UPDATED TEMPLATE ON THE 26-11-2019 WITH THE TRANSPOSITION OF THE EUROPEAN DIRECTIVE
THIS TRANSPOSITION OF THE DIRECTIVE IS THE FIRST THAT HAS BEEN MADE IN EUROPE AND THE FIRST TO BE REGISTER IN A PARLIAMENT
This text wants to be an exhaustive base to create legislations to protect whistleblowers adapting it to the needs, culture and context of each country, nation or region. We invite you to present it in your parliament for its implementation.
License: as we have done in the explanatory statement where all the works that inspired the text are reviewed, when you adopt it we ask you to recognize somehow the sources, the efforts of Xnet and WIN. Many thanks.
Other related information -> Proliferation of safe and anonymous mailboxes that are not: https://www.counterpunch.org/2017/11/08/warning-to-spanish-and-other-whistleblowers-anonymous-boxes-which-are-not-anonymous/]
Law registered in the Spanish Parliament on the 11 of November 2019
PROPOSED TEXT OF THE DRAFT LAW ON PROTECTION OF WHISTLEBLOWERS
Article 1. – Objective.
TITLE I. GENERAL PROVISIONS
CHAPTER I. SCOPE OF THE LAW
Article 2. – Subjective scope of application.
CHAPTER II. DEFINITIONS
Article 3. – Definitions and subjective scope of protection.
Article 4. – Information on breaches.
TITLE II. RIGHTS AND REPONSIBILITIES OF OF WHISTLEBLOWERS AND FACILITATORS
CHAPTER I. RIGHTS OF AND GUARANTEES OF WHISTLEBLOWERS AND FACILITATORS
Article 5. – Rights assisting whistleblowers and facilitators.
Article 6 – Right to security and prohibition on retaliation.
Article 7. – The whistleblower’s right to confidentiality and anonymity.
Article 8. – Right to information, access to case files, and concerning procedural actions.
Article 9. – Right to legal advice and defence.
CHAPTER II. MEASURES TO PROTECT EMPLOYMENT AND ECONOMIC ACTIVITY OF WHISTLEBLOWERS AND FACILITATORS
Article 10. – Common measures.
Article 11. – Measures to protect civil servant whistleblowers and/or facilitators, or employed by the public administration.
Article 12. – Measures to protect the economic or professional activity of the self-employed whistleblowers and/or facilitators.
CHAPTER III. LIABILITY REGIME ON RESPONSIBILITY OF WHISTLEBLOWERS AND FACILITATORS WHEN DISCLOSING INFORMATION ON BREACHES
Article 13. – On the whistleblowers’ and facilitators’ liability.
TITLE III. INFORMATION SYSTEMS OR DISCLOSING CHANNELS FOR WRONGDOING
Article 14. – Protection of confidentiality or anonymity.
Article 15. – Types of disclosing channels.
Article 16. – Information about disclosing channels.
Article 17. – Disclosing procedure.
Article 18. – Freedom of choice.
Article 19. – Internal systems.
Article 20. – External systems.
Article 21. – Storage of information on breaches.
TITLE IV. INDEPENDENT AUTHORITY FOR THE PROTECTION OF WHISTLEBLOWERS AND FACILITATORS
CHAPTER I. GENERAL PROVISIONS
Article 22. – Subject matter and legal nature.
Article 23. – Purposes and functions.
Article 24. – Delimitation of functions and collaboration.
CHAPTER II. THE PROCEDURE FOR THE PROTECTION OF WHISTLEBLOWERS AND FACILITATORS
Article 25. – Duty of collaboration.
Article 26. – Duty of proportionality and justification.
Article 27. – Confidentiality and anonymity; personal data protection.
CHAPTER III. THE RESULTS OF ITS ACTIVITY
Article 28. – Annual report.
Article 29. – Recommendations and opinions.
CHAPTER IV. HUMAN AND MATERIAL RESOURCES
Article 30. – Personnel status of the Authority’s management.
Article 31. – Incompatibilities.
Article 32. – Cessation.
Article 33. – Appointment, principles, incompatibilities and dismissal of personnel in the service of the Authority.
Article 34. – Budget and accounting.
TITLE V. PENALTY SYSTEM
Article 35. – Competent bodies to exercise sanctioning powers.
Article 36. – Obligation to report wrongdoing.
Article 37. – Infractions.
Article 38. – Penalties.
Article 39. – Proportionality in imposition of penalties.
Article 40. – Statute of limitations.
Article 41. – Awarding damages.
First additional provision. Follow-up commission
Second additional provision. Amendment to Law 1/1996, 10th January, on Free Legal Aid.
Third additional provision. Amendment to Law 1/2000, 7th January, of Civil Procedure.
Fourth additional provision. Amendment to the Royal Decree,14th September 1882, passing the Criminal Procedure Code.
Fifth additional provision. Amendment to Law 29/1998, 13th July, regulating the Contentious Administrative Jurisdiction.
Sixth additional provision. Amendment to Law 36/2011, 10th October, regulating Social Jurisdiction.
Seventh additional provision. Amendment to Organic Law 10/1995, 23th November, of the Criminal Code.
One only. Repeal of provisions
One only. Coming into force
The present Law is the transposition of the Directive (EU) 2019/1937, of the European Parliament and of the Council on the protection of persons reporting on breaches of Union law.
It aims to contribute towards the consolidation of systems monitoring, pointing and disclosing irregularities in the public and private spheres, and providing in both domains consistent protection for whistleblowers, who, when it would seem that the public interest is harmed or threatened, disclose information on breaches and concerning wrongdoing in the public administration and in private companies or entities. A further objective is regulating internal and external disclosing channels in branches of the administration and private companies or entities, establishing which obligations must be met by those responsible in the public and private spheres, and also the consequences which might derive from their non-observance through the effective penalty system, in order to put an end, with all these measures, to systematic abuses.
The present draft Law has been drawn up by Xnet* – activist group that works on the renewal of democracy – with the revision from Whistleblowing International Network (WIN), and Government Accountability Project (GAP) and comments from Blueprint for Free Speech, on the basis of the “Decalogue for the Protection of Whistleblowers” of the Citizen Group against Corruption of which Xnet is a founding member and, as recognised in our legal system, the principle concerning the duty of every citizen with knowledge of the perpetration of a crime to make it known to the authority concerned (in Spain established in articles 259 and 262 of the Criminal Procedure Act). This draft Law has been drawn up including, adapting, and updating several sources, among them texts being used or discussed in other thematic areas and geographical locations. Noteworthy among these texts are the On Prevention of Corruption Act No. 1700-VII (Ukraine, 2014), the Protected Disclosures Act (Ireland, 2014), and the recommendations of, among others, WIN (the main European network of organisations for the protection of warners of which Xnet is a member), Protect (formerly known as Public Concern at Work), Courage Foundation and Expose Facts.
This law also takes accounts of various persuasive judgments of the European Court of Human Rights, and takes account of the Council of Europe’s Recommendation CM/Rec(2014)7on the protection of whistleblowers adopted by the Committee of Ministers to member states on 30 April 2014 and its explanatory memorandum; the guidelines of the “European Parliament resolution of 24 October 2017 on legitimate measures to protect whistleblowers acting in the public interest when disclosing the confidential information of companies and public bodies”; the UN provision on the Protection of Sources and Whistleblowers; the OCDE’ Guidelines on Whistleblower Protection; the G20 Whistleblower Protection Frameworks; the Agency for the Prevention and Fight against Fraud and Corruption of the Valencia Region, the Spanish Organic Law 19/1994 of 23 December, on the Protection of Witnesses and Expert Witnesses in Criminal Cases and insofar as its model of comprehensive protection for victims has been taken as a reference, Organic Law 1/2004, of 28 December, on Comprehensive Protection Measures against Gender Violence and the Statute for the Protection of Victims of Crime 4/2015, of 27 April and the Law 11/2016, of 28 November.
Spain is signatory to several international instruments providing legally binding and persuasive recommendations for national implementation of whistleblower protection.
Spain is a member of Council of Europe. In 2014, the Council of Minsters adopted 26-principled Recommendations on the protection of whistleblowers (CM/Rec(2014)7). This is a legal instrument and forms part of the European legal “acquis.” It is cited specifically as a key basis for the EU Directive on the protection of reporting persons.
Spain has ratified both the Civil and Criminal Law Conventions on Corruption. Article 22 of the Criminal Law Convention on Corruption (in the section ‘Protection of collaborators of justice and witnesses’) states: ‘Each Party shall adopt such measures as may be necessary to provide effective and appropriate protection for: (a) Those who report the criminal offences established in accordance with articles 2 to 14 or otherwise co-operate with the investigating or prosecuting authorities; (b) Witnesses who give testimony concerning these offences.’ Article 9 of the Civil Law Convention on Corruption (in the section on the ‘Protection of Employees’) states: “Each Party shall provide in its internal law for appropriate protection against unjustified sanction for employees who have reasonable grounds to suspect corruption and who report in good faith their suspicion to responsible persons or authorities.”
In 2006 Spain ratified the legally binding United Nations Convention against Corruption of which Article 33 ‘Protection of Reporting Persons’ requires: “Each State Party shall consider incorporating into its domestic legal system appropriate measures to provide protection against any unjustified treatment for any person who reports in good faith and on reasonable grounds to the competent authorities any facts concerning offences established in accordance with this Convention.”
Article 8 ‘Codes of conduct for public officials’, Article 13 ‘Participation of society,’ Article 32 ‘Protection of witnesses, experts and victims’ and Article 37 ‘Cooperation with law enforcement authorities’ (in particular para 4) are also relevant to protection of whistleblowers.
In the sphere of public administration, the functioning of which is governed by principles of legality and effectiveness of the government authorities, and also in that of private businesses whose size or turnover affects rights and the interests of the vast majority of the societies in which they operate, transparency should be the norm and secrecy the exception.
Cooperation from citizens and organised civil society groups in the disclosure of irregularities is one of the most effective measures for exposing and combating corruption and abuses which affect the whole society. Besides the moral, legal and political problems entailed by this, there are also technical problems and, as such, they need to be approached pragmatically in order to deal with them specifically and efficiently.
In addition, the present law, making a distinction between denunciation and disclosure seeks to go beyond articles 259 and 264 of the Criminal Procedural Code which formulate a distributed responsibility for the protection of the general interests, and correct the difficulty of compliance with these articles due to the exposure to which disclosing persons are subjected.
