A big step forward has been taken regarding whistleblowers protection. It will undoubtedly make the complaint channel more effective that must be included in all compliance programs.
This step forward has been established by Directive (EU) 2019/1937 of the European Parliament and of the Council, of October 23, 2019, on the protection of persons reporting on breaches of Union law, which has been published in the Official Journal of the European Union of November 26, 2019, and will enter into force twenty days after its publication.
The protection of the complainant is necessary to improve applying Union law in the area of: public contract procurement; financial services, financial products and markets; prevention of money laundering and terrorist financing; product safety and compliance; transport safety; environmental protection; radiation protection and nuclear safety; food and animal feed safety, animal health and welfare; public health and consumer protection; protection of privacy and personal data and network and information systems safety; financial interests; internal market and breaches of the rules relating to corporate tax and avoidance of tax obligations.
The protection is granted to people, whether citizens of the European Union or nationals of a third state, who, by virtue of their work activities, have privileged access to information on breaches that would be in the interest of citizens to report and who may suffer reprisals if they do. Protection against reprisals must be granted regardless of whether the complaint is made through internal or external channels or by making that information available to the public.
Companies with 50 or more employees must establish internal complaint channels. Member States will encourage companies with fewer than 50 workers to establish these channels.
The complaint channels must guarantee the confidentiality of the complainant. Companies must determine who is the most suitable person or department to receive the complaint. The complainant must be informed clearly and in an easily accessible way about the complaint procedure and also about the response and follow-up on his/her complaint (in the latter case within a reasonable period of time not exceeding three months).
In the event that internal complaint channels do not work or have not been used, European States are obliged to establish external complaint channels, to designate the authority in charge of receiving complaints, to process them and, within a period reasonable not more than three months, to respond to the complainants. To do this, the competent authorities must provide clear and easily accessible information regarding the complaint channels, on the applicable procedures and on the personnel responsible for handling the complaints.
Member States must ensure that the competent authorities have adequate protection procedures for the handling of complaints and for the protection of the personal data of those mentioned in the complaint. The complainant’s right to confidentiality must be respected. Those responsible for managing such complaints or who can access the information contained in them must fulfil the duty of confidentiality and professional secrecy. Moreover, it must be ensured that there is a record of the complaints.
Whistleblowers must be protected against any form of reprisal that is encouraged, taken or tolerated by their company or by customers or service recipients and by persons working on their behalf or in their name. Member States must establish a clear legal prohibition of reprisals.
It must not be possible to prevent complaints, deny protection or penalize the complainant, rely on legal or contractual obligations, such as fidelity or confidentiality clauses and non-disclosure. Complainants should not incur any liability, whether civil, criminal, administrative or labour.
Member States shall establish effective, proportionate and dissuasive fines against those who prevent or attempt to prevent complaints, take reprisals against complainants or pursue abusive procedures against them or breach the duty to maintain the confidentiality of their identity.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
