral statement”[62] – and expresses the social aims and the democratic value of financial rules. These allowa rendering of the account to citizens; in a complementary sense, the economic/financial content (i.e. the cash profile) supports the need for accounting uniformization to which harmonization rules are aimed. The accounting uniformaization rules are, however, characterized by greater technicality and less comprehensibility.[63]

Despite the fact that these two different expository modalities of the budget have different dissemination purposes, conciliatory paths should be taken in order to create a "dialogue" between the mandated and harmonized accounting. The economic-financial phenomenon is unique in this respect, despite different exposure designed for different information purposes.[64]

The important link between the financial provisions of the Constitution[65] is ultimately represented by the ancient – but too often, and especially in the years of the crisis, mistreated principle of democracy which is evoked by the well-known principle“no taxation without representation.”[66]

This Constitutional jurisprudence thus seems to propose a (re)affirmation of the Constitution as a necessary foundation of justification and, at the same time, as an element of evaluation for the limitations of sovereignty allowed for the benefit of "other" systems, such as the supranational one.

To this end, the need for a constitutional order of “assigning a central role to Parliament, recovering the dignity of representation, extending pluralism, broadening the range of subjects and interests that participate in the parliamentary compromise" remains topical,[67] particularly in the concrete determination of the forms and limits of Italy's participation in the European Union.

Consider, for example, the renewed importance assumed by the principle of democracy, not only in the recent rulings of the Italian Constitutional Court,[68] but – even before and probably even more incisively – in the decisions of the German Constitutional Court. These rulings have protected the democratic nature of the system by strengthening the Bundestag's powers of control over the budgetary policies of the European Union.

In the case of two judgments of 2012 (February 28 and September 12) and one of 2014 (March 18), the Bundesverfassungsgericht strengthened the powers of the Bundestag while providing two important statements: 1) that every measure of financial assistance to the member states of the eurozone is approved in advance by the Budget Commission; and 2)that the Bundestag be fully informed as soon as possible about the measures taken outside the framework of the Union. The Bundesverfassungsgericht has thus sanctioned the prohibition of subtracting budgetary and financial decisions from parliamentary verification and at the same time reaffirmed the obligation to submit to the Bundestag for approval every single expense concerning support measures to other States.[69]

It is hoped that also the Italian Parliament will draw inspiration from these “witnesses” to contribute to the fight against social expulsions and, ultimately, against the very marginalization of the system’s democratic heart.

 

Autore: Dott.ssa Monica Bergo, Assegnista di Ricerca in Diritto Costituzionale, Università degli Studi di Padova

 

[1] The concept of accountability is linked to that of transparency. It should be noted that the Anglo-Saxon term "accountability" also refers to a precise concept of responsibility and specifically includes the rendering of the account in a responsible and honest manner with respect to the results obtained, i.e.“When one party must report its activities andtake responsibility for them. It is done to keep them honest and responsible.”Cf. BLACK’S LAWDICTIONARY, Accountability, 2nd ed. With reference then to the use of public resources, accountability takes the form of an obligation that requires a state to respond transparently to not only fiscal but also social responsibilities that are assumed when public funds are used. On transparency in accounting principles, see L. Rizzuto, C. Goretti, La trasparenza informativa nell’attuazione del federalismo scale: aspetti istituzionali tra legge-delega e riforma della legge di contabilità, in Rivista giuridica del Mezzogiorno, 2/2010, at 557-571.

[2] M. Benvenuti, Diritti sociali, Torino, 2013, at 54 ss.

[3] Considerato n. 2 of Directive 2011/85/UE.

[4] Id.

[5] Considerato n. 3 of Directive 2011/85/UE.

[6] In this way, A. Carosi, Il principio di trasparenza nei conti pubblici, in Rivista AIC, 3/2018, p. 841, whore calls that the term “audit”, in the Anglo-Saxon nomenclature from which it comes, is equivalent to our concept of checking the legality-regularity of the accounts, unlike the term control, which, in the same nomenclature, identifies the control of/on management. In the logic of the Directive, this semantic reference means that the reliability of financial-accounting exposures cannot be guarded by the moral suasion of management control, which presupposes an adhesive will of the controlled in order to carry out its positive effects but by verifying compliance with the rules by an independent external body that assumes an intrinsic "certified" value, not subject to the willingness of those who suffer the union to accept its findings and suggestions.

