Plantilla para Proposición de Ley de Protección Integral alertadores

Xnet claims that the Spanish translation of the European Directive on whistleblowers jeopardize their protection

Letter sent by Xnet to the responsible authorities of the European Commission and the Permanent Delegation of Spain in Europe:

We are writing to you to express our concerns regarding the Spanish translation published last 23rd October 2019 in the Official Journal of the European Union of the Directive (EU) 2019/1937 of the European Parliament and of the Council, of 23 October 2019, on the protection of persons who report breaches of Union law.

We believe that it must be corrected by tabling an amendment as the current terminology used would distort and undermine its transposition in the Spanish legal system.

The use of the terms “denunciante” and “denuncia” to refer to what is mentioned in the English version as “whistleblower” or “reporting person” and “report” may, in the Spanish legal context, cause serious grievances in its deployment compared to the rest of the countries, and in addition, it may create an exceptionality as Spain would be the only country where the terms used have another function in its legal system.

In effect, these terms may cause confusion with respect to the different rules to be applied, and the obligations and effects for which theyprovide, conflicting with the provisions of the Directive.

The term “denunciante”, as defined in the current procedural rules, entails the following formalities which conflict with the provisions of the Directive:
 

1) The obligation to report.

The concept of “denunciante” may cause a conflict with the provisions of the Directive, imposing the obligation to “denounce” or report, when in most cases, this is not the most appropriate way to solve the problem raised.

Royal Decree of 14 September 1882 passing the Law on Criminal Procedures:

• Article 259.
“Anyone who witnesses the perpetration of any public crime is obliged to report it immediately (…)”.

• Article 262.
“Those who by reason of their positions, professions or trades receive news of a public crime shall be obliged to report it immediately (…)”.

• Article 264.
“Any person who, by any means other than those mentioned above, gains knowledge of the commission of any of the offences to be prosecuted ex officio shall report it (…)”.

This act of “denunciar” is also not recommended/the best way in many cases to guarantee the security of the person disclosing information. In this regard, the Directive notes that the solution to conflicts between workers, for example, can be channelled through other available procedures.
 

2) The obligation to report to specific institutions or authorities.

Both criminal and administrative procedural rules impose mandatory reporting to specific authorities, bodies or institutions.

Royal Decree of 14 September 1882 approving the Law of Criminal Prosecution:

• Article 259.
“(…) is obliged to bring it immediately to the attention of the investigating judge, justice of the peace, county or municipal judge or public prosecutor closest to the place where he or she is located, (…)”.

• Article 262.
“(…) shall be obliged to report it immediately to the Public Prosecutor’s Office, the competent court, the investigating judge and, failing that, to the municipality or to the nearest police officer in the case of a flagrant offence.

• Article 264.
“(…) shall report it to the Public Prosecutor’s Office, to the competent court or to the investigating or municipal judge or police officer (…)”.

Law 39/2015 of 1 October 2015 on Common Administrative Procedure for Public Administrations:

• Article 62. Initiation of the complaint procedure.
“1. Denunciation is understood as the act by which any person, in compliance with a legal obligation or otherwise, informs an administrative body of the existence of a certain act that could justify the ex officio initiation of an administrative procedure. (…)”

This therefore excludes the possibility of using existing internal channels within companies or other channels, such as notifying superiors or others, and limits the freedom laid down in the Directive for whistleblowers to choose the channel or channels they consider most appropriate according to their individual circumstances.
 

3) Obligation to provide the signature and identity of the reporting person.

Both in the administrative and criminal spheres, the person is required to identify him or herself, in addition to signing the report in the criminal spheres.

Royal Decree of 14 September 1882 approving the Criminal Procedure Act:

• Article 266.
“The report made in writing must be signed by the reporting person; and if the reporting person is unable to do so, by another person at their request. The authority or official who receives it shall sign and seal all sheets in the presence of the person presenting it, who may also sign it him or herself or through another person at their request.