The express wording of Article 259 of the Spanish Criminal Procedure Act stipulates the obligation of any person who is witness to the perpetration of any crime against the public interest to disclose this immediately to the nearest trial judge, justice of the peace, at the regional or municipal level, or to a tax official. Moreover, Article 264 of the Act establishes that any person who, by any means not included among those mentioned in the preceding articles, has knowledge of the perpetration of the type of offence which should be prosecuted de ex-officio must disclose it to the Public Prosecutor, the Court with jurisdiction in the matter, a trial judge, a municipal judge, or police authority. However, it is not stipulated.
But as a general rule, whistleblowers who disclose information on breaches, or suspected breaches, do so at considerable personal risk and, accordingly, pay a high personal and professional price, although disclosing misconduct is essential for protecting the public interest as well as supporting accountability and integrity in both public and private sectors.
Hence, it is necessary to have a law which protects anybody who is privy to any kind of information on potential wrongdoing so that this person would be able to provide relevant information without reprisals. Without such protection, whistleblowers and people who assist them face any kind of possible retaliation—from lawsuits for alleged calumny and defamation, protection of personal data and intellectual property of embezzlers, through to harassment, mobbing and dismissal in the case of employees or executives in public and private corporations. They are subject to an overwhelming burden of costs and a variety of forms of injustice which deter most people from disclosing or making known unlawful conduct, irregularities and crimes.
Moreover, the difficulties entailed in providing proof and paying the costs of legal proceedings reveal a situation of asymmetry of forces between the public and institutions or corporations, making it impossible in practice for people to fulfil their duty as citizens to disclose any information on breaches of which they may be aware, as well as to disclose improper behaviour, irregularities or illegal activities.
The Law proposed here aims to strengthen monitoring and reporting systems for cases of wrongdoing in the private and public spheres. These are already offered in general by the legal system in the forms of witness protection and expert witnesses, but it is also deemed necessary to express and offer consistent protection to whistleblowers and facilitators or, in other words, any person who discloses threats and wrongdoing that could harm the public interest.
Legislation for protecting whistleblowers has existed in the Anglo-Saxon world since 1778. However, the first legal definition of the term “whistleblowing” came after Ralph Nader, the American political activist noted for his involvement in consumer protection, gave the term positive connotations in 1972 when he defined it as “an act of a man or woman who, believing that the public interest overrides the interest of the organization he serves, blows the whistle that the organization is involved in corrupt, illegal, fraudulent or harmful activity”. The Government Accountability Project defines whistleblowers as those who exercise free speech rights to challenge abuses of power that betray the public trust.
A 2014 EU Anti-Corruption Report (3 February) estimates that, “Corruption alone is estimated to cost the EU economy EUR 120 billion per year, just a little less than the annual budget of the European Union”. Public procurement is one of the areas of government that is most vulnerable to corruption, costing the EU 5.3 billion euros every year. The report also notes that, “Adequate whistleblowing mechanisms that codify processes within public administrations to allow official channels for reporting what they may perceive as irregularities or even illegal acts can help overcome detection problems inherent to corruption (and indeed in other areas).” These areas include basic rights.
A 2016 “Global Fraud Study” by ACFE (Association of Certified Fraud Examiners) which analyses more than 2,400 cases of fraud in 114 countries calculates that some 40 per cent of these have been disclosed by whistleblowers.
On 24 October 2017, the European Parliament adopted a European-wide resolution on legitimate measures to protect whistleblowers acting in the public interest when disclosing confidential information of companies and public bodies which gives evidence of irregularities and crimes. This resolution culminated with the adoption of the Directive (EU) 2019/1937, of the European Parliament and of the Council on the protection of persons reporting on breaches of Union law.
Disclosure of wrongdoing in the public interest is a form of freedom of expression as confirmed in by the European Court of Human Rights and enshrined in Article 10 of the European Convention on Human Rights, which is ratified by all EU member states.
Consequently, legal protection of whistleblowers is also reflecting the aim pursued in Article 151 of the Lisbon Treaty, taken in relation with Article 153, 1b, referring to “working conditions” and the EU law protects whistleblowers in its Directive on Money Laundering and Terrorism Financing.
The report pertaining to the Resolution “Legitimate measures to protect whistleblowers acting in the public interest”, approved in the European Parliament on 24 October 2017, includes some very important recommendations, as reflected both in the Directive and in the law, for measures contemplating the possibility of anonymous reports of wrongdoing, the possibility of direct disclosure to third parties including members of the press or NGOs, in addition to measures concerning professional, legal, physical and economic protection for whistleblowers reporting corruption and misconduct. The Directive contemplates strong, transversal protection of whistleblowers, embracing public and private sectors in order to favour the struggle against corruption and fraud and to reinforce justice, health, the environment and democracy.
The use of technological tools allows us to be more efficient in protecting the confidentiality and anonymity of those who provide relevant information. This makes it possible for us to correct this asymmetry. We must preserve the anonymity of private persons because they are vulnerable when they expose themselves to serve the common good.
The difference between anonymity and confidentiality resides in the fact that anonymity is the only way a source of information can wholly manage her or his own protection and the use that is made of the information. While confidentiality rights must reflect the Directive’s best practice requirements, in practice those safeguards have been unreliable. The weaknesses and porosity of disclosing systems based solely on confidentiality have been amply demonstrated. Besides, there are additional and evident dangers in centralising all the power (information) in just a few hands, namely those of company directors and senior office holders in the public administration.
It is obvious that companies and institutions must meet their obligations for transparency and implement systems for monitoring irregularities. However, even so, it is not possible to avoid abuse by trusting in some sort of self-regulation since fraud and corruption tend to be located in the privileged echelons of these internal systems. Hence, we must take advantage of the opportunities now being held out by technology and outline channels enabling a distributed citizen monitoring and disclosure.
Anonymity is the more robust protection that can be offered to a citizen whistleblower. This has been recognised by the Public Prosecutor in Spain since 1993, and also in a range of provisions in the legal system as a just and necessary type of channel. A similar view is taken by organisations like the United Nations, for example in its 2015 Report on Encryption, Anonymity, and the Human Rights Framework.
The draft Law presented here is divided into five titles, starting with an Introductory Title, which explains that the aim of the Law is none other than to establish measures for the protection of people who disclose information concerning illegal or bad practices which jeopardise the public interest. A related objective is to regulate disclosing channels for internal and external disclosures of wrongdoing in the administration, companies and entities, as well as the consequences which might be incurred by non-observance in the domain of penalty procedure, and thereby aspiring to introduce measures that can be applied from a position of social consensus to put an end to systematic abuse from the ethical, democratic, legal and social perspectives.
Title I, General Provisions, defines the subjective scope of the Law’s application (Chapter I), for example the kinds of information on breaches for the enforcement purposes of the Law, and which people are deemed to be whistleblowers and facilitators (Chapter II). The protection must cover not only whistleblowers who are privy to information concerning fraud and corrupt practices in the public and private corporations covered by the present Law, but also to whistleblower facilitators, these including physical persons and legal entities such as NGOs, citizen platforms, victims and the media, inter alia, which are often essential in order to permit or enable a disclosure made by a whistleblower or any person disclosing information on breaches. Using facilitators as a cover is a common practice among whistleblowers and anyone disclosing information on breaches when they find someone who will guarantee their anonymity and offer some protection of their person and their family. Hence the Law’s primary objective, in accordance with the system of guarantees for whistleblowers, is also to offer protection for disclosers and facilitators involved in the case.
On the other hand, although in other countries, such as the United States or Germany, the person can be consider whistleblower even if he or she acts in exchange for economic compensation, in the Spanish contest, with a high degree of corruption, It has been considered more appropriate to omit this possibility so that the criterion of reasonable belief of the truthfulness of the information could not be clouded by this assumption and in no case we must enter into the assessment of the practical or ethical motivations of the whistleblower.
Chapter I of Title II, Rights and Responsibilities of Whistleblowers and Facilitators, stipulates the rights of and guarantees for whistleblowers and facilitators disclosing relevant information on suspected or actual wrongdoing, from the basic right of personal and family security (Article 6) to the right to confidentiality and anonymity as the whistleblower’s basic tools (Article 7), in addition to the right to information and case files, and to attend procedural actions resulting from disclosing information on breaches (Article 8), and the right to free legal advice (Article 9) as guarantees of being able to face legal procedures that might be initiated against the whistleblower as a consequence of disclosures of information on breaches and that would otherwise constitute an economic impediment to disclosing fraud, corruption and other crimes.
Chapter II details specific measures for protecting the employment and economic activity of whistleblowers as these tend to be the most usual targets in reprisals when citizens disclose wrongdoing. The fact that a whistleblower might be part of an organic or corporate structure that is affected by irregularities or unlawful activity is taken into account, as is the possibility that this may not be the case, or that the whistleblower may be self-employed.
Chapter III, concerned with the other side of this system of rights and guarantees, establishes that deliberately disclosing publicly information knowingly false is not protected under this Law.
Finally, to continue protecting whistleblowers, the law foresees the application of a new qualified attenuating circumstance to decrease their conviction by one or two degrees when they disclose information on wrongdoings in which they have been involved, by virtue of the collaboration that the disclosure entails.
Title III is concerned with information systems and disclosing channels for disclosure to be used by whistleblowers, giving priority to their freedom of choice (Article 18) and respecting the pace of introducing internal systems for disclosing information on breaches in corporations and public and private entities, while always guaranteeing that the disclosing channels made available to whistleblowers will be anonymous and secure and, failing that, ensuring that they are informed of the absence of these assurances (Article 14) so that citizens will be informed in advance of the risks they will be taking and the kinds of protection they will be afforded.
Title IV focuses on the creation of an Independent Authority for the Protection of Whistleblowers and Facilitators, which will ensure that whistleblowers and facilitators do not suffer any form of isolation, persecution or worsening of working or professional conditions, or any measure involving any form of prejudice or discrimination, in addition to providing them with legal assistance and legal representation in judicial and administrative proceedings that may result from the disclosure.
Finally, Title V establishes the application of a penalty system with regard to protection of whistleblowers, with the definition of a set of offences (Article 37) and penalties (Article 38) and penalties (Article 39) with a view to dissuading those affected by disclosures of crimes and infractions from taking reprisals against whistleblowers, while also punishing such conduct and indemnifying victims when reprisals have already occurred. The catalogue of offences and penalties established will be applied by the Independent Authority for the Protection of Whistleblowers and Facilitators.
Article 1.- Objective.