[7] Eurostat is at the head of the working group that will support the Commission and provide it with information, supported by entrepreneurs, independent private institutions and the body responsible for the development of IPSAS (the IPSAS Board). On a formal level, these representatives only enjoy the status of observers. However, it has been observed that in reality they have been considered as real members and have assumed a dominant role in the meetings of the Working Group and in their preparation, an aspect that raises serious problems of transparency and democratic legitimacy. 

[8] Even the State General Accounting Department, which has been following the work of the Board engaged in the elaboration of international accounting principles for the public sector for many years(the IPSAS Board), has become part of the task force.

[9] This is not the place, but the theme of the difference between the accrual accounting of profit-making companies and that adopted by some national States and their administrations is worthy of further study.For some references, see,ex multis, B. Bromwich, I. Lapsley, “Decentralisation and management accounting in central government: Recycling old ideas”, Financial Accountability & Management, 1997, p. 181-201; B. Brorstrom, “Accrual accounting, politics and politicians”,Financial Accountability & Management, 1998, pp. 319-333; A. D. Barton, “Public and private sector accounting - The non-identical twins”, Australian Accounting Review, 1999, p. 22-31; F. Pezzani, L’accountability delle amministrazioni pubbliche, Milano, Egea, 2003; I. Steccolini, Accountability e sistemi informativi negli enti locali. Dal rendiconto al bilancio sociale, Giappichelli, 2004; F.G. Grandis, Le ambiguità nelle riforme dei sistemi contabili pubblici, Roma, Quaderni monografici RIREA, 2006; E. Anessi Pessina, L’evoluzione dei sistemi contabili pubblici. Aspetti critici nella prospettiva aziendale, Egea, 2007; E. Anessi Pessina, I. Steccolini, “Effects on budgetary and accruals accounting coexistence: Evidence from Italian local governments”,Public Budgeting and Finance, 2007, pp. 113-131; M. T. Nardo, Sistemi contabili e bilanci negli enti locali, Franco Angeli, 2008. As well as, with reference to the limits of accrual accounting, A. Pavan, La contabilità di Stato tra necessità di governo e informazione agli elettori, Azienda pubblica, 2/2003; C. Cossiga, Contabilità finanziaria a un occhio solo, Summa 205, settembre 2004; and Id., Manuale di Economia delle aziende e delle amministrazioni pubbliche, EDK, 2005; F. Pezzani, L’evoluzione dei sistemi di contabilità pubblica, in Azienda Pubblica, 4/2005, spec. p. 562.

[10] The EPSAS principles must be developed, at least in a long initial phase, based on the international accounting principles issued by the International Public Sector Accounting Standards Board and currently already the object of direct application in many jurisdictions and supranational contexts, cfr. A. Makaronidis, Il processo di armonizzazione contabile europea e i principi contabili europei per il settore pubblico (EPSAS), Relazione al Convegno L’armonizzazione dei bilanci delle pubbliche amministrazioni nell’Unione europea, Camera dei Deputati, Roma, 12 ottobre 2017, in www.cndcec.it, on the occasion of the presentation of the results of the research promoted by the National Council of Certified Public Accountants (CNDCEC),led by prof. Capalbo on the relationships between economic-patrimonial accounting (accrual accounting) and the quality of the budgets of Italian Municipalities after the reform introduced by Legislative  Decree 118 of 2011.

[11] Cfr. Eurostat, EPSAS Priorities 2015-2016, EPSAS WG 15/03, 4 September 2015.

[12] In accordance with this, see the Bundestag Relation 17/14148 of 26 June 2013, Bundesrat Relation 811/13 of 14 February 2014 and Bundestag Relation 18/4182 of 3 March 2015.

[13] On the influence of lobbies in the European institutions and on the impact for the democratic nature of the system, see R. A. Dahl, A Preface to Democratic Theory, Chicago, 1956; L. Graziano, Lobbying, Pluralismo, Democrazia, Roma, 1995; F. Arcelli, F. Tufarelli (a cura di), Rappresentanza politica e vincoli economici nell’Unione Europea, Catanzaro, 2004; S. Gozi, La Commissione europea: processi decisionali e poteri esecutivi, Bologna, 2005; J. Greenwood, Interest Representation in the European Union, Palgrare Macmillan, 2011; E. Ferioli, L’attività dei gruppi di pressione nell’Unione Europea, in Percorsi Costituzionali, 3, 2012; P. L. Petrillo, Democrazie sotto pressione. Parlamenti e lobbies nel diritto pubblico comparato, Milano, 2011; Id., European Union and pressure groups. A legal perspective, in M. Cartabia, N. Lupo, A. Simoncini (a cura di), Democracy and subsidiarity in the Eu National Parliaments, Regions and Civil Society in the decision-makingprocess, Bologna, 2013.