• Article 267.
“When the report is verbal, a record shall be issued by the authority or official receiving it, in which, in the form of a declaration, any news the reporting party may have regarding the fact being reported and its circumstances shall be expressed, both of which shall be signed below. If the complainant is unable to sign, another person shall sign at their request.”

• Article 268.
“The judge, court, authority or official who receives a verbal or written report shall identify, using personal identification card or by other means deemed sufficient, the identity of the reporting person.
If the reporting person so requires, he shall be given a receipt that the report has been formalised.”

• Article 269.
“Once the report has been formalised, the judge or official to whom it is made shall immediately proceed or order the verification of the alleged act, unless it does not have the character of a crime, or the report is manifestly false. In either of these two cases, the court or official shall refrain from any proceedings, without prejudice to the liability they incur if they unduly dismiss such proceedings.

Law 39/2015, of 1 October, on Common Administrative Procedure for Public Administrations:

• Article 62. Initiation of the procedure by denunciation.
“The denunciations must express the identity of the person or persons who present them and the account of the facts that are brought to the knowledge of the Administration. When such facts could constitute an administrative infraction, they shall include the date of their commission and, when possible, the identification of the presumed responsible parties. (…)”

This contradicts the anonymity permited for by the Directive to protect whistleblowers.

In the Spanish legal system, anonymous reports are already allowed, specifically in the areas of protection of personal data and prevention of money laundering, but no specific legal mechanisms have been established to guarantee this possibility.

Organic Law 3/2018 of 5 December on the Protection of Personal Data and the guarantee of digital rights:

• Article 24. Information systems for internal complaints.
“It shall be lawful to create and maintain information systems through which it may be made known to a private law entity, even anonymously, the commission within it or in the actions of third parties who contract with it, of acts or conduct that may be contrary to the general or sectoral regulations applicable to it. Employees and third parties must be informed about the existence of these information systems. (…)”

Law 10/2010, of 28 April, on the prevention of money laundering and the financing of terrorism:

• Article 26 bis. Internal procedures for reporting potential breaches.
“The regulated entities shall establish internal procedures so that their employees, managers or agents may communicate, even anonymously, relevant information on possible breaches of this law, its implementing regulations or the policies and procedures implemented to comply with them, committed within the regulated entity. (…)”

 

4) Restrictive material scope.

The definition of “denunciante” provided for in the current legal system limits the material scope provided for by the Directive.

Royal Decree of 14 September 1882 approving the Code of Criminal Procedure:

• Article 259.
“Anyone who witnesses the perpetration of any public crime is obliged to report it immediately (…)”.

• Article 262.
“Those who by reason of their positions, professions or trades receive news of a public crime, shall be obliged to report it immediately (…)”.

• Article 264.
“Any person who, by any means other than those mentioned above, has knowledge of the commission of any of the offences to be prosecuted ex officio shall report it (…)”.

The material scope of application of the Directive is not limited to public or semi-public crimes but goes further, allowing to report irregularities, malpractices, abuses, or other acts or omissions which are not formally illegal, but which frustrate the objectives or purposes of the legislation and which affect the public interest.

• Article 5.
“(…) ‘breaches’ means acts or omissions that:(i) are unlawful and relate to the Union acts and areas falling within the material scope referred to in Article 2; or (ii) defeat the object or the purpose of the rules in the Union acts and areas falling within the material scope referred to in Article 2; (…)”.

In addition, it allows Member States to extend the scope of application at the national level.

Recital (104).
“This Directive introduces minimum standards and it should be possible for Member States to introduce or maintain provisions which are more favourable to the reporting person, provided that such provisions do not interfere with the measures for the protection of persons concerned. The transposition of this Directive should, under no circumstances, provide grounds for reducing the level of protection already granted to reporting persons under national law in the areas to which it applies.”