1. The aim of this Law is to establish measures to protect those ns or malfeasance which affect the public interest or defeat the object or the purpose of the State and European Union rules, and which have occurred, are occurring or are likely to occur, within public administrations, the public sector and public or private companies or entities.
2. This Law also regulates information systems and disclosing channels for disclosing wrongdoing, established by the public administration or by private companies or entities, in order to receive such disclosures.
3. The Law regulates the administrative bodies responsible for receiving disclosures of possible wrongdoing, ensuring that the protection measures enshrined herein are duly complied with, and for supervising the procedures for the verification of the disclosed information.
4. Finally, the Law establishes the regime of infractions and applicable sanctions for the infringement of its content.
TITLE I. GENERAL PROVISIONS
CHAPTER I. SCOPE OF THE LAW
Article 2.- Subjective scope of application.
1. The following administrations and legal entities shall establish anonymous and secure internal and external disclosing channels, complying with the obligations set in Title III:
a) The National State Administration and the Administrations of the Autonomous Communities, of the cities of Ceuta and Melilla, and of other entities comprising Local Administration.
b) The managing bodies and joint services of Social Security and also mutual insurance companies for accidents at work and occupational illnesses working with Social Security.
c) National and regional public law bodies with their own legal personality, autonomous organisms, State Agencies, and public law bodies which, being operationally independent or with a special autonomy recognised by law, are responsible for external regulatory and supervisory functions with regard to a particular sector or activity, including Independent Authorities.
d) National and regional Ombudsmans.
e) The General Council of the Judiciary and the Attorney General’s Office.
2. The following legal entities shall also establish secure internal disclosing channels, complying with the obligations set in Title III:
a) Political parties, trade-unions and business organisations.
b) Companies in whose share capital the direct or indirect participation of the entities provided for in this article exceeds 50 percent; foundations and associations set up by the administrations, bodies and entities provided for in this article.
c) State administrations, Regional administrations, Departmental administrations and Municipalities with more than 10,000 residents, not included in the previous section, and in any case, the Household of HM King, the Congress od Deputies, the Senate, the Constitutional Court, the Bank of Spain, the Council of State, the Court of Audit, the Economic and Social council and analogous regional institutions.
d) Private legal entities with more than 50 employees, or private legal entities of any size operating in the area of financial services or vulnerable to money laundering.
3. Public administrations and legal entities not included in the previous sections, both in the public or private sectors, shall also comply with and respect the rights and obligations established for in this Law in order to protect whistleblowers and facilitators.
4. Any other administrations or entities, public or private, including but not limited to, the media, non-governmental organisations, trade unions, members of legislative chambers, professional organizations and associations, may also establish external disclosing channels.
CHAPTER II. DEFINITIONS
Article 3.- Definitions and subjective scope of protection.
For the purposes of this Law, the following definitions shall apply:
a) A whistleblower (reporting person-whistleblower): It is a disclosing person, that is, any natural person who, having reasonable belief at the time of the disclosure about the truthfulness of the information on breaches in the public interest defined in article 4 and letter e) of this article, reports, discloses or notifies it in accordance with this law to a third party or third parties, to others who may have supporting evidence, to an administration, the judiciary, the public prosecutor, through the management line, through a disclosing channel especially established for this purpose, or through a public disclosure.
The motivation of the whistleblower is irrelevant, except to assess the credibility of the disclosure.
The disclosures covered by this Law are not considered to be complaints within the meaning of the Criminal Procedure Code. Therefore, the whistleblower will not be considered a claimant with the characteristics the Code indicates, among other causes because it will not be necessary to disclose his or her identity, without this fact violating the rights of defence or other rights of the persons concerned.
b) Facilitator: a natural person or legal entity who or which contributes, assists or aids the whistleblower to reveal or make public information on breaches, including, but not limited to the following: civil society organizations, professional bodies or associations, unions, journalists, journalist organizations and lawyers.
c) Channels for disclosing wrongdoing or disclosing channels (for complaints-reports done by whistleblowers): systems or mechanisms for communicating and conveying information, defined and regulated in Title III of this Act, that are made available to any person in possession of information on breaches. These channels can be internal, when they are established by the administration or private entity in order to receive disclosures of wrongdoing in their performance and sphere of activity, or they can be external, when they take the form of channels enabled by any administration, entity or platform for the communication and reception of disclosures.
The fact that disclosing channels are enabled do not override the protection to whistleblowers that do not use them to reveal, notify or disclose information on breaches, by, for example disclosing to supervisors or the line management, or when they disclose information as required by job duties, or they disclose information to a facilitator or anyone that can provide relevant information, investigate or take action on the alleged misconduct.
d) Public disclosure: making information on breaches available to the public domain.
e) Public interest: The scope of application of this law is delimited by considering public interest any act or omission that occurs, affects or is performed in or by:
1) the public administration and organizations depending on or controlled by the public administration;
2) any person or entity affecting more than 10% of the population of a legal constituency.
f) Retaliation: any direct or indirect discriminatory act or omission prompted by the internal or external disclosure or by public disclosure, and which causes or may cause unjustified detriment to the whistleblower and/or facilitator.
g) Concerned person: natural or legal person who is referred to in the disclosure as a person to whom the breach is attributed or with which he or she is associated.
Article 4.- Information on breaches.
1. Information on breaches in the public interest, as defined in article 3.e), includes any relevant information with preliminary evidence concerning flagrant, actual, suspected or potential illegal practices, abuses, wrongdoing, gross waste and gross mismanagement, substantial and specific threats, other breaches of laws or rules, or harm, that is at the stage of attempt, has occurred, is occurring or is likely to occur, within or outside State borders, in, but not limited to, all the following areas:
a) Any criminal offences, whether intentional or reckless or negligent;
b) Any human rights violations, attacks on fundamental freedoms, violations of workers’ rights, health, safety and safe working conditions, and other social rights as well as on the rule of law;
c) Accidents, disasters, natural hazards and other emergencies;
d) Practices entailing risks to human life and health, or any other threat to security or physical integrity, public health, transport safety, food safety and animal health, consumer and user rights, national and global security, radiation protection and nuclear safety, privacy and personal data protection, security of network and information systems and the protection of the environment;
e) Wrongdoing in the administrative or corporate sphere, in public or private entities, related with abuse of authority, conflicts of interest, corruption, embezzlement of public funds, prevarication, influence peddling, tax avoidance and fraud, illicit financial flows, financial responsibility and security, infringements of competition law and open competition, and rules regarding State’s aid and subsidies, as well as infringements relating to financial services, products and markets, and prevention of money laundering and terrorist financing, among others;
f) Disciplinary or administrative misconduct with regards to privacy, data protection, or any other act of negligence or omission by government agencies or public authorities or any of their employees, legal entities, their officials and their staff, abuse of power, abuse of authority, gross mismanagement, conflicts of interest, miscarriages of justice, breaches of legal obligations;
g) Acts to conceal or cover up any of these breaches;
h) Any other information not covered in the preceding sections which reveals harm or a threat to the public interest;
i) In any case, it can be considered information on breaches the infringements falling within the scope of the Union acts, and subsequent amendments, set out in the Annex (Parts I and II) to the Directive (EU) 2019/1937, of the European Parliament and of the Council on the protection of persons disclosing on breaches of Union law.
2. It will not be an obstacle for the communication and reception of the information on breaches the fact that it includes:
a) Personal data or special categories of personal data, as defined by the Organic Law 3/2018, of 5 December, on Personal Data Protection and guarantee of digital rights, under the European Regulation 2016/679 of the European Parliament and of the Council, of 27 April 2016, General Data Protection Regulation, and according to the judgment of the European Court of Human Rights on the Hungarian Helsinki Committee case regarding the FOI, in order to guarantee full respect for the right to information.
In the event that the information is made public, this exception will only cover personal information directly related to the alleged illegal actions (e.g. the identification – name of the person/s –). The personal data related to the private sphere that does not provide any informative value (e.g.– personal telephone numbers, email address, home address, …) will be omitted. The compliance with this condition is responsibility of who publishes the information.
The exception will not extend in any case to the publication of information related to third parties to which they are not in any way attributable any wrongdoing. These people have to remain unidentifiable. The fulfilment of this reservation will be under the responsibility of the person who makes the publication.
When this condition is fulfilled, the disclosure shall not be considered defamation, slander, libel or a prejudice to the honour and privacy of the affected person.
b) Secrets, as defined by Organic Law 10/1995, 23 November, of the Criminal Code.
c) Trade secrets, as defined by Law 1/2019, 20 February, of Trade Secrets the Directive (EU) 2016/943 of the European Parliament and of the Council, of 8 June 2016, on the protection of undisclosed know-how and business information (trade secrets) against their unlawful acquisition, use and disclosure.
d) Revelations, as defined by Law 10/2010, 28 April, on Prevention of Money Laundering and Financing of Terrorism and Directive 2005/60/EC of the European Parliament and of the Council, of 26 October 2005, on the prevention of the use of the financial system for the purposes of money laundering and terrorist financing.
3. The fact that the information on breaches is classified as protected data, according to the Intellectual Property Legislation, is not an impediment to receive, communicate and disclose such information.
4. The fact that the information on breaches is protected by the professional, commercial and business rules applicable is not an impediment to receive, communicate and disclose such information when it is part of a protected disclosure.
5. Access to information on breaches shall enjoy immunity from civil, administrative or labour liability, both in cases where, the whistleblowers reveal the content of documents to which they have lawful access even when their disclosure constitutes a contract infringement or other clauses concerning the property of the information, as well as in cases where they make copies of documents to which the whistleblower does not usually have access, for example, when the whistleblower accesses the emails of a co-worker or the files of a department to which he or she does not normally have access.
The source of the information shall not be considered when establishing its legal qualification as information on breaches.
6. The disclosure of information on breaches according to this Law does not constitute breach of contractual rules or clauses on confidentiality, secrets, intellectual property or data protection, provided in any kind of contract, governed by civil law, corporate law, administrative law or labour law, and thus, the whistleblower shall not be considered liable for its infringement according to civil, criminal or disciplinary rules applicable.
7. Any contractual clause that purports to limit or prohibit someone from making a protected disclosure or to limit access to the right for protection for disclosing information on breaches shall be declared void.
8. In legal proceedings in which the damage suffered by the whistleblower and/or facilitator as a result of retaliation that has resulted from the communication or disclosure of information on breaches made by him/her, it shall be presumed that the damage was caused in retaliation for the communication or disclosure. In such cases, it shall be for the person who carried out the harmful action to prove that this measure was based on duly justified and fair grounds and was not linked in any way to the disclosure.