[14] K. Scheller, Relazione speciale sul progetto di attuazione a livello europeo dei principi contabili armonizzati per il settore pubblico (European Public Sector Accounting Standards - EPSAS), 15 November 2017.

[15] According to a ranking prepared by Price waterhouse Coopers on behalf of Eurostat, on the maturity level of the Member States compared to the IPSAS standards, Italy, Germany, Malta, Luxembourg, Cyprus and Greece rank among the last places with reference to the central government accounts, cfr. A. Makaronidis, Il processo di armonizzazione contabile europea e i principi contabili europei per il settore pubblico (EPSAS),cit., p. 6. It is a very questionable classification, since to effectively evaluate such differentiated accounting systems it would be necessary at least to use objective parameters and the results obtained should be compared with the objectives actually achieved by the accounting systems in force. In other words, the ranking drawn up by the consultancy company on behalf of the client risks being extremely un certain without the possibility of carrying out a comparison with any other appropriately conducted study.

[16] Cfr. C. Gröpl, Auf der Suche nach einer Unionskompetenz zur Einführung von EPSAS in das Haushaltrecht der Mitgliedstaaten, in Hessischer Rechnungshof, Entwicklung der öffentlichen Rechnungslegung in Europa. European Public Sector Accounting Standards (EPSAS), Kommunal-und Schul-verlag, Wiesbaden, 2014, p. 259 ss.

[17] On the relationship between corporate accounting and the tax system, in particular on the influence that the fiscal rules have on company budgets, see the lucid analysis ofK. Ramanna, Political Standards. Corporate Interest, Ideology, and Leadership in the Shaping of Accounting Rules for the Market Economy, 2015, The University of Chicago Press, 2015, who notes that small groups of qualified experts are appointed to define accounting standards, which often have strong commercial interests in the outcome of the assessments, while the general public is generally excluded from involvement in these processes. It is the lack of accountability that encourages managers to manage the entire system. More generally, see also M. Romano, L’attendibilità del bilancio nella prospettiva dell’earnings quality. Alcuni spunti, in T. Onesti, M. Romano, M. Talienti (a cura di), Il bilancio di esercizio nelle imprese. Dal quadro concettuale di riferimento alle nuove regole contabili nazionali e inbternazionali, Giuffrè, 2016, p. 100; S. Azzali(a cura di), Financial reporting and Accounting standards, Giappichelli, Torino, 2017; and, from a different perspective, A. Ballancin, Il regime di imputazione del reddito delle imprese estere controllate, Cedam, “Problemi attuali di diritto tributario, Collana diretta da Franco Gallo”, 2017. It should also be noted that if the harmonization process undertaken in Europe takes place at the level of mere spending flows, no consideration is made in terms of taxation.

[18] R. Gerhards, Öffentliche Finanzkontrollevorneuen Erwartungslücken?, in Verwaltung & Management, n. 1/2017, pp. 41-45.

[19] In this regard it has also been reported that the possession by a Member State of a system of public accounting by cash rather than the adoption of EPSAS does not seem to be decisive for compliance with European tax rules, which are therefore not guaranteed by a specific accounting system, see K. Scheller, Relazione speciale sul progetto di attuazione a livello europeo dei principi contabili armonizzati per il settore pubblico, cit.

[20] Even from a different angle, on the lack of accountability on a financial/accounting level in Europe, the story of stress tests deserves a mention. The European Banking Supervisory Authority (SSM) has in fact entrusted the management and assessment of stress test data to the US company BlackRock, the most important international investor in the banking sector, which is therefore in a position of obvious conflict of interest, così A. Plateroti, Il grande affare degli stress test. Schauble apre il caso in Bce, Il Sole 24 Ore, 19 December 2019.

[21] M. Benvenuti, Democrazia e potere economico, in Rivista AIC, 3/2018, p. 330.

[22] A. Morrone, Teologia economica v. Teologia politica?, in Quad. cost., 2012, p. 831.

[23] M. Benvenuti, Democrazia, cit., p. 329.

[24] The literature in this area is endless, finally, si v. G. Amato, L’integrazione europea come problema costituzionale, in Quad. cost., 3/2018, p. 562.

[25] M. Benvenuti, Democrazia, cit., p. 342.