Thus, references to the legal term of “denunciante” would limit the application of the Directive at a national level, contradicting its main intention to protect reporting parties irrespective of the infringement they are alerting to.

Some precautions have already been taken at a national level to avoid the effects of the use of the term “denunciante”. In the data protection and money laundering prevention legislation it can be observed how the word “denuncia” or “denunciante” is excluded and other terms such as “communication mechanisms” or “information systems” are chosen to allow these communications to take place anonymously. We also find Spanish case law where the term “whistleblower” in English is mentioned in order to highlight its wider scope of application for reporting irregular, fraudulent, abusive or mismanaged actions, and thus differentiate the whistleblower from the “denunciante”. Finally, it should be noted that the term “alertador” has already been used Spanish legal system previously, having been published in the Boletín Oficial del Estado (State’s Official Gazette) of 30 November 2018.

The term “denunciante” may render the legislation ineffective if we bear in mind that it is a word that, from a social and cultural perspective, has pejorative connotations.
 

5) Grievance in respect of the other Member States

Other translations of the Directive use broader terms that maintain the necessary legal neutrality in order to respect the provisions of the Directive and do not entail the legal implications or negative connotations found in the Spanish translation.

In the English version, the terms “whistleblower” and “reporting person” are used. The term “report” does not entail the legal consequences that the term “denuncia” does. For example, when someone reports information, this information does not always constitute a criminal offense, and can include administrative or civil violations, and the “reporting person” may not reveal his or her identity. Therefore, the use of the term “report” respects the letter and spirit of the Directive that foresees these prerogatives. A term with the same neutrality as the English term “report” needs to be found and used in order to keep the prerogatives to report without needing any identification and about acts that do not constitute criminal offenses. Not finding this term will automatically reduce the scope of application and protection of the Spanish Law, causing a serious disservice to its correct transposition.

Using the term “denunciante” would amount to the use in the French version of the term “plainte” instead of the terms “signalement” and “lanceur d’alerte”. Similarly, it would amount to the use in the Italian version of the term “denuncia” instead of the terms “persona segnalante” or “informatori”. This would have deeply modified the sense and objective of the national law, as it is the case in the Spanish version.

Thus, using the terms “alertador”, “alerta” and “canales de alerta” would maintain the essence of the Directive in order to favour the protection of whistleblowers at the national level, without reducing the level of protection sought by the Directive even before national transposition.

We use the term “alertador” and “alerta” because it is similar to the French translation “lanceurs d’alerte” and because its use is spreading in Spain. However, we have no objection to the use of another term as long as it does not imply existing connotations in the Spanish legal system.

We would like this objective problem to be solved as rapidly as possible without the need for it to transcend, becoming a larger, more conflictive issue. For this reason, we remain at your disposal.

We look forward to receiving your response.

Yours faithfully,

Simona Levi for the Xnet project
 

Xnet (2008) is a specialised activist project working on democratic renewal in the digital age and against corruption. We are pioneers in Spain in the opening of reporting channels in NGOs and public institutions and have published and carried out important cases against systemic corruption, such as the “black cards” case which led to the imprisonment of the former Minister of Economy Rodrigo Rato and 14 other politicians. Xnet is a member of Whistleblowing International Network (WIN), has made fundamental amendments to the Directive (EU) 2019/1937 of the European Parliament and of the Council, of 23 October 2019, on the protection of persons who report breaches of Union law, and we are currently working on its transposition into Spanish legislation. In addition, we have actively worked with whistleblowers for their protection.
 

1 – https://eur-lex.europa.eu/legal-content/ES/TXT/PDF/?uri=CELEX:32019L1937&from=EN
2 – https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:32019L1937&from=EN
3 – https://eur-lex.europa.eu/legal-content/FR/TXT/PDF/?uri=CELEX:32019L1937&from=EN
4 – https://eur-lex.europa.eu/legal-content/IT/TXT/PDF/?uri=CELEX:32019L1937&from=EN

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