9. In cases where information on breaches is classified under categories of national security, official or military secrets, or classified information, professional secrecy and of communications between clients and their lawyers, professional secrecy and of communications between health professionals and their patients, secrecy of judicial deliberations, this information may be received and communicated but it cannot be indiscriminately published or the object of public disclosure. The necessary precautions shall be taken to ensure that national security will not be jeopardised when disclosing the breaches. Public disclosure is deemed justified in cases of urgent or serious threats to public health, national security and defence, and the environment.
TITLE II. RIGHTS AND RESPONSIBILITIES OF WHISTLEBLOWERS AND FACILITATORS
CHAPTER I. RIGHTS AND GUARANTEES OF WHISTLEBLOWERS AND FACILITATORS
Article 5.- Rights assisting whistleblowers and facilitators.
The rights to security, anonymity and confidentiality, even against the people receiving and managing the process resulting from the communication of the information on breaches, access to case files and procedural action, legal advice and indemnity, are guaranteed to whistleblowers and facilitators. In any case, the rights and remedies provided in this Law may not be waived or limited by any agreement, policy, form or condition of employment, including a pre-dispute arbitration agreement.
Article 6.- Right to security and prohibition on retaliation.
1. Any form of retaliation is prohibited, whether direct or indirect, including discrimination, threats, recommendations, and attempts of retaliation, against the person, family, colleagues, co-workers or managers, or properties or organizations with which the whistleblower and/or facilitator is connected.
2. Whistleblowers and facilitators have the right to receive police protection. All measures of preventive protection stipulated in the Law on Protection of Witnesses and Experts in Criminal Cases (Title IV) and in the Victim’s Statute must be applied to stop and avoid threats, dangers and retaliation against the whistleblower and/or the facilitator, their physical integrity or their goods.
3. The same measures will be applied, when necessary, to spouses, spousal equivalents, as well as to relatives of both by kinship ties until the second degree of consanguinity or affinity as well as to any others retaliated against because of assistance of being associated with the whistleblower and/or facilitator.
Article 7.- The whistleblower’s right to confidentiality and anonymity.
1. Public authorities shall guarantee the whistleblower’s and facilitator’s rights to confidentiality and protection of their anonymity, if chosen by them, and that their identity will not be revealed to anyone without their explicit consent. This right is also applicable to other data and information from which the identity of the whistleblower and/or the facilitator can be inferred directly or indirectly. If necessary due to nondiscretionary reasons such as a court order to release a whistleblower’s identity or identifying information, or that information is released due to a mistake, the public authority shall provide immediate notice to the whistleblower. The mistake will be severely sanctioned according to articles 37 and 38.
2. Facilitators and any other public or private individuals to whom the whistleblower has revealed his or her identity while also clearly indicating the desire that to remain anonymous are obliged to respect this confidentiality and not to reveal the whistleblower’s identity under any circumstances.
3. Disclosng channels will protect these rights in accordance with the conditions set out in Articles 14 and following of this Law.
4. Whistleblowers can use a disclosing channel to communicate the information on breaches in conditions of confidentiality, which is to say making their identity known but clearly indicating that they do not wish it to be made public, shared without their express consent, or enabling the traceability of their identity (providing information from which it can be deduced, for example, leaving their IP visible or not using an anonymous and secure channel). In this case, personal data or any other information revealing the identity of the whistleblower cannot be divulged without his or her express consent. All the authorized personnel or the personnel having access to the information received through a disclosing channel, even in an unauthorized or incidental manner, shall be bound by the terms set out in this Article and by the responsibilities arising from the commission of the offences defined as discovery and disclosure of secrets.
5. With the exception indicated in the first paragraph of this Article, only the whistleblower can decide about the eventual waiver to anonymity and/or confidentiality. This may occur at any point during the proceedings.
6. If an anonymous whistleblower is subsequently identified, he or she shall nonetheless qualify for protection under this Act.
Article 8.- Right to information, access to case files, and concerning procedural actions.
1. All whistleblowers, including those who have chosen to disclose information anonymously or confidentially, have the right to be informed about the current situation and results of any inquiry, inspection and investigation which may have arisen from their disclosures, with the exception for information which may jeopardise the investigations.
2. Whistleblowers’ right of access to this information will be guaranteed ex officio, or at the request of the whistleblower so that he or she will be informed of the state of proceedings at least every ninety calendar days. In the case of anonymous whistleblowers, this obligation can only be fulfilled if the whistleblower has used or agrees to use the anonymous and secure channel with the structure indicated in Article 14.3.
Article 9.- Right to legal advice and defence
1. Whistleblowers and facilitators, or people considering to disclose information on breaches have the right to receive free prior legal advice services, tailored to their specific case, by the Independent Authority for the Protection of Whistleblowers and Bar Associations, at least concerning the information established in Article 16, in the terms laid down in Article 23.
In any case, the members assigned to this service must maintain the confidentiality and secrecy of the information to which they gain access. Under no circumstances may these services be subject to retaliations that affect their day-to-day performance. Public authorities will assure that facilitators do not suffer from retaliation that may affect their day-to-day performance when they provide prior legal advice to whistleblowers or other facilitators.
2. Whistleblowers and facilitators have the right to be advised and assisted by a practising lawyer in all proceedings related with communication of information on breaches and in all actions deriving from or resulting from it, as indicated in article 23.
3. From the beginning of the procedure and irrespective of the existence of economic resources to litigate, whistleblowers and facilitators have the right to immediate pro bono legal advice and defence when being charged or investigated in legal proceedings linked with, deriving from, or that are a consequence of their status as such. In any case, it will be the same lawyer appointed ex officio who will represent the whistleblower or facilitator in any procedure derived or consequence of the communication of the information on breaches, both in the primary instance and in the seat of appeal.
4. Whistleblowers and facilitators have the status of interested parties in all procedures arising from their disclosure of information, being thus protected and considered according to this Act in all investigations and other proceedings arising out of their disclosure. These procedures will be contradictory by nature, and will guarantee, when applicable, confidentiality or the anonymity of the whistleblowers’ identity.
5. Bar Associations, will guarantee the specific mandatory training of the lawyers registered for ex officio duty that represent and defend whistleblowers and facilitators so that they provide effective advice and defence in cases involving corruption and whistleblowers’ and facilitators’ protection.
6. Bar Associations will adopt the necessary measures for the urgent designation of an ex officio lawyer in procedures to be initiated at the request of the whistleblower or the facilitator.
CHAPTER II. MEASURES TO PROTECT EMPLOYMENT AND ECONOMIC ACTIVITY OF WHISTLEBLOWERS AND FACILITATORS
Article 10.- Common measures.
1. Whistleblowers and facilitators have the right to occupational and professional indemnity, among others that their working relationship and contracts and individual agreements signed when self-employed with employers and public or private contractors who should not present obstacles to the whistleblower’s and facilitator’s employment, or professional, economic, social, scientific, academic, or any other kind of activity.
2. When the whistleblower and/or facilitator suffer damage following disclosure of wrongdoing as a result of arbitrary decisions, acts or omissions, by a public servant, employee, business person, or any member of a public or private institution or entity when exercising their authority, the whistleblower or facilitator will be compensated at the cost of this public or private institution or entity, by means of the appropriate procedure for the objective assessment of damages before the corresponding instance or court, necessary to eliminate all the direct and indirect effects of retaliation, and where appropriate precautionary measures such as interim or injunctive relief may be taken to protect the whistleblower or facilitator from the consequences of such decisions, acts or omissions.
Article 11.- Measures to protect civil servant whistleblowers and/or facilitators or employed and Social Security provisions.
When the whistleblower and/or facilitator is an applicant, current or former civil servant, employee, including, but not limited to part-time, permanent or temporary worker, or member of any private or public company or institution, he or she will enjoy the following rights:
a) The right not to be sanctioned by, or to suffer any kind of reprisal from, , the employer, manager, or any other employee or member of the company or private entity concerned, or the administration or private entity depending or controlled by the public administration, by means of dismissal, loss of civil service status, penalties, suspension, transfer, demotion to another position, demotion to another position with a lower salary, deterioration in working conditions or any other similar measures, or in the form of any threat to apply such measures;
b) The right, if disclosing the imposition of any penalty or reprisal among those listed in the previous section, and, in accordance with the terms established in the Basic Statute of Public Employees or the Statute of Workers Rights, to reduce or reorganise his or her working schedule, to geographical mobility, to transfer to another workplace, to voluntary unpaid leave with job security, and to termination of employment with the legal compensation owing to the employer’s serious breach of his or her obligations;
c) The right, if dismissed, to opt for immediate restoration of his or her job or status as a civil servant in the latter case in accordance with the terms of the Royal Decree 2669/1998, of 11 December, which approves the procedure to be followed for rehabilitation of civil servants in the public administration, or for payment of compensation for wrongful dismissal, and also the procedural salary in both cases. The restoration shall take place under the former conditions, or to payment of compensation for wrongful dismissal, and to the procedural salary in both cases. Moreover, should the whistleblower or facilitator be dismissed, he or she has the right to decide between immediate restoration to his or her position, or payment of compensation for wrongful dismissal, in addition to the procedural salary in both cases.
d) The right, if working conditions are substantially modified, to immediate restoration of the former conditions, and also to receive the difference in unpaid income or emoluments during the period of modification should this be the case;
e) Under the terms stipulated in the General Social Security Law, suspension and termination of employment in the public sector, or of a job contract as described in the previous sections, will give rise to a situation of official unemployment. The period of suspension will be regarded as one of effective contributions in terms of Social Security and unemployment benefits.
Article 12.- Measures to protect the economic or professional activity of the self-employed whistleblowers and/or facilitators.
Whistleblowers and/or facilitators who are self-employed professionals or workers obliged to cease their activity to make their protection effective, will be exempted from the obligation to pay Social Security contributions or the mutual insurance company in the case of alternative regimes to Social Security, for a period of six months during which they will be considered as effective contributors and eligible for Social Security benefits. In addition, their situation will be considered as equivalent to being registered with Social Security.
CHAPTER III. LIABILITY REGIME ON RESPONSIBILITY OF WHISTLEBLOWERS AND FACILITATORS WHEN DISCLOSING INFORMATION ON BREACHES
Article 13 .- On the whistleblowers and facilitators liability.
1. The whistleblower and facilitator must have only reasonable belief of the plausibility and reliability of the information they disclose, which, as indicated in Article 4.1 should be relevant and with preliminary evidence. However, verifying the information disclosed and determining whether there is enough information to investigate further potential wrongdoing, will be the responsibility of the organism or institution carrying out the resulting investigation.