[26] A. Guazzarotti, Art. 11, in La Costituzione, a cura di F. Clementi et al., Bologna, 2018, I.

[27] M. Benvenuti, Il principio costituzionale del ripudio della guerra, II ed., Napoli, 2010, p. 120.

[28] M. Luciani, Unità nazionale e struttura economia, in Annuario AIC 2011, Napoli, 2014, p. 53.

[29] Idem, pp. 99-100.

[30] S. Gambino, Diritti fondamentali, costituzionalismo e crisi economica, in Diritti sociali e crisi economica, a cura di Id., Torino, 2015, p. 6.

[31] G. Grasso, Le parole della Costituzione e la crisi economico-finanziaria, in A. Pérez Miras et al., Constitucion e integracion europea. Forma politica, gobernanza economica, organizacion territorial, Madrid, 2017, p. 163; aswellas C. Pinelli, La giurisprudenza costituzionale tedesca e le nuove asimmetrie fra i poteri dei parlamenti nazionali dell’eurozona, in Costituzionalismo.it, 2014, I, p. 9-10; A. Guazzarotti, Sovranità e integrazione europea, in Rivista AIC; 2017, III, p. 11.

[32]M. Benvenuti, Democrazia, cit., p. 343.

[33] L. Melica, L’unione incompiuta, Napoli, 2015, note 749, p. 170.

[34] M. Benvenuti, Democrazia, cit., p. 349, where the Authornotes that in this case the art. 41, paragraph 3 of the Constitution would take advantage of the situation, recalling in particular “that intuition that led to qualifying [it] as a retired norm, but ready to reawaken and regain energy when, due to changing historical circumstances, the European design or the principles of the market economy suffered some pause or a real decline”.

[35] O. Chessa, Pareggio strutturale di bilancio, keynesismo e unione monetaria, in Quaderni costituzionali, 2016, note 424, p. 455.

[36] M. Luciani, L’equilibrio di bilancio e i principi fondamentali. La prospettiva del controllo di costituzionalità, in Il principio dell’equilibrio di bilancio secondo la riforma costituzionale del 2012, Atti del seminario svoltosi in Roma, Palazzo della Consulta, 22 novembre 2013, Milano, 2014, p. 30.

[37] C. De Fiores, Europa senza Stato, in Id., L’Europa al bivio, Roma, 2012, p. 161.

[38] A. Manzella et Al., Politica monetaria e politica economica dell’Unione europea, in Astrid rassegna, 2015, XIX, p. 2.

[39] A. von Bogdandy, “European Law Beyond ‘Ever Closer Union’: Repositioning the Concept, its Thrust and the ECJ’s Comparative Methodology”, in European Law Journal, Vol. 22, Issue 4, pp. 519-538, 2016.

[40] C. Kaupa, The Pluralist Character of the European Constitution, Oxford-Portland (OR), 2016, p. 3.

[41] B. Guastaferro, Beyond the Exceptionalism of Constitutional Conflicts, in Yearbook of European Law, 2012, p. 311.

[42] T. Konstadinides, Constitutional Identity as a Shield and as a Sword, in Cambridge Yearbook of European Legal Studies, 2011, p. 218.

[43] Referral to this point is permitted on M. Bergo, Pareggio di bilancio “all’italiana”. Qualche riflessione a margine della legge 24 dicembre 2012, n. 243 attuativa della riforma costituzionale più silenziosa degli ultimi tempi, in Federalismi.it, n. 6/2013 and letterature there in recalled.

[44] The obligation for countries with debt over 60% of GDP to reduce the surplus by one twentieth each year is questionable. The 60% parameter was the average value of the member countries of the Union at the time of its adoption with the Maastricht parameters. Today, after a quarter of a century of European economic policies, the average value has risen up to 90%. Under these conditions it would be reasonable to propose more realistic objectives. The obligation, which must be fulfilled without taking into account possible recessive conditions, risks, in fact, to accentuate them, cfr. L. Tronti, R. Romano, Superare il fiscal compact per riprendere lo sviluppo europeo, in LaStampa.it, 27 February 2018.

[45] The European Parliament and the Council are invited to adopt the proposed incorporation of the Fiscal Compact into the European Union legal order by the first half of 2019.

[46] L. Antonini, Alla ricerca del territorio perduto. Anticorpi nel deserto che avanza, in Rivista AIC, 2/2017, p. 15.

[47] M. Benvenuti, Democrazia e potere economico, cit., p. 344.

