On 23 October 2019, Directive (EU) 2019/1937 of the European Parliament and of the Council on the protection of individuals who report breaches of Union law was adopted and published in the Official Journal of the European Union (OJEU) L series, No 305 of 26 November 2019.

Drawn up on the basis of the Council of Europe recommendation on the protection of whistleblowers in the public interest, the Directive covers a wide range of categories of persons who, by virtue of their employment relationships (regardless of the nature of these activities and whether or not they are paid), have access to information about breaches which may harm the public interest and who may suffer reprisals if they report such breaches, as well as other categories of persons who may be assimilated to them, such as shareholders and members of management bodies in companies, volunteers, unpaid trainees and jobseekers.

Romania transposed Directive 1937/2019 through Law no. 361/2022 on the protection of whistleblowers in the public interest, published in the Official Gazette of Romania on 19 December 2022.

The law aims to increase the level of protection of whistleblowers in the public interest, which guarantees respect for freedom of expression and the right to information, taking into account that insufficient protection of whistleblowers against reprisals affects the freedom of expression of individuals, as well as the right of the public to access information and freedom of the media. Also, by establishing reporting channels and improving protection against reprisals in the professional context, the aim is to ensure a higher level of protection for whistleblowers and thus guarantee the right to fair and just working conditions.

At a general level, the Act aims to improve and streamline reporting procedures and to discourage violations of the law.

Specifically, according to the Law no. 361/2022, information, including reasonable suspicions, may be reported on actual or potential violations of the law, which have occurred or are likely to occur in authorities, public institutions or other legal persons under public law, as well as in legal persons under private law, in which the whistleblower works or has worked in the public interest or with which he is or has been in contact through his activity, as well as information on attempts to conceal such violations.

The paper recommends that companies implement, in accordance with their size and resources, a system for managing integrity warnings.

There is a special mention in the law that, for private sector legal entities with between 50 and 249 employees, the obligation to identify or establish internal reporting channels has a deadline of 17 December 2023.

In order to encourage the reporting of breaches of the law that harm the public interest, to ensure the minimum standard of protection for whistleblowers required by the Directive, Law 361/2022 establishes support and protection measures for whistleblowers in the public interest, such as exemption from liability for breaches of restrictions on disclosure of information.

As a recommendation, we suggest that by the deadline of 17 December 2023, you implement the following:

1. Develop an internal policy as an annex to the Internal Rules. This should include general information in the field, the reporting channels, the protection measures applicable to whistleblowers and should be made known to all your employees, both via the intranet and by posting, information sessions, etc. It should also be part of the onboarding programme for new employees.

2. Preparing initial trainings on this aspect, as well as subsequent trainings, depending on the evolution of the legislation, but also on cases in practice.

3. Appointing an Ethics Officer and a Deputy Ethics Officer (who can take over the responsibilities of the Ethics Officer when the latter is not available, so that the efficiency of the reporting channel is not compromised).

4. Amendment of confidentiality agreements taking into account that the rights and obligations provided for in Law 361/2022 take precedence over any confidentiality agreement, so they should be mentioned as exceptions in these documents.

5. Initiation of integrity warning files.