The new ‘whistleblower law’ does not remove the fear of reporting within companies

Update Post: November 28, 2023 10:43 pm

On February 20 of this year, Law 2/2023 was published in the Official State Gazette (BOE), which developed new regulations to guarantee the protection of whistleblowers of corruption cases within their own companies. The Whistleblower Protection Law transposes the European Parliament’s ‘Whistleblowing’ Directive, whose implementation the Spanish Government had pending since 2019, but also adds additional requirements that complicate the application of the rule.

The law requires all public or private companies that have more than 50 workers to create an internal channel within the entity with which the effective processing of anonymous complaints can be guaranteed, according to the Uría-Menéndez law firm. . In addition to requesting guarantees to avoid retaliation, the constitution of an Independent Whistleblower Protection Authority is also required, which would manage an external channel to provide even more security to the whistleblower’s anonymity.

The new legislation introduces modifications to the European directive, which establishes a broader scope of application and very specific guides for the creation of information systems. This, added to some inaccuracies in the text that can raise doubts about the interpretation of the law in the courts and the short implementation period required of companies, has posed a challenge for entities that have been forced to create new channels of complaint. .

Penalties of up to one million for not complying with the regulations

Although many national companies already have anonymous information channels within their structure, the new law requires unifying the different information channels into a single system, appointing people responsible for managing the system and ensuring compliance with the requirements. response deadlines. Specifically, companies have only seven days to schedule a meeting with an informant from their request, and three more months to act on the complaint.

Entities that do not comply with these requirements may face sanctions ranging from 300,000 euros to one million, reprimands or blocks from receiving subsidies or signing public contracts. To avoid these reprisals, Spanish companies have rushed to implement the necessary complex information system within the three-month deadline offered by the public administration since the law came into force in March of this year.

The workers distrusted the system.

Even though the law is dedicated to regulating the protection of informants, fear and mistrust continue to be one of the main reasons why corruption plots are covered up. José Miguel Alcolea, partner in Garrigues’ conflict resolution area, points out that possible conflicts such as uncertainty about the criminal responsibility that may fall on the informant for the reported crimes make the optimal implementation of Law 2/2023 difficult.

To avoid reluctance when reporting violations, the law provides for a series of guarantees and measures to avoid retaliation. These begin by preserving the confidentiality of the informant, protecting the data and identity of the worker in the reporting process and imposing high sanctions on companies that do not comply with the duty of admitting complaints anonymously. In addition, additional measures are included that not only offer protection against harm suffered as a result of reporting, but can also provide advice or even financial and psychological support.

People who, despite these measures, do not consider it appropriate, due to risk of retaliation or any other reason, to make use of the information mechanisms within their organization, could go to the external channel, managed by the Independent Whistleblower Protection Authority. However, the autonomous institution is not yet operational, so the complainants see their possibilities limited to the information systems implemented by their companies.

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September 25, 2023 2:44 am