II.COMPARISONS OF OECD COUNTRY LEGAL FRAMEWORKS FOR BUDGET SYSTEMS

bills, was declared unconstitutional by the United States Supreme Court in 1998. As a consequence, the entire law was abrogated. Second, as part of its obligatory review for constitutionality of “organic laws”, the French Constitutional Council removed two articles from the Organic Budget Law in 2001. The requirement for Parliament to review the annual work plan of the external audit office (the Court of Accounts), an independent constitutional body with some juridical functions, was declared unconstitutional.

●No review for constitutionality. In Westminster and most Nordic countries, there is no constitutional court. Should any changes in the budget system be incorporated in a new law, there is no high-level court that questions constitutionality. Nonetheless, the justice department and/or parliamentary law drafters ensure that laws are consistent with other legislation.

Besides reviewing budget system laws at the stage between adoption and promulgation, courts may be called upon to make judgements when the legislature and executive do not respect the law. Such instances are rare. This partly reflects the nature of budget system laws: they provide an overarching framework and are flexible in implementation, so there are few areas where executives or legislatures could be “prosecuted” by interested parties for noncompliance with the law.

Laws may provide safeguards for non-compliance. For example, if the annual budget is not adopted by the legally prescribed date, the budget system law usually makes clear provisions to provide interim budget authority at the beginning of a new fiscal year. A second example concerns quantitative fiscal rules. When these are embedded in law, there are generally also enforcement mechanisms, such as expenditure sequestering requirements (e.g. Budget Enforcement Act in the United States) or fines in the form of compulsory deposits (the European Union Maastricht criteria). If enforcement rules are not respected, the courts may be called upon to intervene.10 In the states of the United States, where 1) budget system laws are quite specific, and 2) resort to litigation is common, the state judiciaries have, on rare occasions, been called upon to make judgements when a state has failed to balance its budget, as required by state constitutions (Briffault, 1996).

3.4. External audit offices

3.4.1. Constitutional or legal “models” for external audit

In most OECD countries, the written constitution establishes an independent external audit office (or equivalent). Even if there is no written constitution, external audit offices are usually established by a dedicated law. Such laws differ according to the degree of auditors’ independence (especially from the executive), their governance structures, and whether they have juridical functions. In external audit laws, one can distinguish five “models” of

II. COMPARISONS OF OECD COUNTRY LEGAL FRAMEWORKS FOR BUDGET SYSTEMS

external audit offices, of which the first is now predominant and the one most closely in line with INTOSAI standards:

●Independent bodies entirely at the disposition of the legislature. In Westminster countries, the head of the external audit office is considered an officer of Parliament. These countries have also assigned a “controllership”

function to the Auditor General, requiring him/her to countersign all releases of budgeted funds to spending ministries.11 In the United States, the General

Accounting Office (GAO), established by law in 1921 and renamed by law in 2004 as the Government Accountability Office, provides audits exclusively for Congress. The Austrian Court of Accounts, which does not possess the competencies of a court, also best fits this model (IMCL, 2003).

●Parliamentary auditors, with an external audit body serving them. This is the case of the Nordic countries, whose constitutions require parliament to appoint or elect a number of parliamentary auditors or, as in Sweden, an advisory board. In all the Nordic countries, parliamentary auditors or the advisory board work in collaboration with, or are serviced, by an external audit office entirely under the control of Parliament.

●Independent “courts”, without juridical functions, partly serving the executive. The Constitutions of Germany and the Netherlands establish Courts of Accounts that are characterised by collegial management. In Germany, members of the court (who have the same independence as judges) form “colleges” for peer reviews of individual audits. In contrast to the courts in several other continental European countries (see next bullet), these “courts” do not exercise juridical powers.

●Independent courts with juridical functions, partly serving the executive.

The courts of accounts of countries such as Belgium, France, Italy, and Spain have juridical powers. The members of the courts are magistrates, who judge the accounts of government accountants, and are empowered to take follow-up legal action if necessary. By its Constitution, the French Court of Accounts serves both the executive and legislature, whereas the Italian and Spanish Courts of Account are directly accountable to their Parliaments. In France, the president of the Court is appointed exclusively by the head of State (not Parliament), on the recommendation of ministers (Flizot, 1998), whereas in Spain he/she is appointed by the King upon the recommendation of the full session of the Court. In contrast, in Belgium, the president of the Court is appointed by Parliament.

●Independent bodies under the executive. In Japan and Korea, the external audit offices are under the control of the executive. However, they are

independent from the Cabinet of ministers and are not part of a government ministry.12 By contrast, until recently, the external audit offices in Finland and

Sweden were under the Ministry of Finance, as was that of Denmark until the