[48] A.-I. Marketou, Constitutional-Political Change in Greece during the Crisis, in Federalismi.it, 2016, XXVI, p. 1 ss.

[49] M. Benvenuti, Libertà senza liberazione. Per una critica della ragione costituzionale dell’Unione europea, Napoli, 2016, p. 123 ss.

[50] M. Benvenuti, Democrazia e potere economico, cit., p. 358.

[51] S. Sassen, Brutality and Complexity in the Global Economy 2015, p. 36-37. Some data can help to grasp the drama of the Greek situation: between the end of 2012 and 2015, the Greek government cut the minimum wage in the private sector by 22 percent, abolished permanent jobs in state-owned enterprises and eliminated another 150 thousand jobs in the public sector.

[52] Ibidem, p. 43.

[53] A. von Bogdandy, M. Ioannidis, New Forces for the Greek State, in Verfassungsblog.de, 19 March 2017, «Young persons exit the South more often, and it is the EU that makes such exit easier: indirectly, by reducing barriers to movement, but also directly, by hiring people for European services. From an economic perspective, this is a success: labour mobility and labour market integration are essential components of an optimum currency area and the Eurozone has been lamented for not having enough of those. Yet there are important second-order effects. While the labour market becomes more European, education, public administration and politics remain mainly national. Accordingly, countries like Greece suffer a triple loss. Firstly, their (heavy) investment to human capital does not support domestic growth. Secondly, when they need qualified personnel, it is hard to compete with European and international employers. Thirdly, their politics are distorted because reformists have more incentives to leave than those who benefit from the status quo».

[54] Ibidem.

[55] Sentence n. 247 of 2017, Considerato diritto, 8.5.

[56] Sentence n. 107 of 2016, Considerato diritto, 3.

[57] Sentence n. 184 of 2016, Considerato diritto, 3.

[58] Sentence n. 274 of 2017, «It is good to remember, in fact, that economic coverage of the expenses and balance of the budget are two sides of the same coin, since the balance presupposes that each programmed intervention is supported by the prior identification of the relevant resources: in the constitutionality syndicate, financial coverage and balance integrate "a general clause able to operate even in the absence of interposed norms when the antinomy [with the disputed provisions] directly involves the constitutional precept: in fact" the expansive force of the art. 81, fourth [today third] paragraph, Constitution, supervision of public finance balances, is embodied in a real general clause capable of affecting all normative statements due to disturbing effects on sound financial and accounting management” (sentence n. 192 del 2012)», Sentence n. 184 of 2016, Considerato diritto, 4.

[59] See L. Antonini, Dovere tributario, interesse fiscale e diritti costituzionali, cit., p. 164 ss. where the A. recalls how Meuccio Ruini in the Constituent Assembly declared that "the secret of the article is all here" that is to consider rights and duties as «inseparable sides».

[60] Sentence n. 49 of 2018, Considerato diritto, 3.4. The archetype of this definition is contained in the already mentioned sentence n. 184 of 2016 that deserves to be resumed: «It should be remembered that the budget is a "public good" in the sense that it is functional to synthesize and make certain the choices of the territorial body, both with regard to the acquisition of revenue, and to the identification of the implementation interventions of public policies, a mandatory burden who is called to administer a specific community and to submit to the final judgment relating to the comparison between the planned and the completed.[…]The functional character of the budget and of the subsequent one, whose non-approval, not by chance, the system links the loss of the consensus of democratic representation, presupposes the inseparable characteristics of clarity, significance, specification of policy implementation interventions public». These principles have been resumed, more recently, also in the rulings n. 6 and n. 18 of 2019 in which the Court has called the State to respect the principles of transparency and certainty of financial flows as a guarantee not only of the accountability of public policies but also of intra and inter-generational equity.

[61] Sentence n. 49 of 2018, Considerato diritto, 3.4.

[62] Cfr. A. Carosi, loc. ult. cit.

[63] Asstated in the Constitutional courtsentencen. 184 of 2016: «i moduli standardizzati dell’armonizzazione dei bilanci, i quali devono innanzitutto servire a rendere omogenee, ai fini del consolidamento dei conti e della loro reciproca confrontabilità, le contabilità dell’universo delle pubbliche amministrazioni, così articolato e variegato in relazione alle missioni perseguite, non sono idonei, di per sé, ad illustrare le peculiarità dei programmi, delle loro procedure attuative, dell’organizzazione con cui vengono perseguiti, della rendicontazione di quanto realizzato. Le sofisticate tecniche di standardizzazione, indispensabili per i controlli della finanza pubblica ma caratterizzate dalla difficile accessibilità informativa per il cittadino di media diligenza, devono essere pertanto integrate da esposizioni incisive e divulgative circa il rapporto tra il mandato elettorale e la gestione delle risorse destinate alle pubbliche finalità», Considerato diritto, 3, (underlined by edts).

