Whistleblowing, a mandatory internal channel in the Spanish companies
Whistleblowing is a means of channelling complaints related to criminal, unethical, or irregular behaviours by the company, its employees or third parties related to the company.
Specifically, it is a complaints channel to report, among others, the following behaviours:
- Frauds and scams
- Money laundering
- Non-compliance with data protection regulations
- Tax evasion or avoidance
- Intellectual or industrial property offences
- Unfair competition
- Crimes against the market or consumers
- Internal corruption
- Irregularities in the Social Security or Public Treasury
The entry into force of Directive (EU) 2019/1937 of the European Parliament and of the Council of 23 October 2019 on protecting individuals reporting infringements of Union law seeks to introduce, at the European level, a regulation of this type of complaint.
- The requirement to have an internal complaints channel in public entities, as well as in private companies with 50 or more employees
- The establishment of a set of minimum requirements of the reporting channel: guarantees of confidentiality and diligent processing, the establishment of specific deadlines, or the prohibition of reprisals against the complainant.
Regarding its time limit for implementation, the Directive lays down, with a view to its transposition in each Member State, the obligation for the Member States to have in force before 17 December 2021, the laws, regulations, and administrative provisions incorporating those obligations into their respective legal systems.
It also establishes a four-year period since its entry into force for private companies with between 50 and 249 workers to implement these obligations. Such period ends on 17 December 2023.
Main points of the new obligations
The Directive sets a series of minimum requirements for the whistleblowing channels to guarantee the complainant’s protection:
- The channel shall ensure the completeness, authenticity, identity, and confidentiality of both the complainant and the denounced person. The security measures must be implemented for this purpose
- It shall allow for long-term storing of information to enable further research
- It shall allow for written and verbal reporting. Verbal reporting will be possible by telephone, or through voice messaging systems, after a prior request of the complainant through a face-to-face meeting
- An appointed person, autonomous and impartial, will follow up and investigate the complaint
- Acknowledgement of the receipt of the complaint within seven days from its receipt
- It shall ensure that the complainant does not suffer reprisals because of the complaint
- Access to complaints is restricted to strictly necessary personnel.
Complainant protection measures
- Information and advice regarding the procedures and resources available to him
- Effective assistance by competent authorities regarding protection against retaliation
- Financial help and support measures, including psychological support, in the framework of the possible judicial process.
Consequences of not implementing the complaint’s channel
Article 53 of law 10/2010 of 28 April on the prevention of money laundering and financing of terrorism states that failure to establish the complaint channel shall account for an infringement, punishable with a private warning, or by a fine of up to €€60,000.
By implementing the whistleblowing or reporting channel, companies must grant their employees the chance to proceed with complaints of those behaviours that are not in line with the law. Therefore, it is advisable to anticipate the entry into force of the legislation.
This article is not considered legal advice