Whistleblowing Directive and the Regulatory Act for the Protection of Persons Reporting Regulatory Violations
“Whistleblowing”, also known as whistleblowing, is a mechanism by which employees of a company report irregularities or violations of regulations within the organization.
The Law 2/2023, of February 20, regulating the Protection of Persons Reporting Regulatory Offenses and the fight against corruption has been published in the BOE of February 21, 2023, transposes Directive (EU) 2019/1937 of the European Parliament and of the Council of October 23, 2019, known as the Whistleblowing Directive.
The regulation, as well as its European Directive, aims to contribute to transparency, business ethics and the fight against corruption, protecting people who, in an occupational or professional context, detect serious or very serious criminal or administrative offenses and report them through the mechanisms regulated therein.
The content of the new Law.
The main purpose of the Regulatory Law for the Protection of Persons Reporting Regulatory Violations is to establish a legal framework for the protection of informants or whistleblowers, with the aim of promoting the reporting of any violation or irregularity that they may witness in their work environment.
The text of the law establishes the rights and guarantees granted to whistleblowers, as well as the mechanisms for making complaints. It also establishes measures to protect the confidentiality of informants and prohibits any type of retaliation or discrimination against them.
Rights and guarantees for whistleblowers.
The Law recognizes a series of fundamental rights and guarantees for informants. These include the protection of their identity and the confidentiality of the information provided. In addition, it prohibits any form of retaliation, whether in the form of dismissal, sanctions, harassment or discrimination, against those who report in good faith.
The legal framework also establishes the right of whistleblowers to receive information on the progress and resolution of their complaint, as well as to obtain legal advice and protection.
Additional measures for the protection of informants are established, such as the assignment of personal protection measures, transfer to another department or modification of the informant’s working conditions, if deemed necessary to ensure his or her safety.
All companies with 50 or more employees are obliged to establish an information system or protocol for the application of the measures included in the new Law. Other institutions such as employers’ associations and unions, foundations, and political parties, when they are beneficiaries of public funds, are also obliged to do so.
Companies with more than 250 employees are obliged to comply with the Law within three months of its entry into force, which took place 20 days after its publication, which means that as of June 13, 2023 all companies with more than 250 employees must have already implemented the system or protocol.
Companies with a workforce smaller than the indicated size will have until December 1, 2023 to implement the measures of the Law and comply with the obligations established therein.
The Law establishes a regime of sanctions that considers as a very serious infraction the failure to implement the internal information channel for employees to file the corresponding complaints that this regulation intends to promote.
The financial penalties foreseen for companies for this reason range from 600,001 euros to 1,000,000 euros. Such a heavy penalty regime is significant in terms of the importance that is intended to be given to compliance with this regulation.