2. If the investigation into the alleged facts by a whistleblower concludes that the law was not breached or that there was no wrongdoing affecting the public interest, there will be no negative consequences for either the whistleblower or the facilitator and they will not suffer any penalty or any kind of punitive action, unless it is proven that the individual deliberately disclosed information knowingly false at the time of the disclosure.
3. With the exception indicated above, the whistleblower and the facilitator will not be held responsible for any harm or damage that may arise from communication or public disclosure of the information disclosed or the actions performed to disclose it, and neither will they incur any type of liability or civil or criminal disciplinary action which may derive from these circumstances and, in particular, including those pertaining to possible attacks on honour and reputation, or infringement of regulations concerning copyright, secrets, trade secrets, prevention of money laundering and protection of personal data.
4. The qualified attenuating circumstance provided by article 21.7 of the Criminal Code shall be applicable to the whistleblower and/or facilitator that have been involved in the disclosed wrongdoings, in order to decrease their conviction by one or two degrees.
TITLE III. INFORMATION SYSTEMS OR DISCLOSING CHANNELS FOR DISCLOSING OF WRONGDOING
Article 14.- Protection of confidentiality or anonymity.
1. Disclosing channels must be equipped with mechanisms that provide protection of the anonymity or confidentiality of whistleblowers and facilitators.
2. Information regarding access to the disclosing channel, the way anonymity is protected, and the limits thereof must be explained in detail so that a whistleblower has all the information he or she requires, and to ensure that he or she will not be led into error owing to lack of information or for not complying with the information requirements established in this Article and in Article 16.
This information shall be provided by disclosing channel’s managers in a concise, fair, transparent, intelligible and easily accessible and understandable manner, in clear and simple language, made available in writing or by other means, including electronic means.
Disclosing channels’ managers, taking into account the specific circumstances and context in which the information on breaches is disclosed, shall provide as many complementary information necessary to guarantee the protection of the anonymity or confidentiality of the whistleblower and/or facilitator.
3. To this end, only those channels can be called anonymous and secure disclosing channels mailboxes, telephone lines or mechanisms of electronic communication which can ensure secure access through anonymous browsing and connection. They must clearly explain previously how to use them without exposing one’s identity – including “electronic identity” (Internet Protocol IP) – and how to eliminate metadata so that the documents disclosed do not jeopardise the whistleblower’s anonymity. They must provide the whistleblower with an identifying code or some other kind of secure procedure for following up subsequent action and continuing contact with the whistleblower in a way that does not put his or her anonymity at risk.
Administrations or entities responsible for managing channels will apply adequate technical and organisational measures for protecting data whenever it is collected, conveyed or stored.
4. Channels which do not meet the stipulations described in the section above cannot be publicised as being anonymous and secure and, should this occur, they may be punishable for affecting the whistleblower’s right to indemnity. Disclosing channels that while granting only confidentiality do not inform about it may also be punishable. In that sense, confidential disclosing channels shall inform that they are not anonymous and secure channels.
5. In any case, right to confidentiality and anonymity as provided for in Article 7 shall be respected.
Article 15.- Types of disclosing channels.
The disclosing channels provided public and private entities complying with the features of paragraph 3 of the previous article, shall allow for disclosing in writing and/or orally by the following means:
a) By post;
b) Via physical complaint mailboxes;
c) Via an online platform (the entity’s intranet or the Internet);
d) By telephone or other voice messaging systems.
Article 16.- Information about disclosing channels.
1. Disclosing channels’ managers shall publish in a concise, accurate, transparent, intelligible, easy to access and understandable manner, with a clear and simple language, and in a separate, identifiable and accessible section of its website, at least, the following information:
a) the conditions under which whistleblowers and facilitators qualify for protection.
b) the contact details for using the disclosing channels managed by the private or public entity, and whether it is an anonymous and secure channel that complies with the requirements established by Article 14.3, or when this is not the case and just guarantees the obliged confidentiality, must warn of the possible risks that this might arise for the whistleblower when using the channel for disclosing information on breaches.
c) the procedures applicable to the disclosing of breaches, including the manner in which the entity may request the whistleblower to clarify the information disclosed or to provide additional information, the timeframe for giving feedback to the whistleblower, the type and content of this feedback and the possible appeals against it;
d) the confidentiality and data protection regime applicable to disclosures;
e) The nature of the follow-up that will be given to the report;
f) the remedies and procedures available against retaliation and possibilities to receive confidential advice for persons contemplating making a disclosure;
g) a statement clearly explaining the conditions under which whistleblowers and facilitators would not incur liability in accordance with Article 4;
h) Channels’ managers must be able to provide prior advice on the content of this Law to those who intend to make a report as a whistleblower or facilitator, on an event constituting a report.
2. Disclosing channels’ managers shall be able to provide prior advice about the content of this Law to persons contemplating making a disclosure in the condition of a whistleblower or facilitator, about information on breaches, including information about the conditions and procedures to disclose information on breaches before the competent authorities and, when necessary, to institutions, entities, offices or agencies of the European Union.
3. The entity responsible for the disclosing channel will inform, without this being an exhaustive list, its employees, contractors, temporary staff and users, of the existence of the disclosing channel or channels, along with the information provided in the previous sections.
This information can be published in a visible and accessible place, and be provided in the website of the entity, and may even be provided through staff training courses.
Article 17.- Disclosing procedure.
The disclosing and follow-up procedures must include and ensure compliance with the following aspects:
a) Maintenance of confidentiality of the identity of the whistleblower, or anonymity when applicable according to Article 7, and of any third party mentioned in the disclosure, and the provided information by the whistleblower, taking the necessary measures and preventing access to non-authorised staff members;
b) The disclosing channel shall ensure the durable storage of information, in accordance with Article 21, in order to permit future investigations;
c) The autonomy of the external disclosing channel that may or had to be installed by the public entity with respect to the internal disclosing channel;
d) The opportunity for the whistlelower to respond to denials of alleged misconduct.
e) An acknowledgment of receipt of the disclosure, within no more than seven days of that receipt if the information received includes the contact of the whistleblower or the facilitator,
I) After the analysis of the disclosed information by the whistleblower or the facilitator, by means of an attached constitutive declaration to the acknowledgment, the disclosing channel’s manager shall inform the whistleblower and/or facilitator about:
– If it considers there is enough information provided information to investigate further;
– Or that it considers the information provided does not include relevant information or consistent indications about a breach, which is why it considers the process closed. The whistleblower shall have the right to respond to any such preliminary determination.
When the whistleblower or facilitator do not agree with the decision of the disclosing channel’s manager, they may appeal to the Independent Authority for the Protection of Whistleblowers and Facilitators or to the competent Courts;
II) When the disclosing channel’s manager is not capable to analyse and assess the received information in order to issue the constitutive declaration to the acknowledgment, because of the volume of the information received, the manager can ask for the consent of the whistleblower and/or facilitator to dispatch it to the Independent Authority for the Protection of Whistleblowers and Facilitators so that it proceeds to conduct its follow-up.
Courts, the Public Prosecutor’s Office, and State Police and Security bodies cannot dispatch the information to the Authority, and shall investigate the disclosed information;
f) Where appropriate, the designation of one, or several, staff members, or a department or a third party, whom shall be impartial, as responsible for the reception of information via disclosing channels, so-called channel administrator.
I) When disclosing channels are operated by third parties authorized to receive information on breaches by the disclosing channels’ managers, principles of independence, confidentiality, data protection and secrecy must be respected along with informative obligations mentioned in Article 16;
II) The channel administrator will be in charge to diligently follow-up with the information on breaches, maintain the communication with the whistleblower, and when necessary, request additional information and maintain the whistleblower informed about the proceeding followed after the disclosing.
With the consent of the whistleblower, channel administrators will be responsible to submit the information on breaches to the competent authorities for investigation;
III) As a prerequisite, the channel administrator, shall be certified as completing professional specific training to manage the disclosing channels;
IV) All activities by staff to carry out responsibilities of the Disclosing Channel shall be protected conduct under this Act.
g) The entities responsible for the disclosing channel must ensure that, in the case that information on breaches is received through other channels of the public or private entity or by staff members, other than them, these will refer it to them preserving the confidentiality of the information without modifying its content.
Article 18.- Freedom of choice.
Without prejudice of the obligation of the State to encourage the use of internal disclosing channels as the first option to disclose information on breaches ensuring that these disclosing channels offer all guarantees of reliability, security, independence and effectiveness in the detection and lasting resolution of the disclosed illicit acts and abuses and the protection of the whistleblowers removing all kinds of risk of retaliation, the whistleblower is able to choose the most appropriate disclosing channel to communicate the information on breaches without necessarily having to use any specific disclosing channel in the first place or having to justify their choice, and without this representing any limitation of the rights and guarantees enshrined in this Law.
The whistleblower is not obligated to communicate through an internal disclosing channel, and retains all the rights of this Act for disclosing protected information to a supervisor, as part of job duties, to an Authority, to another witness who may have supporting relevant information, or any facilitator as defined in article 3.b of this Law.
Article 19.- Internal systems.
1. No later than 3 months after the acknowledgement of receipt, and then every three months, information shall be provided on the follow-up to the disclosed information on breaches and, in any event, its outcome. If no acknowledgement of receipt has been sent, this period shall begin to run on expiry of the period for issuing it. The whistleblower shall have the right to present comments included with the final report on completedness and reasonableness of the resolution for his or her concerns. The communication of the result must not affect European rules which include possible restrictions on the publication of decisions in the financial and tax field.
2. Private entities with more than 50 employees and less than 249 may share resources for the collection and investigation of disclosed information on breaches, without prejudice to compliance with confidentiality obligations, information about the procedure to the whistleblower and address the non-compliance detected. Disclosing channels may be shared between municipalities or by unions of municipalities, when it can be granted that the information received and directed to only one of them cannot be accessible by the others.
Article 20.- External systems.
1. No later than 3 months after the acknowledgement of receipt, and then every three months, information shall be provided on the follow-up to the disclosed information on breaches, and, in any event, its outcome. If no acknowledgement of receipt has been sent, this period shall begin to run on expiry of the period for issuing it. The whistleblower shall have the right to present comments included with the final report on completedness and reasonableness of the resolution for his or her concerns. The communication of the result must not affect European rules which include possible restrictions on the publication of decisions in the financial and tax field.
