Whistleblowing Law

On December 20, 2021, Law 93/2021 – Whistleblowing Law (“LW”) was published, which transposes Directive (EU) 2019/1937 of the European Parliament and of the Council, of 23 October 2019.

The LW enters into force on June 18, 2022, the date from which the obliged entities will be bound to fulfill the obligations set forth therein.

LW’s obligations are foreseen for all legal persons, including the State and other legal persons governed by public law, that employ 50 or more workers – the obliged entities. In addition to these, and regardless of whether they have 50 or more employees, there are other obligated entities (such as financial institutions).

Obligated entities have the following main obligations:

• Establish internal reporting channels that allow for the safe submission and follow-up of reports. The reporting channels:

1. they can be operated internally (reception of complaint and follow-up), or by external operators (to receive complaint);
2. they can be in writing, or verbally (telephone, voice message or, at the request of the complainant, by face-to-face meeting)

• Notify, within 7 days, the complainant of the receipt of the complaint, and inform him, in a clear and accessible way, of the requirements, competent authorities and form and admissibility of the external complaint;
• Carry out the appropriate internal acts to verify the allegations contained therein and, where applicable, to terminate the reported violation, including by opening an internal investigation or communicating the competent authority to investigate the violation;
• Communicate to the complainant, within a maximum period of 3 months from the date of receipt of the complaint, the measures planned or adopted to follow up on the complaint and the respective grounds.

In the process of handling the complaints and the data of the people involved, the obliged entities will have to:

• Guarantee independence, impartiality, confidentiality, data protection, secrecy and the absence of conflicts of interest;
• Keep a record of the complaints received and keep them, at least, for a period of five years;
• Do not retaliate against the whistleblower. The following are presumed to be acts of retaliation, when practiced up to two years after the denunciation:

1. a) Changes in working conditions, such as functions, hours, place of work or remuneration, non-promotion of the worker or non-compliance with work duties;
2. b) Suspension of employment contract;
3. c) Negative performance evaluation or negative reference for employment purposes;
4. d) Non-conversion of a fixed-term employment contract into an open-ended contract, whenever the employee had legitimate expectations in this conversion;
5. e) Non-renewal of a fixed-term employment contract;
6. f) Dismissal;
7. g) Inclusion on a list, on the basis of a sector-wide agreement, which may lead to the impossibility of, in the future, the whistleblower finding employment in the sector or industry in question;
8. h) Termination of a supply or service provision contract;
9. i) Revocation of an act or resolution of an administrative contract, as defined in the terms of the Code of Administrative Procedure.

 

Failure to comply with the obligations set out in this Law is subject to fines, depending on the seriousness of the Administrative Offence in question – the fines may go up to EUR 250,000.00 in the case of very serious offences, and up to EUR 125,000.00 in the case of serious offences.