Transposition of the Whistleblower Directive in Spain
Published on 23rd Apr 2021
The transposition period of the Directive (EU) 2019/1937 of 23 October 2019 on the protection of persons who report breaches of Union law hits its deadline on 17 December 2021 (17 December for organizations between 50 and 249 workers) (the "Whistleblower Directive").
To establish a clear and uniform legal framework in terms of reporting irregularities and acts of corruption, the legislative proposal of the Spanish legislator shall incorporate into the legal system certain obligations and minimum requirements that are set forth in the Whistleblower Directive, the main aspects of which are detailed in this link.
To these effects, a period for public consultation was opened in Spain a few months ago, with the aim to gather opinions in relation to aspects such as the implementation of reporting channels (internal and external); the designation of supervisory entities; the material scope of the legislative proposal; the admissibility of anonymous reporting; and the protective measures available to whistleblowers.
The period for public consultation was closed at the beginning of this year and the Spanish legislator has started to work on the draft of the legislative proposal, which, according to the Whistleblower Directive, shall:
- oblige private companies with 50 or more employees to implement internal channels for the whistleblowers that ensure their anonymity;
- prohibited and take measures to prevent all forms of retaliation against whistleblowers, exercised by their employing company or with whom they have a professional relationship; and
- designate the competent authorities or supervisory entities responsible for managing and following up on the reports made through external reporting channels.
Notwithstanding the above, although there is no uniform legal framework in Spain, some specific sectoral laws already regulate some of the obligations set forth above, such as financial sector regulations (which include internal communication obligations and external communication obligations to the CNMV and the Bank of Spain); anti-money laundering regulations (which include the obligations to adopt in writing and implement policies and procedures that ensure the reporting of irregularities and to implement a whistleblowing channel and the necessary measures to protect whistleblowers from exposure); the Spanish Criminal Code itself (in relation to the criminal liability regime of legal persons); and the Preliminary draft of the Spanish Criminal Procedure Act (which foresees the anonymity of criminal complaints, unless expressly requested otherwise by the competent authority).
With the transposition of the Whistleblower Directive, the Spanish legislator seeks to regulate in a comprehensive and exhaustive manner the legal protection for whistleblowers, thus allowing a better detection and prevention of any damages to the public interest.