[64] For a more articulated analysis of the Constitutional courtcase-law, please, see M. Bergo, Coordinamento della finanza pubblica e autonomia territoriale. Tra armonizzazione e accountability, Napoli, 2018.

[65] In this perspective, see also the decision n. 228 of 2017 where the Judges observed that «il contenuto e gli effetti dell’art. 193 del TUEL si ricollegano a un’esigenza sistemica unitaria dell’ordinamento, secondo cui sia la mancata approvazione dei bilanci, sia l’incuria del loro squilibrio strutturale interrompono – in virtù di una presunzione assoluta – il legame fiduciario che caratterizza il mandato elettorale e la rappresentanza democratica degli eletti. La ragione di tale istituto risiede nel principio per cui costituisce presupposto del mandato elettivo la salvaguardia statica e dinamica degli equilibri finanziari […]. Il collegamento uniforme previsto dal TUEL tra il mandato elettorale e il sistema sanzionatorio del mancato perseguimento, sotto il profilo statico e dinamico, degli equilibri di bilancio è sorretto da elementi sistemici di razionalità intrinseca prima ancora che logico-giuridici: un bilancio non in equilibrio e l’assenza di bilancio costituiscono analoghi vulnera alla programmazione delle politiche pubbliche, in relazione alle quali è svolto il mandato elettorale. Quest’ultimo, indipendentemente dalle scelte di cui è espressione, ha quale presupposto indefettibile la puntuale e corretta redazione e gestione del bilancio secondo i canoni dell’art. 97, primo comma, Cost.», Considerato diritto, 3.2.

[66] Literature is very broad on the subject. In a merely indicative way, on the Anglo-Saxon origins of the principlesee, ex multis, A. Cattarin, Dalla servitù alla sovranità. No taxation without representation, Napoli, Jovene, 2009, pp. 10 ss. and with precise references to the Colonies protest against the Motherland J.P. Greene, The Constitutional Origins of the American Revolution, Cambridge, Cambridge University Press, 2011, spec. pp. 74 ss. More generally, on the relationship between the "no taxation without representation" principle and the form of government see, ex plurimis, C. Mortati, Le forme di governo, Padova, 1973; E. Rotelli, Forme di governo delle democrazie nascenti. 1689-1799, Bologna, Il Mulino, 2005; with reference to the value of this principle in the European Union, see F. Carinci, La questione fiscale nella costituzione europea, tra occasioni mancate e prospettive per il contribuente, in Rass. trib., 2005, p. 543. For a reflection on the implications of this principle in our legal system, see ex plurimis L. Antonini, Sussidiarietà fiscale. La frontiera della democrazia, Torino, 2005, spec. p. 120; F. Gallo, La funzione del tributo ovvero l’etica delle tasse, in Riv. it. dir. pubbl., n. 2/2009, p. 400 ss.; A. D’Atena, Tensioni e sfide della democrazia, in Giur. cost., n. 6/2017, p. 3122.

[67] G. Azzariti, Contro il revisionismo costituzionale, Roma-Bari, 2016, p. 253.

[68]The reference is to the definition of the financial statements as a "public good", contained in sentence n. 184 of 2016, resumed and then expanded in the subsequent judgments of the Judge of Laws.

[69]On this aspect, see C. Pinelli, La giurisprudenza costituzionale tedesca e le nuove asimmetrie fra i poteri dei parlamenti nazionali dell’eurozona, in Costituzionalismo.it, 1/2014; as wellas L. Antonini, I vincoli costituzionali al pareggio di bilancio tra (indebiti) condizionamenti delle dottrine economiche e (possibili) prospettive, in Id. (a cura di), La domanda inevasa. Dialogo tra economisti e giuristi sulle dottrine economiche che condizionano il sistema giuridico europeo, Il Mulino, 2016, p. 23. In the same direction states the BVerfGdecision on the OMT measure proposed by the BCE, see P. Faraguna, La saga OMT: il diritto all’ultima parola, tra Corte di giustizia e tribunali costituzionali, in Giurisprudenza costituzionale, 1/2017, pp. 567 ss.

 

 

 

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