Bill of July 4, 2022 on the protection of whistleblowers | Hogan Lovells
The third iteration of the project differs from the first statutory assumptions of October 14, 2021 of which we provided information last December. The legislator has now extended the scope of the new regulations not only to employers, but in principle to all legal persons for whom work is carried out. The group of people who can make statements has also been expanded to include temporary employees, apprentices or professional military personnel. The catalog of prohibited retaliatory actions has been amended to include coercion, intimidation, mobbing, causing financial loss or inflicting immaterial damage. The catalog of offenses linked to the whistleblowing procedure has been expanded and the penalties already existing in the draft have been reinforced.
The purpose of the new law is to protect people (known as “whistleblowers”) who report or disclose truthful information about violations of public rights and who have obtained this information in a professional context. This includes not only employees (past and present), but also temporary workers, persons who provide work on a basis other than an employment relationship, including under a civil law contract, contractors, shareholders and associates, members of bodies of legal persons, persons who provide work under the supervision and executive direction, subcontractors, suppliers, as well as volunteers, apprentices and interns. A whistleblower cannot be a medical or legal professional if their report violates medical or legal secrecy.
It is a requirement of law that a whistleblower, in making a report, must act in good faith, i.e. in a situation in which the whistleblower has reasonable grounds to believe that the information about the violation of the law that is the subject of the report or the advertisement is true at the time of the report and constitutes information about a violation of the law. Anonymous reports, which might not be recognized by legal persons and public authorities, have been excluded from the legal provisions. Disclosure of the identity of a whistleblower making an anonymous report gives them protection in the same way as whistleblowers.
Internal and external notification procedure
One of the most important elements of the draft law is the obligation for legal persons to put in place, after prior consultation either with the company’s trade union organization or with the representatives of the persons working for the legal person, an internal notification and follow-up procedure. The legal person is required to keep a record of all internal notifications and is the controller of the personal data collected with it.
The obligation to set up an internal notification procedure applies to private entities for which the work is carried out by at least 50 people. An exception is made for private entities that carry out activities in the following areas: financial services, products and markets, prevention of money laundering and terrorist financing, transport security and environmental protection. The aforementioned entities are required to set up alert procedures regardless of the number of people employed. The law will enter into force two months after its promulgation, while the implementation of the obligation to establish an internal procedure by private entities with at least 50 and less than 250 employees must take place by 17 December 2023.
The internal procedure must specify: the internal organizational unit or the person who will be authorized to receive the notifications; the mode of transmission of said notifications with the contact details of the whistleblower; the impartial internal unit empowered to follow up; the obligation to confirm to the notifier the acceptance of the notification within seven days of its receipt; the obligation for the organizational unit to carry out follow-up; a maximum period for feedback to the notifier not exceeding three months from the acknowledgment of receipt; the definition of an incentive mechanism for the use of the internal reporting procedure; understandable and easily accessible information on how to submit external reports to the Ombudsman or public authorities and, where appropriate, to the institutions, bodies or agencies of the European Union.
External reports can be made on paper or electronically, without prior internal reporting, and must be addressed to the Ombudsman or a public authority. These authorities, upon receipt of a notification, are required to verify the notification and, in the event of a positive result, to follow up and provide feedback to the notifier.
Protection of whistleblowers and criminal sanctions
The legislation regulates the ways in which whistleblowers can be protected and contains an exemplary catalog of conduct that cannot be taken against the whistleblower. These include retaliatory actions as well as any attempt or threat to do so, or adverse treatment of a whistleblower for making a report. These actions include, but are not limited to, salary reduction, failure to promote, coercion, intimidation, bullying, transfer to a lower position, or termination or termination without notice.
Whistleblowers are entitled to compensation in the event of retaliation against them and are excluded from disciplinary liability as well as liability for damages for the violation of the rights of others or the obligations provided for by law (for example, the defamation or the obligation of business secrecy).
The law provides for the introduction of new types of offenses relating to obstructing or attempting to obstruct a report, retaliation, breach of the obligation of confidentiality of the identity of the person making the report, knowingly reporting or disclosing false information, failure to establish internal procedures, or establishing procedures that do not meet legal requirements. The corresponding penalties of fine and restriction or imprisonment are also indicated. The prohibition of adverse treatment and retaliation, as well as protection, also extends to persons assisting in making the report, as well as persons connected to the whistleblower.
Although the deadline for implementing the directive has passed on December 17, 2021, the bill is still in the government business stage and it is difficult to predict when it will reach Parliament.
Hogan Lovells will keep you informed of any developments related to the introduction of whistleblower protection.