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European Directive for protection of persons who report about infringements

It dates back as far as November 26th, 2019 when the EU Directive 2019/1937 of 23rd of October 2019 on the protection of whistleblowers, commonly known as the "Whistleblower Directive", was published in the Official Journal of the European Union – say the “OJEU” – the latter to be transposed into national law in December 2021.

Protection of whistleblowers who report about infringements

The aim of the Norm is to ensure the protection of employees and self-employed persons, domestic employees and public sector employees, as well as former employees and persons who have not yet started to provide services, but who are aware of irregularities and other interested parties, such as shareholders, members of board of directors, volunteers and apprentices and persons working for contractors, subcontractors or suppliers, when they report irregularities or breaches related to topics such as:

  • Public procurement.

  • Prevention of assets laundering.

  • Financial services, products and markets.

  • Product safety.

  • Transportation safety.

  • Environmental protection.

  • Radiation protection and nuclear safety.

  • Safety of food.

  • Public health.

  • Consumer protection.

  • Protection of personal data and privacy.

  • Competition.

  • Security of networks and information systems

  • Financial interests of the Union (expenditure, revenue and fundraising) and corporate taxation.

The Directive clearly rises a change that doesn’t just mirror on legislation, but also on culture. The so far reviled attitude, that of the whistleblower, is now positively valued. In fact, the implementation of the Directive has turned the claimant or "whistleblower", no longer to be the target of reprisals or sanctions; rather than this; these figures will become actors to be protected. Their intervention will no longer be the object of persecution and reprisals, but their activities will have to be facilitated as a means of control and guarantee of compliance by companies.

Targets of the Whistleblower Directive

The Directive basically aims for:

  • Discovery and prevent infringements.

  • Strengthening enforcement by establishing effective, confidential and secure whistleblowing channels and ensuring effective protection of whistleblowers against reprisals.

  • Preventing whistleblowers from incurring any liability, whether civil, criminal, administrative or employment-related.

Unless criteria are changed in the implementation of the law at national level, the Directive establishes that the regulations apply on those companies with more than 50 employees or with an annual turnover of more than 10 million euros. Public bodies and authorities, as well as districts with more than 10,000 inhabitants, will also be affected.

In general terms, the companies and bodies subject to the law will be required to:

  • Define internal or external whistleblowing channels, the so-called Ethical Channels.

  • Establish protocols to substantiate, ensure the management and follow-up of all complaints received, so that they can be consulted and easily processed by Compliance Officers.

The application of the Directive is closely related to the implementation of Criminal Compliance Systems in companies, the so-called Criminal Compliance already contemplates the application of protocols for receiving complaints and managing them, in a way that guarantees the complainant, and with a view to achieving strict compliance with the legislation, which can avoid possible criminal liability for companies.

Therefore, we now just wait for the transposition into national law to disclose the obligations, but for sure we will have to avoid expressions such as "boy, don't be a snitch".

If your company has more than 50 employees or an annual turnover of more than €10 million, contact us. Our Consulting Department will be delighted to help you.

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