2. In the event of a large influx of disclosures, the administrators of external disclosing channels may prioritize those that disclose infringements of essential provisions that are within the scope of application of the Law or those that are likely to more seriously affect the public interest, without prejudice to compliance with the time limits established in Article 17 and paragraph 4 of this Article.
3. Any entity responsible for an external disclosing channel that receives information on breaches that it cannot follow up because it does not have the necessary powers, shall forward it to the competent authority without delay.
4. Entities responsible for external disclosing channels shall review the procedures established in accordance with this Chapter regularly, and at least once every three years. In this review they shall take into account the experience gained by them and by other entities and authorities and adapt their procedures accordingly.
Article 21.- Storage of information on breaches.
1. Channel managers of both internal and external disclosing channels must securely store all disclosures to ensure that they are accessible and that the information they contain can be used to apply the necessary enforcement or compliance measures. They must be stored for the strictly necessary and proportionate period of time, maintaining confidentiality in all cases and guaranteeing access only to authorised personnel.
2. When the disclosing channel consists of a telephone line or voice messaging system, the administrators of that disclosing channel, with the consent of the whistleblower, may document the disclosure recording the conversation in a durable and accessible format or by means of a transcription of the conversation made by the disclosing channel’s administrators. In the latter case, the whistleblower must be offered the possibility to verify, rectify and accept the transcript of the call, and if he so wishes, to sign it.
When the disclosing channel provided consists of a telephone or voice messaging system that does not allow recording, the disclosing channel’s manager’s personnel or administrators may document the disclosure precisely indicating the minutes of duration of the conversation, and must offer the whistleblower the to verify, rectify and accept said annotation.
3. When the whistleblower requests to meet personally with a member of the staff of the disclosing channel’s manager, the manager must ensure, with the consent of the whistleblower, that the accurate and complete records of the meeting are stored in a durable and accessible way, being able to document it through a recording of the conversation or through annotation and minutes, by the disclosing channel’s administrators, offering the whistleblower the possibility to verify, rectify and accept such annotation.
TITLE IV. INDEPENDENT AUTHORITY FOR THE PROTECTION OF WHISTLEBLOWERS AND FACILITATORS
CHAPTER I. GENERAL PROVISIONS
Article 22.- Subject matter and legal nature.
1. The Independent Authority for the Protection of Whistleblowers and Facilitators is configured as an entity of public law, with its own legal personality and full capacity to act for the fulfilment of its purposes.
2. The Authority acts with full independence and impartiality from public administrations in the exercise of its functions in its sphere of action, which corresponds to the scope of application of this Law.
3. The Authority shall be governed by the provisions of this Act. With regard to all that is not provided for in this Law and in its subsequent implementing regulations, the regulations in force on the legal system of the public sector, common administrative procedure, as well as the rest of the rules of general and special administrative law applicable to it, shall apply. In the absence of an administrative rule, common law shall apply. The Authority has discretion whether to act on behalf of a whistleblower seeking assistance,but does not have authority to take act contrary to the whistleblowers interest.
Article 23.- Purposes and functions.
The purposes and functions of the Authority are the following:
a) Act as an anonymous and secure external disclosing channel, in accordance with Article 14.3, for receiving disclosures with information on breaches;
b) As provided for in article 17, issue the acknowledgement of receipt of the disclosures with information on breaches received through the external disclosing channel provided for in the previous section and those transmitted to it by managers of internal or external disclosing channels;
c) The Authority must derive ex officio the information on breaches on which they have disclosed to the institutions, authorities and entities that are competent to carry out an investigation on it, and if applicable, process them and initiate the corresponding administrative or judicial procedures on the disclosed information on breaches;
d) Legally represent the whistleblower and/or facilitator in any judicial and/or administrative procedure derived from the disclosure in order to maintain his or her identity unrevealed and keeping his or her confidentiality;
e) Provide free legal assistance, in coordination with the Professional Associations, to the whistleblowers and facilitators. This legal assistance shall include advice on all aspects related to their disclosure, as well as legal representation and defence in any procedure in which the whistleblower and/or facilitator is a party, either for wanting to initiate it or for being a defendant in any procedure directly linked to the disclosure of information on breaches or cause of the reprisals undertaken with the intention of undermining their physical integrity, moral integrity, honour or public opinion on the whistleblower or facilitator.
Pro bono legal assistance by the Bar Associations will be provided in accordance with Article 9 of this Law and the rules applicable and will be requested by the Authority on behalf of the whistleblower and/or facilitator.
Without prejudice to this service, the Authority shall provide a permanent and effective legal aid service to duly advise whistleblowers or facilitators, or persons considering to disclose information on breaches, at least giving advice on the information contained in Article 16, so that they can make an informed decision on how and when to disclose. This prior legal assistance, covered by the rights of confidentiality, anonymity and protection of personal data, shall be able to be requested and provided through the disclosing channel provided for in paragraph a) of this Article to persons who request it anonymously;
f) At all times, the Authority shall ensure that whistleblowers and/or facilitators do not suffer, during or after its intervention, any type of isolation, persecution or worsening of working or professional conditions, or any type of measure involving any form of prejudice or discrimination. If the Authority is aware that they have been the object, directly or indirectly, of acts of intimidation or reprisals for the disclosure of information on breaches, it may exercise the corrective or recovery actions it considers, of which it shall leave a record in its annual report. In particular, at the request of the whistleblower and/or facilitator, the Authority may urge the competent body or entity to transfer him or her to another working position, provided that this does not prejudice his or her personal status and professional career and, exceptionally, it may also urge the competent body to grant leave for a specified period of time with maintenance of remuneration.
To that end, the Independent Authority for the Protection of Whistleblowers and Facilitators, as well as Courts and the Public Prosecutor’s Office, shall have the power to order and request ex officio, when appropriate, the application of appropriate provisional measures of protection and security where, in its opinion, there is a serious danger to the person, liberty or property of the whistleblower and/or facilitator, or the witness, the spouse or the person to whom he or she is linked by an analogous relationship of affectivity, or the ascendants, descendants or relatives of the same up to the second degree of consanguinity or affinity.
The competent authority, shall order and maintain these measures beyond the resolution of judicial and/or administrative proceedings as a consequence of the disclosing. Protection may be maintained, by means of a resolution of the Authority, even beyond the culmination of the processes in which the Authority intervenes;
g) Collaborate with the managers and administrators of internal and external disclosing channels for the effective protection of whistleblowers and/or facilitators who have used their disclosing channels;
h) Collaborate with the managers and administrators of internal and external disclosing channels to ensure their effectiveness and the protection of whistleblowers and facilitators, with the establishment of clear and stable prior criteria for the control of irregularities within organizations and institutions. To ensure compliance with them, the Authority may formulate requirements addressed to the managers disclosing channels to adapt or modify their protocols or procedures of action;
i) Collaborate in the periodic review, and subsequent adaptation, of the disclosing procedures established by the managers of disclosing channels, which must be carried out at least once every three years. In this regard, the Authority shall promote spaces for regular meetings and exchanges with civil society, where its contributions to improving disclosing procedures shall be collected.
In any case, the Authority shall ensure the effectiveness, integrity and efficiency of these procedures from the point of view of the protection of whistleblowers and facilitators and shall investigate and sanction any possible complaints of ineffectiveness or abuse on the part of managers and administrators of disclosing channels or third parties;
j) Supervise and collaborate with the managers of internal and external disclosing channels for the training of the channel’s administrators and manager’s personnel about: the content of the Law on full protection of Whistleblowers and the technical, organizational and legal measures to be used to guarantee the anonymity of whistleblowers and facilitators and their protection. In addition, the Authority may publish training and specialized advisory guides on the protection of whistleblowers and facilitators that include these aspects;
k) Contribute to the creation of a social culture of institutional transparency, corruption and the concealment of infractions committed by economic and social actors, both public and private;
l) Collaborate and draw up action proposals with bodies that have similar or analogous functions in the State, Autonomous Communities, in the European Union or in the International sphere;
m) Mandatory reporting on regulatory projects developing this Law or other regulatory projects related to its object;
n) Exercise the sanctioning power in relation to the infractions and sanctions established in this Law;
o) All other powers legally attributed to it.
Article 24.- Delimitation of functions and collaboration.
1. It is understood in any case that the functions of the Authority are, without prejudice to those exercised, in accordance with the specific regulatory regulations, by the State Administration, the Court of Audit, the Ombudsman, as well as institutions equivalent in the State or Autonomous Community level, with control, supervision and protectorate functions included in the scope of application of this Law.
2. The Authority, in accordance with article 23.c), shall ex officio send all the information on breaches at its disposal and shall provide the necessary support to the competent institution or body to carry out the corresponding investigation or inspection, without revealing the identity of the anonymous whistleblower and/or facilitator. The whistleblower shall have the right as part of the record to comment on the competent institution’s resolution.
3. In carrying out its tasks, the Authority may provide collaboration, assistance and exchange of information with other institutions, bodies or public entities by means of joint plans and programmes, conventions and protocols for functional collaboration, within the framework of the applicable regulations.
4. The Authority does not have competence over the functions and matters that correspond to the judicial authority, the public prosecutor’s office and the judicial police, nor can it investigate the same facts that have been the object of its investigations. In the event that the judicial authority or the prosecutor initiates a procedure to determine the penal relief of certain facts derived ex officio by the Authority, the Authority shall represent the whistleblower and/or facilitator in these and in all the procedures that may derive from it in accordance with the provisions of this Law.
5. The Authority shall request from the judicial authority and the prosecutor’s office periodic information regarding the proceedings initiated at its request, in order to be able to inform the whistleblower and/or facilitator in accordance with Article 8.
CHAPTER II. THE PROCEDURE FOR THE PROTECTION OF WHISTLEBLOWERS AND FACILITATORS
Article 25 .- Duty of collaboration.
1. Public entities and private natural or juridical persons included in actions of the Authority shall promptly and diligently assist its requirements, and shall communicate to it, without undue delay, any information required and at their disposal relating to facts that are or may be within the Authority’s competence.
2. Staff working for public and private entities included in the Authority’s sphere of action who impede or hinder the exercise of their functions or who refuse to provide them with the reports, documents or files requested of them, shall incur disciplinary responsibilities.
Article 26.- Duty of proportionality and justification.
1. The information requested by the Authority from public entities and private natural or legal persons shall be that necessary to carry out its functions of protection and defence of the interests of the report and those functions set forth in Article 23.
