What will external reports look like and who will be responsible for them?
External reports are a means of reporting violations of law that whistleblowers will be able to use in communicating directly with the Ombudsman or the competent public authorities, without having to make internal reports within the legal entity where the violation occurred, or to report violation of law in entities that will not be required to implement an internal whistleblowing procedure. It will be the whistleblower's choice whether to report violation of law internally or externally.
The authorities responsible for receiving external reports will be the Ombudsman and other competent public authorities (e.g. the Polish Financial Supervision Authority, the Office of Competition and Consumer Protection and the General Inspector of Financial Information). However, the draft provisions do not specify the competences of the respective authorities, and the authority responsible for receiving external reports, conducting a preliminary examination of such reports and forwarding them to the competent public authority for appropriate follow-up action will be the Ombudsman, based on the external whistleblowing procedure which the Ombudsman will be obliged to establish.
Public authorities will be required to establish their own external whistleblowing procedures for receiving the external reports and undertaking follow-up actions. At the whistleblower's request, the public authority responsible for following up an external report will be obliged to issue a whistleblower status certificate. The deadline for issuing a certificate will be a maximum of one month from the date of receipt of the whistleblower's request for such a document.
If it is not possible to determine the competent authority, the Ombudsman will be obliged to accept and process the external whistleblower report on its own, based on the established external whistleblowing procedure.
How should the external reports be made?
External reports will be made on the basis of and in accordance with the external whistleblowing procedure established by the Ombudsman and the public authorities. The Ombudsman will receive external whistleblower reports, conduct a preliminary review and forward them to the appropriate public authority for follow-up action within 14 days of the whistleblower's external report. As with internal whistleblower reports, external whistleblower reports can be made orally or in writing. An oral report may be made by telephone or electronic means of communication. An oral report may be made via a recorded or unrecorded telephone line or other voice communication system (e.g., voice messages or forms with a recording option), as well as during an in-person meeting with the entity responsible for receiving the external whistleblower reports.
An oral report made with the consent of the whistleblower over arecordedtelephone line or other recorded voice communication system must be documented in the form of: (a) a retrievable recording of the call, or (b) a complete and accurate transcription of the call made by the entity receiving the external whistleblowing report. Conversely, an oral report made over aunrecordedtelephone line or other unrecorded voice communication system will be documented in the form of a an account of the conversation made by the entity receiving the external whistleblowing report, which reconstructs the exact course of the conversation. The whistleblower will have the opportunity to review, correct and approve the transcript or record of the conversation by signing it.
At the whistleblower's request, an oral report may be madeduring an in-person meetingto be arranged within 14 days of receipt of the request. In this case, with the consent of the whistleblower, the report will be documented in the form of: (a) a searchable recording of the conversation, or (b) a record of the meeting made by the entity receiving the external whistleblower report, which accurately reflects the course of the meeting. In this case, the whistleblower may review, correct and approve the an account of the meeting by signing it.
Written external whistleblower reports may be made on paper or electronically. External whistleblower reports on paper may be made to the postal address provided by the Ombudsman or the public authority receiving the external whistleblower report. An electronic external whistleblower report may be made to the e-mail address / electronic mailbox / electronic delivery address specified by the Ombudsman or the public authority receiving the external whistleblower report. In addition, it will be possible to make an external whistleblower report using a dedicated web page form or an application designated by the public authority as the application for making the external whistleblower reports.
In connection with the acceleration of legislative work on the draft act, it is worth taking the first steps now to implement the relevant procedures and prepare logistically to meet the new legal obligations.
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.
