January 26, 2022 rcplegal 0 Comments

According to the press release of 16.12.2019, the EU Whistleblower Directive comes into force. The directive guarantees a high level of protection for whistleblowers who report breaches of EU law, thus setting new standards at EU level.

Vice President for Values and Transparency Věra Jourova, says: “Whistleblowers are brave people, willing to expose illegal activities – often at great risk to their careers and livelihoods – to protect the public from wrongdoing. They deserve recognition and protection for their courageous actions. I call on Member States to transpose the new rules without delay.”

From the date of the press release, Member States had 2 years to transpose the rules of the Directive into national law. The new Directive covers many key areas of the EU law, from anti-money laundering, data protection, protection of the Union’s financial interests, food and product safety, to public health, environmental protection and nuclear safety.

In order to implement this directive in Romania, the Ministry of Justice has launched a public debate in 2021 on the “Law on the protection of whistleblowers of public interest” which is to be debated and adopted by the Romanian Parliament and should enter into force this year. Therefore, it would be appropriate for each company in Romania to which this Law will be applicable, once it is adopted, to take the necessary steps to implement internal procedures that meet the rigors of the future law, taking into account the current draft version of the Law as well as the provisions of the Directive.

Illegal activities and abuses of law can occur in any kind of organization from private to state-owned regardless of size. They can take different forms such as corruption, fraud, malpractice or negligence in business and the consequence of inaction against them can be serious damage to the public interest.

People who work for an organization, or who are in contact with it as part of their professional activities, are often the first to know about such events and are therefore in a privileged position to inform those who can address the problem.

Whistleblowers, i.e. people who report (within the organization concerned or to an external authority) or disclose (to the public) information about misconduct obtained in a workplace context, help to prevent harm and detect threats or damage to the public interest that might otherwise remain hidden.

In this regard, Directive (EU) 2019/1937 regulates the following:

a) infringements falling within the scope of the Union acts listed in the Annex and concerning the following areas:

(i) public procurement;
(ii) financial services, products and markets, and the prevention of money laundering and terrorist financing;
(iii) product safety and conformity;
(iv) transport safety;
(v) environmental protection;
(vi) radiological protection and nuclear safety;
(vii) food and feed safety, animal health and welfare;
(viii) public health;
(ix) consumer protection;
(x) protection of privacy and personal data and security of networks and information systems;

(b) infringements affecting the financial interests of the Union as referred to in Article 325 TFEU and as detailed in the relevant Union measures;

(c) internal market infringements as referred to in Article 26(2) TFEU, including infringements of Union competition and State aid rules, as well as internal market infringements with regard to acts in breach of the rules on corporate taxation or mechanisms whose purpose is to obtain a tax advantage contrary to the object or purpose of the applicable company tax law.

As far as the scope of the Directive is concerned:

Reporting entities working in the private or public sector who have obtained information on violations in a professional context, including at least the following types of persons:

(a) persons who are workers within the meaning of Article 45(1) TFEU, including civil servants;
(b) self-employed persons within the meaning of Article 49 TFEU;
(c) shareholders and persons forming part of the administrative department, management or supervisory body of an undertaking, including non-executive members, and paid or unpaid volunteers and trainees;
(d) any person working under the supervision and direction of contractors, subcontractors and suppliers.

Reporting persons if they report or publicly disclose information relating to violations obtained in an employment relationship that has since ended.

To reporting persons whose employment has not yet commenced, if the information on violations was obtained during the recruitment process or other pre-contractual negotiations.

The measures for the protection of reporting persons set out in Chapter VI also apply, where relevant:

(a) facilitators;
(b) third persons who have links with the reporting persons and who might suffer reprisals in a professional context, such as colleagues or relatives of the reporting persons; and
(c) legal entities that the reporting persons own, work for or have other links with in a professional context.

With regard to reprisals against the above-mentioned persons, the following are prohibited:

(a) suspension, technical unemployment, dismissal or equivalent measures;
(b) relegation or promotion block;
(c) transfer of duties, change of job location, reduction of salary, change of working hours;
(d) blocking of training;
(e) giving a negative performance appraisal or a negative recommendation for work performance;
(f) the application or administration of any disciplinary measure or reprimand or any other penalty, including a financial penalty;
(g) coercion, intimidation, harassment or ostracism;
(h) discrimination, disadvantage or unfair treatment;
(i) refusal to convert a fixed-term contract of employment into a contract of indefinite duration if the worker had a legitimate expectation that he or she would be offered a permanent post;
(j) refusal to renew a fixed-term employment contract or early termination of such a contract;
(k) damage, including damage to the reputation of the person concerned, in particular on social media platforms, or financial loss, including in the form of lost business opportunities and loss of income;
(l) blacklisting on the basis of a formal or informal sectoral or industry-wide agreement, which may imply that the person concerned will not find future employment in that sector or industry;
(m) early termination or cancellation of a contract for goods or services;
(n) cancellation of a licence or permit;
(o) psychiatric or medical referrals.

In order to ensure the implementation of the Directive, an effective and secure internal reporting channel is of major interest. In this respect, each organization/company, regardless of its specificity, must ensure the following:

(a) designing, establishing and managing the manner in which reports are received so as to protect the confidentiality of the identity of the whistleblower and any third party named in the report and to prevent access to it by unauthorised members of staff;

b) the obligation to provide the whistleblower with confirmation of receipt of the report no later than 7 working days after receipt;

c) the designation of a person, a department or a third party, who shall be responsible for receiving, recording, examining, taking follow-up action and resolving reports, who shall act impartially and independently in the exercise of those duties;

(d) the manner in which follow-up action is to be carried out by the designated person;

e) the obligation to inform the whistleblower of the status of the follow-up actions, at the latest 3 months after the date of the acknowledgement of receipt or, if the receipt of the report has not been acknowledged, after the expiry of the period of 7 days referred to in point b), and thereafter whenever developments in the follow-up actions are recorded, unless the information could endanger the follow-up actions;

How prepared are you to prove the implementation of the Directive and the Public Interest Whistleblower Protection Act in the company you own?

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