More than 80% of Catalan companies fail to comply with Law 2/2023

Last Wednesday, the 13th of March, marked one (1) year since the Anti-Fraud Office of Catalonia (hereinafter referred to as the Anti-Fraud Office or OAC, for its acronym in Catalan) assumed the responsibilities for the protection of whistleblowers in accordance with Law 2/2023 of 20 February on the protection of persons who report violations of the law and the fight against corruption (hereinafter referred to as Law 2/2023 or the Law), becoming the first autonomic Independent Whistleblower Protection Authority at state level.

As an Independent Authority, the OAC assumed, among others, the functions of managing the external whistleblowing channel, adopting measures for the protection of whistleblowers, being the Register of those responsible for the Whistleblowing Channel and exercising the power to impose sanctions.

On the occasion of its first anniversary, the OAC has shared a summary of the data regarding its functions, which are detailed below:

· Since it was granted these powers, the OAC has received 420 complaints, of which 153 have been referred to the competent bodies. In addition, it is noteworthy that during the first two (2) months of 2024, 202 complaints were received, representing an increase of 60% compared to the same period in 2023, when 126 complaints were received.

· The OAC has also experienced a considerable increase in requests for protection of whistleblowers, with a total of 35 requests received since March 2023: 29 requests in 2023 and 6 more by February 2024. These protection

measures have been requested mainly by persons with a direct link to the reported facts.

· On the other hand, in relation to the OAC’s competences regarding the Register of those responsible for the Whistleblowing Channel, only a total of 1,514 registrations have been received until December 2023, from both public and private entities. This contrasts with data from the Statistical Institute of Catalonia, which reports that the number of companies with more than 50 employees, and therefore subject to Law 2/2023, reached a total of 8,337 as of 1 January 2023.

· It is important to remember that Article 8.3 of Law 2/2023 establishes the obligation to notify the Independent Whistleblower Protection Authority, in this case, the OAC, of the appointment of those in charge of the Whistleblower Channel within the following ten (10) working days. Therefore, assuming that companies with more than 50 employees are obliged by Law 2/2023, the data suggest that approximately 82% of Catalan companies do not comply with this obligation.

In sum, the publication of the data by the Anti-Fraud Office reveals the tendency of the entities subject to Law 2/2023 to forget the obligation to communicate to the Independent Authority the appointment of the person in charge of their Whistleblowing Channel or to comply with the requirements to have the Whistleblowing Channel in accordance with Law 2/2023. While it is true that attention is usually focused on the main obligation established by the Law, which corresponds to the implementation of whistleblowing channels, the set of additional responsibilities imposed by this regulation cannot be ignored. In this sense, to facilitate the implementation of the Register of those responsible for the Whistleblowing Channel, the Anti-Fraud Office has set up a consultation service that has attended more than 300 requests, and additional information is provided through its web page, including frequently asked questions to clarify fundamental doubts.

Finally, it should be noted that the Compliance Department of Molins Defensa Penal offers comprehensive advice on the design and external management of the Whistleblowing Channel, in compliance with all applicable obligations, as well as intervention in its development, in order to ensure the correct resolution and investigation of possible situations that may arise from the Internal Investigations Department.

Molins Defensa Penal, Department of Compliance.

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