2. The request by Authority personnel for more information than is necessary for the fulfilment of their duties in an unjustified manner shall result in the opening of an internal investigation and the initiation, if appropriate, of the pertinent disciplinary file.
Article 27.- Confidentiality and anonymity, personal data protection.
1. The actions of the Authority must ensure, in all cases, the maximum reserve to avoid prejudice to the whistleblower and/or facilitator, guaranteeing their anonymity, if this is the option chosen by the whistleblower or facilitator. With respect to the personal data that could constitute part of the information on breaches, the principles and guarantees established by the data protection regulations in force must be respected.
2. The staff of the Authority, in order to guarantee the confidentiality of the actions, is subject to the duty of secrecy over all the information they have access to because of their functions, a duty that persists even after they cease to hold office. Failure to comply with this duty shall give rise to the opening of an internal investigation and, where appropriate, to the initiation of the relevant disciplinary proceedings or legal proceedings commensurate with the seriousness of the offence committed.
3. The obligations of secrecy and maximum confidentiality are especially demanding on the identity of the whistleblower and/or facilitator, as well as the information contained in the report.
4. The Authority shall store and maintain custody of the information received in accordance with the indications set forth in Article 21.
CHAPTER III. THE RESULTS OF ITS ACTIVITY
Article 28 .- Annual report.
1. Annually, within the first three months, the Authority shall give an account of the activity carried out through a report that shall include the actions carried out during the previous year within the scope of its functions.
2. The report shall not contain any kind of personal data and references that allow the identification of the persons affected, except when they are already public as a consequence of a final criminal or administrative sentence.
3. The annual report shall be forwarded to the Congress of Deputies, after the Authority’s Director has appeared before the corresponding commission, and shall be made public through publication in an open format on the Authority’s website.
Article 29.- Recommendations and opinions.
The Authority may draw up recommendations and opinions on matters relating to the protection of whistleblowers and the use of information on breaches.
CHAPTER IV. HUMAN AND MATERIAL RESOURCES
Article 30 .- Personnel status of the Authority’s management.
1. The Authority shall be directed by a Director, who shall exercise the position with full independence, immobility and impartiality in the development of the functions and within the scope of the Authority’s own competencies, and shall always act with full submission to the law. The Director will have the condition of public authority and will be assimilated to a high position with the rank of general director.
2. The term of office of the Director is seven years from the date of his or her election by the Congress of Deputies and shall not be renewable.
3. The Director is elected by the Congress of Deputies among citizens of legal age who enjoy the full use of their civil and political rights and who meet the conditions of suitability, probity and recognized competence necessary to hold office. They must have more than ten years of activity related to the functional scope of the Authority.
4. Candidates for the post will be proposed to the Congress of Deputies by open consultation with citizens and by social organizations currently working against fraud and in favour of human rights. The consultation will give the possibility of proposing candidates and prioritizing them. Prioritization will not be binding but justification by the parliamentary groups shall be given if it is not taken into account. Candidates must appear before the relevant parliamentary committee as part of a public call for this purpose in order to be evaluated in relation to the conditions required for the post. The agreement reached in this committee will be transferred to the Plenary of the Congress.
5. The Director will be elected by the Plenary of the Congress by simple majority.
Article 31.- Incompatibilities.
1. The status of Director of the Authority is incompatible with the exercise of any other office or affiliation to any political party, trade unions or professional or business associations.
2. The regime of incompatibilities established by the legislation applicable to senior posts and the provisions of this law is applicable to the Director of the Authority.
3. The Director of the Authority, in a situation of incompatibility affecting him or her, must cease the incompatible activity within one month of the appointment and before taking office. If he or she does not do so, it is understood that he or she does not accept the appointment. In the case of supervening incompatibility, he must regularise his situation within a maximum period of one month.
Article 32.- Cessation.
1. The director of the Authority shall cease for any of the following reasons:
b) Termination of term of office;
c) Incompatibility supervened if the situation is not regularised within a maximum period of one month for that purpose;
d) Incapacity declared by final judicial decision;
e) Disqualification from the exercise of political rights declared by a final judicial decision;
f) Indictment with adoption of precautionary measures, trial or conviction by final judgement for the commission of an offence;
g) Notorious and serious negligence in the fulfilment of the obligations and duties of the office.
2. If the cause of cessation is the one determined by letter g) of paragraph 1, the dismissal of the Director must be proposed and approved by the relevant parliamentary committee. Before the vote in committee, the Director will be heard, and then the vote will proceed by the absolute majority of its members. The proposal for dismissal must be submitted to the Plenary of the Congress and approved by an absolute majority. In other cases, the Presidency of the Congress will be responsible for the dismissal.
3. Once the dismissal of the Director has taken place, the procedure for a new appointment begins. In the event of the cessation for the cause determined in letter b) of paragraph 1, the Director must continue in office until the new appointment is made. In the rest of the cases, until the new Director is appointed and takes office, the Presidency of the Congress shall appoint an interim Director from among the staff of the Authority.
4. To ensure due publicity and transparency in the process of appointing a new Director, a call for nominations shall be published in the Official State Gazette at least six months before the end of the term of office of the current Director.
Article 33.- Appointment, principles, incompatibilities and dismissal of personnel in the service of the Authority.
1. The posts of the Authority shall be held by career civil servants in the public service. Such staff shall be bound to observe the secrecy of the data, information and documents to which they have access during the performance of their duties.
2. The staff employed by the Authority shall be provided among the civil servants of the Public Administration in accordance with the principles of equality, publicity, merit and ability for the assigned functions. Jobs shall be classified and filled in accordance with the rules governing access to the civil service.
3. The list of posts shall be drawn up and approved by the Authority.
4. The same grounds of incompatibility established for civil servants shall apply to the Authority’s staff.
5. The staff working for the Authority shall cease to work for the reasons determined by the regulations applicable to them respectively.
6. The provisions of this Law regarding selection, training, provision of posts, mobility, remuneration and disciplinary regime for Authority personnel shall be governed by the provisions of the Basic Statute of Public Employees and by the remaining State legislation on matters of public function. When appropriate, the Authority personnel shall be certified as completing professional specific training to manage the disclosing channels.
Article 34.- Budget and accounting.
1. For the effective fulfilment of its assigned purposes and functions, the Authority shall have at its disposal sufficient economic resources and its own assets, which shall be independent of the assets of the General Administration of the State. The resources it will have, will be:
a) An organisational structure that includes at least: Board, administrative and management department, analysis and research department, IT and encryption department, legal department, care and support of alerting persons’ department, communication and documentation department.
b) The allocations established annually from the General State Budgets. The financial endowment necessary for the operation of the Authority shall constitute a separate item in the General State Budgets.
c) The assets and values constituting its wealth, as well as the products and income arising therefrom.
d) Any others that could legally be attributed to it.
2. The management of the Authority shall prepare and approve annually a preliminary draft operating budget referred to in the previous section and shall forward it to the Ministry of Finance and Public Administrations for its subsequent integration into the General State Budget, in accordance with the provisions of Law 47/2003, of 26 November, on the General Budget.
3. The management, administration and disposition of the goods and rights of which the Authority is the holder, as well as that of the patrimony assigned to it for the fulfilment of its purposes, shall conform to the applicable Law.
4. The Authority’s accounts are subject to the principles of public accounting and to the system of authorisation, disposition, obligation and payment to ensure budgetary control. The Authority shall formulate and render its accounts in accordance with General Budgetary Law 47/2003, of 26 November, and the accounting rules and principles contained in the General Public Accounting Plan and its implementing rules.
5. The annual report of the Authority shall contain the budget settlement.
6. Without prejudice to the powers attributed to the Court of Audit by its Organic Law, the economic-financial management of the Authority shall be subject to the control of the General Intervention of the State Administration under the terms established in General Budgetary Law 47/2003, of 26 November.
7. The contracting of the Authority shall conform to the precepts of the legislation on public sector contracts that are applicable in each case.
TITLE V. PENALTY SYSTEM
Article 35.- Competent bodies to exercise sanctioning powers.
1. When the content of the disclosed information on breaches may suggest the possible existence of activity constituting a crime, the entity which has received the disclosure must immediately inform the Examining Court of the judicial district where the events have occurred, for its investigation and prosecution.
2. When the facts do not appear to suggest the commission a crime but could constitute infringements of the provisions of this Law, the exercise of sanctioning powers corresponds to the Independent Authority for the Protection of Whistleblowers and Facilitators following the procedures established by Law 40/2015, 1st October, regulating the public sector and Law 39/2015, 1st October, of common administrative procedure.
Article 36.- Obligation to report wrongdoing.
1. Administrative bodies, companies and entities which are responsible for internal or external disclosing channels for whistleblowers’ disclosures are obliged to report, without delay, any sign of infraction of whistleblowers’ rights of which they may be aware before the Independent Authority for the Protection of Whistleblowers and Facilitators. This obligation also applies to individuals responsible for disclosing channels.
2. Organs and entities referred to in the section above must refer their report to the following authorities:
a) The disciplinary authority within the public administration or entity which has the power to impose penalties when the alleged offender is a public servant, employee of, or worker in this entity;
b) The Presidency of this body, when the alleged offender is an elected official, director, board member, employer or a person occupying a position of trust who does not come under the jurisdiction of the disciplinary authority described in the section above;
c) The head of Human Resources when the alleged offender is an employee of, or worker in a private entity or company;
d) The president of the board of directors or administrator of the private company or entity, when the alleged offender is an executive, board member or person occupying a senior position and not subject to disciplinary action in the workplace;
e) The public or private contracting authority of any of the aforementioned entities, when the alleged offender is a contractor thereof;
f) The Ombudsman or the Examining Court of the judicial district where the facts have occurred.
Article 37.- Infractions.
1. Any actions or acts of omission contravening the provisions of this Law will be considered violations of the regime protecting the rights of whistleblowers and facilitators, for example, without any pretensions to being exhaustive:
a) hinder or attempt to hinder disclosures;
b) take retaliatory measures or persecution against persons protected by this Law;
c) bring vexatious proceedings against persons protected by this Law;
d) breach the duty of maintaining the confidentiality or anonymity with regard to the identity of the persons protected by this Law and with regard to the information on breaches.
