In a statement, the TdC indicated that the creation of the arbitral tribunal within the scope of the contract between the Regional Health Administration (ARS) of Alentejo and Acciona for the construction of the hospital "was not sufficiently substantiated and was illegal".

According to the Court of Auditors, this is the main conclusion of the inspection action carried out within the scope of the audit work to monitor the execution of the construction contract, signed in December 2020. The report will be sent to the Public Prosecutor's Office.

The inspection, he stressed, aimed to assess "the legal compliance" of the constitution and functioning of the arbitral tribunal, the hiring of legal advice and payments made by the ARS of Alentejo related to the arbitration process.

"This arbitral tribunal was constituted on 21 April 2022 - the value of the action was set at 71.1 million euros and the total charges for the arbitrators' fees and administrative costs at 353.7 thousand euros -- without, under the terms of the law, Acciona having the right to its constitution and the public entity having the duty to accept the proposal", he stressed.

The TdC said it also concluded that the decision of the board of directors of the ARS of Alentejo (to constitute the arbitral tribunal) "presupposed a prior assessment, under the terms of article 476 of the Public Contracts Code, which was not carried out".

Noting that the ARS accepted that the arbitral tribunal would be based in the office of the law firm that conducted the process, the judges considered that this decision "constitutes a disrespect for the principle of transparency and separation at all levels between the legal profession and an arbitral tribunal".

"The inspection action also allowed us to conclude that the payment of the fees of the presiding arbitrator and the secretary of the arbitral tribunal have been made, by determination of the presiding arbitrator himself, to the law firm of which he is a partner and of which the secretary is a lawyer and not directly to the persons designated to exercise such functions", they said.

This conduct, stressed the TdC, "lacks legal basis, as the arbitrator's contract was made with the president of the arbitral tribunal and not with the law firm of which he is a partner".

"The payments to the law firm, in the amount of 28.3 thousand euros, did not respect any effective consideration and are likely to give rise to financial reintegration liability on the part of the members of the board of directors of the ARS of Alentejo", he added.

The court recommends to the Ministry of Health compliance with the rules relating to the constitution and functioning of arbitral tribunals, to the making of expenses and payments and to the rules for the award of contracts for the acquisition of legal services by direct adjustment selected according to material criteria.

In early October 2022, the Jornal de Negócios reported that Acciona was claiming compensation from the State of more than 50 million euros, in an arbitral tribunal, relating to the construction of the new Central Hospital of Alentejo.

The future hospital, which is being built by Acciona on the outskirts of Évora, should have about 360 beds in single rooms, a capacity that can be increased, if necessary, to 487 beds.

The new unit, whose works should be completed at the end of this year, costs more than 200 million euros and will have, among other valences, 11 operating blocks, three of which for conventional activity, six for outpatient and two for emergencies, five pre-operative posts and 43 recovery posts.

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