The draft law protecting whistleblowers regulates a confidential whistleblowing channel and creates and defines the functions of a new competent authority
On March 4, 2022, the preliminary draft law was approved, which purpose is to protect people who report criminal, unethical or irregular behavior. This bill is aimed at the public sector and all companies with more than 50 employees, with the obligation to establish internal whistleblowing channels, which guarantee confidentiality and avoid any kind of retaliation. Preliminary draft law on whistleblowing channels
As we explained in the previous post/previous posts (depending on when we publish it), this preliminary draft responds to the need for the transposition of the European Directive known as Whistleblowing, approved in 2019.
The deadline for transposing said directive ended last December 17. However, 24 of the 27 member states have done so after the deadline.
Information systems that will guarantee whistleblower confidentiality
The transposition of the Directive in Spain will involve the creation of two information systems that can guarantee the confidentiality of whistleblowers. On the one hand, through the establishment of internal channels to receive anonymous complaints.
On the other hand, through external channels, reflected in the figures of an independent whistleblower protection body. This not only prohibits retaliation against whistleblowers, but also protects whistleblower intermediaries.
It should be noted the great reception that the whistleblowing culture has had on the international scene, which is now reflected in Spain, through the reforms implemented with the Organic Law 1/2015 (Article 31 bis of the Criminal Code), which introduced the Compliance tool.
Consequently, in order for companies to cooperate in the investigation of unlawful conduct, it is necessary to have knowledge of the same.
Therefore, within the regulatory compliance programs, these whistleblowing channels, which make it possible to obtain information without putting the informant at risk, are of great importance.
In view of the above, we could say that the point of connection between compliance and whistleblowing channels lies in the fact that the criminal liability of the company depends, for the most part, on its collaboration in the investigation of the crime.
Applicability of the law
Regarding the area of application, the rule will protect natural persons who report, among others, actions or omissions that:
- May infringe EU law on public procurement, financial services, products and markets, prevention of money laundering and terrorist financing, consumer protection, protection of privacy and personal data, security of networks and information systems, EU financial interests, internal market, as regards competition, state aid and corporate taxation, occupational health and safety.
- They may involve a serious or very serious criminal or administrative infringement, or any violation of the rest of the legal system provided that, in any of the cases, they directly affect or undermine the general interest, and do not have a specific regulation.
Areas of protection of the law
The future law will protect whistleblowers working in the private or public sector who are aware of violations in an employment or professional context.
Among others, it will protect persons working as employees, including volunteers and trainees and even those who have completed their employment relationship or have not yet started it.
It will also protect public officials, shareholders and members of the administrative, management or supervisory body of a company, including non-executives, any person working under the supervision of contractors, subcontractors and suppliers.
Protection measures shall also apply to facilitators, third parties and legal entities related to the whistleblower.
What protective measures will the new law implement?
The protection measures to be implemented by the new law are prohibition of retaliation; relating to dismissal, suspension from work, economic damage or loss, coercion, harassment, negative evaluation, blacklisting or cancellation of license or permit.
Support measures; information and advice on whistleblower protection and rights, effective assistance in their protection and financial support, psychological support. Preventive measures against retaliation and protection measures for persons under investigation. In addition, it will implement clemency programs.
Types of reporting channels
The draft legislation differentiates between two types of whistleblower channels:
Internal whistleblowing systems
Internal whistleblower systems must meet the following requirements:
- Duty of confidentiality of the identity of the whistleblower and any third party mentioned in the complaint.
- Enable the submission of verbal and/or written communications.
- Ensure the effectiveness of communications.
- Guarantee independence with respect to the internal information systems of other entities or agencies.
- Appoint a person responsible for the system.
- Define and publicize a policy outlining the general principles of internal information channels.
- Establish a procedure for dealing with communications received, including a maximum period of 7 days for notifying receipt of the complaint.
- Determine the protection guarantees for whistleblowers.
External public whistleblower channel
According to the Whistleblower Bill:
“Any natural person may report to the Independent Whistleblower Protection Authority (…), through its external communications channel, the commission of any actions or omissions included in the scope of application of this law, either directly or following communication through the corresponding internal channel.”
The Independent Whistleblower Protection Authority will have the following functions:
- Maintenance of record of the external channel of communications.
- Determination of the whistleblower protection measures established in the regulation.
- Creation of rules within its scope of competence.
- Processing of sanctioning procedures and imposition of sanctions.
- Preparation of recommendations and guidelines.
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