2. The infractions described in this Law are classified as very serious, serious, or minor.
a) Considered as very serious infractions are the following:
a.I) violation of the guarantees of anonymity, confidentiality, secrecy and security set out in this Law, and other violations of the terms under which the disclosing channels have been made public;
a.II) disclosure of the identity of the anonymous whistleblower when he or she has opted for anonymity, including seeking identification of an anonymous whistleblower, and any infraction of the rule of confidentiality where this applies;
a.III) the actions or omissions tending to reveal the identity of the whistleblower when he or she has opted for anonymity or confidentiality even if the actual disclosure of the identity does not occur;
a.IV) the imposition of penalties or adoption of arbitrary, damaging, persecutory or reprisal measures as a result of the whistleblower’s disclosure when they place the whistleblower or facilitator who suffered them, directly or indirectly, or his or her family, workmates, goods or his or her own private entities or the ones connected to his or her, in a situation of personal harm;
a.V) not having taken the precautions stipulated in Article 4.9 in cases of information officially listed as concerning national security, official or military secrets and other kids of classified material;
a.VI) reporting channels that claim to be anonymous and secure while not complying with the conditions stipulated in Article 15.3 or that do not inform that these reporting channels are not anonymous nor secure;
a.VI) disclosing channels that claim to be anonymous and secure while not complying with the conditions stipulated in Article 14.3 or that do not inform that these disclosing channels are not anonymous nor secure;
a.VII) the communication or publication of information on breaches that has been proven false, when the resolution that puts an end to the investigation of the facts generated by the disclosure concludes that the information was false and declares expressly that the whistleblower or facilitator knew it was false when they disclosed or published it;
a.VIII) non-compliance with the obligations of secrecy and confidentiality of the information on breaches and the other aspects that the disclosing procedure established by the entity must guarantee in accordance with Article 17;
a.IX) the suspension or limitation of the rights provided by this Law by means of any type of individual or collective agreement, policy or contract;
a.X) do not have an internal or external disclosing channel when it is obligatory under this Law or implementing regulations;
a.XI) unjustified breach or contravention of the duty to cooperate with the Independent Authority for the Protection of Whistleblowers and Facilitators, for example, not responding to or following up on the information and compliance requirements issued by the Independent Authority for the Protection of Whistleblowers and Facilitators.
a.XII) retaliation or affectation to the normal performance of the free advisory services of whistleblowers and facilitators offered by Bar Associations, the Independent Authority or civil society organisations;
a.XIII) retaliation or affectation against anyone acting on behalf of the Authority for carrying out the Authority’s duties.
It shall be a violation of this Act to retaliate against anyone acting on behalf of the Authority for carrying out the Authority’s duties.
b) Considered as serious infractions are the following:
b.I) the omission of information necessary for using a disclosing channel, and the omission, in whole or in part, of the information provided for in Article 16;
b.II) the omission of the right of information and access to the procedure provided in Articles 8, 19 and 20 of this Law without substantiating anything about the endangerment of the investigation;
b.III) threatening, in all cases constituting information on breaches, to initiate disciplinary procedures or to impose a penalty on the whistleblower or facilitator, and beginning effective procedures for their application when no penalty has been decided;
b.IV) the imposition of sanctions or adoption of damaging measures as a result of the whistleblower’s disclosure of information on breaches when they have caused a situation of temporary personal harm and economic disadvantage to the whistleblower or facilitator who has suffered these penalties or measures, in such a way that no permanent damage is incurred and reasonable compensation is possible, whenever this compensation is calculated to exceed TWO THOUSAND EUROS (€2,000);
b.V) the infringement of the custody and storage terms provided in Article 21;
b.VI) the requirement to address in the first place internal disclosing channels in order to be able to use external disclosing channels or the requirement to justify the disclosing channel election;
b.VII) not referring to the competent authority the information on breaches on which the disclosing channel’s manager cannot follow-up because it does not have the necessary competencies;
b.VIII) omission of the duty to review the disclosing procedures and protocols;
b.IX) the manifest ineffectiveness of internal or external disclosing channels provided.
c) Considered as minor infractions are the following:
c.I) those described in sections b.I) and b.III) when, owing to their minor scope and importance, they cannot be deemed to be serious;
c.II) all those actions that contravene the stipulations laid out in this Law when they involve the circumstances described in paragraph b) above and when the damages caused are estimated in financial terms as not exceeding a sum of FIVE THOUSAND EUROS (€5,000).
d) Any other actions that undermine the accomplishments of this Act’s objectives will be penalised according to the proportionality criteria foreseen in article 39.
Article 38.- Penalties.
1. Very serious infractions will be penalised with a fine of between 100,001 and 300,000 euros; serious infractions will be fined between 10,001 and 100,000 euros; and minor infractions will be fined a sum of up to 10,000 euros.
2. Very serious infractions will be sanctioned with disqualification up to three years; the serious, with disqualification up to one year.
3. When the infraction is committed by a public servant or an employee of the public administration, and this violation is directly related with his or her prerogatives, he or she will be penalised with temporary suspension of up to three months in cases of minor infraction; of up to one year in cases of serious infraction; and up to three years or dismissal if the infringement is deemed to be very serious.
4. In any case the application of the remedies provided by this Law may be suspended or limited by any kind of individual or collective agreement, contract, policy or arbitration agreement.
Article 39.- Proportionality in imposition of penalties.
The degree of the penalty will be considered in accordance with the following criteria:
a) The degree of culpability and existence of intentionality;
b) Continuation or persistence of the conduct constituting infraction;
c) The nature of the damage caused;
d) Re-offending by committing, within a period of three years, more than one infraction of a similar nature when the behaviour in question has been officially declared an infraction. The persistence in the infraction by accumulation transforms minor infractions to serious, and serious to very serious.
Article 40.- Statute of limitations.
1. General rules will be applied to the statute of limitations regulating the power of the administration to impose penalties.
2. The restrictions of the statute of limitations will not apply to whistleblowers while they remain in a situation of anonymity, and when disclosing of the infraction could occasion any loss or greater damage.
Article 41.- Awarding damages.
1. If the sanctioned conduct has caused damage or harm to any public administration, to any public or private entity, or to a whistleblower or facilitator, the decision of the proceedings will contain an express pronouncement regarding the following extremes:
a) the requirement to the sanctioned person to restore to its original state the situation that has been altered by the infraction;
b) when this is not possible, economic compensation must be offered for any damage caused.
2. Civil liability arising from any infraction will always be shared by all those people who caused the resulting damage unless the decision declaring liability reasonably distributes it among all infractors.
First additional provision. Follow-up Commission.
This Law will be submitted to a follow-up commission and to revision in the Parliament. This Commission shall provide the European Commission and the European Parliament the information and statistics provided by Article 27 of the Directive (EU) 2019/1937, of the European Parliament and of the Council on the protection of persons reporting on breaches of Union law.
Second additional provision. Amendment to Law 1/1996, 10th January, on Free Legal Aid
a section j) has been added to Article 2 of the Law cited above, in the following terms:
“j) Independently of the means to institute legal proceedings, the right to free legal aid is recognised and this should immediately be applied to whistleblowers or facilitators who, complying with the requirements detailed in the Law on Full Protection for Whistleblowers, want to bring judicial action or may be charged or investigated in proceedings connected with, deriving from, or the consequence of, their status as such.
For the purposes of granting the benefit of legal aid, the condition of whistleblower or facilitator shall be acquired when a lawsuit, complaint or grievance is filed, or any procedure derived from the report is initiated, and shall be maintained as long as the procedure remains or when, after its completion, a sentence has been issued. The benefit of free legal aid will be lost after the finalization of the sentence, or of the definitive or provisional dismissal due to the facts not being proven, without the obligation to pay the cost of the benefits enjoyed free of charge until that moment.
In the different proceedings that may be initiated as a consequence of the condition of whistleblower or facilitator, it must be the same lawyer who assists him or her, provided that this duly guarantees his or her right of defence.”
Third additional provision. Amendment to Law 1/2000, 7th January, of Civil Procedure.
1. An Article 11 ter. is added in the following terms:
“Article 11 ter. Legitimation for the defence of the rights of whistleblowers and facilitators.
The Independent Authority for the Protection of Whistleblowers and Facilitators, in accordance with the provisions of the Law on Full Protection of Whistleblowers, shall also be legitimized for the defence of the rights of whistleblowers and facilitators, in addition to themselves and always with their authorization”.
2. An article 15 ter. of the Law is added in the following terms:
“Article 15 ter. Intervention in processes derived from information on breaches.
The provisions of the foregoing article on procedural matters shall also apply when the European Commission and the Independent Authority for the Protection of Whistleblowers and Facilitators, within the scope of their powers, consider it necessary to intervene in a process that affects matters relating to the application of Directive (EU) 2019/1937, of the European Parliament and of the Council on the Protection of Persons Reporting Violations of European Law and the Law on Full Protection of Whistleblowers”.
Fourth additional provision. Amendment to the Royal Decree, 14th September 1882, passing the Criminal Procedure Code.
1. A paragraph 4 is added to Article 109 bis in the following terms:
“4. Criminal action may also be brought by the Independent Authority for the Protection of Whistleblowers and Facilitators when authorized by the whistleblower and/or facilitator victim of the crime”.
2. A paragraph 4 is added to Article 265 in the following terms:
“2. The disclosure made under the terms of the Law on Protection of Whistleblowers will not be considered to be a criminal complaint”.
Fifth additional provision. Amendment to Law 29/1998, 13th July, regulating the Contentious Administrative Jurisdiction.
A paragraph j) is added to Article 19.1 in the following terms:
“j) For the defence of the rights of the whistleblowers and facilitators, besides themselves, and always with their authorization, the Independent Authority for the Protection of Whistleblowers and Facilitators will also be legitimized in accordance with the provisions of the Law on Full Protection of Whistleblowers”.
Sixth additional provision. Amendment to Law 36/2011, 10th October, regulating Social Jurisdiction.
Article 20 bis is added in the following terms:
“The Independent Authority for the Protection of Whistleblowers and Facilitators may act in a process, in the name and in the interest of the workers and of the officials and statutory personnel who are recognized as whistleblowers or facilitators who so authorize it, for the defence of their individual rights, and the effects of such action shall fall on them”.
Seventh additional provision. Amendment to Organic Law 10/1995, 23th November, of the Criminal Code.
The circumstance nº7 of the article 21 becomes nº8 and a new circumstance nº7 is added in the following terms:
“7. Disclosing information on wrongdoing in which the offender has been involved according to the Law on Protection of Whistleblowers, which shall be considered as a qualified attenuating circumstance for the purposes of article 66.1”
One only. Repeal of provisions.
Those provisions of equal or lesser rank which are in opposition to the stipulations of this Law are repealed.
One only. Coming into force.
This Law will come into force the day after its publication in the Official Gazette.
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