On the main features of the sanctioning regime of the Draft Law transposing the Whistleblowing Directive: fines that could reach up to 1,000,000 €

On 23 September, the Draft Law regulating the protection of persons who report regulatory offences and the fight against corruption (hereinafter, the Draft Law), which transposes Directive 2019/1937 of the European Parliament and of the Council of 23 October 2019, better known as the Whistleblowing Directive, was published in the Bulletin of the Congress of Deputies..

Among other issues of interest, the sanctioning regime established in Title IX of the Draft Law stands out. This sanctioning regime, of an administrative nature, aims to comply with the provisions of Recital 102 of the Whistleblowing Directive: “Criminal, civil or administrative sanctions are necessary to ensure the effectiveness of the rules on whistleblower protection. […]“. In this context, the main features of the above-mentioned sanctioning regime are summarised below.

Firstly, in view of the nature of this procedure, the sanctioning authority will be carried out in accordance with the principles and rules established in Law 40/2015, of 1 October, on the Legal Regime of the Public Sector and Law 39/2015, of 1 October, on the Common Administrative Procedure of Public Administrations.

The Independent Authority for Whistleblower Protection (hereinafter, A.A.I), a state body created for the purpose of enforcing the provisions on whistleblower protection, and the competent bodies of the Autonomous Communities, are responsible for executing the sanctioning procedure relating to the Draft Law. It should be noted that the A.A.I. would have jurisdiction over offences committed in the private sector, regardless of the territory (within the national sphere) in which they were committed.

It is then established that both natural and legal entities who have committed one of the offences set out in Article 63 of the Draft Law may be subject to the penalty regime established in the Draft Law.

Thus, the main offences set out in the Draft Law are as follows:

  • Very serious offences:
    • Any action that entails an effective limitation of the rights and guarantees set out in the body of the Draft Law.
    • Any attempt or effective action to hinder the submission of communications or to prevent, frustrate or slow down their follow-up.
    • The adoption of any kind of reprisal derived from the communication by informants or other persons included in the scope of protection established by the Draft Law.
    • Breach of the duty of secrecy with respect to any aspect related to the communications.
    • Public communication of information knowing it to be false.
    • Failure to comply with the obligation to have an internal information system under the terms established in the Draft Law.
  • Serious offences:
    • Limitations of rights, guarantees (including those of confidentiality and anonymity), of the duty of secrecy, among others, when they are not considered very serious.
    • Non-compliance with the obligation to adopt measures to guarantee the confidentiality and secrecy of information.
  • Minor offences:
    • Incomplete or deliberately incomplete submission of information by the person responsible for the information system to the authority, or after the deadline granted for this purpose.
    • Failure to comply with the obligation to cooperate with the investigation of information.
    • Other breaches of obligations provided for in the Draft Law that are not classified as very serious or serious offences.

With regard to the offences listed above, it can be seen that these are very broadly defined (for example, it would appear that the very serious conduct consisting of “failure to comply with the obligation to have an internal information system in the terms established in the Draft Law” could include – as an open clause – practically any breach relating to the design or implementation of the information systems) and may even limit the right of defence of legal entities (by criminalising, among others, “failure to comply with the obligation to collaborate with the investigation of information“).

Finally, the Draft Law establishes the following range of sanctions for cases in which the above offences, among others, are committed (without prejudice to other civil servant, statutory or employment-related responsibilities):

  • For individuals:
    • In the case of very serious offences: a fine of €30,001 to €300,000.
    • In the case of serious offences: a fine of €10,001 to €30,000.
    • In the case of minor offences: a fine of €1,001 to €10,000.
  • For legal entities:
    • In the case of very serious offences: a fine of €600,001 to €1,000,000.
    • For serious offences: a fine of €100,001 to €600,000.
    • In the case of minor offences: a fine of up to €100,000.
  • In addition, in the case of very serious offences, the I.A.A. may impose further sanctions:
    • Public reprimand.
    • Prohibition from obtaining subsidies or other tax benefits for a maximum period of four (4) years.
    • Prohibition from contracting with the public sector for a maximum period of three (3) years.

By way of conclusion, it should be argued that, although having ethical or whistleblowing channels integrated into the framework of Compliance systems was until now a matter of great importance in order to comply with criminal law requirements in this area, to comply with best practices in Compliance, as well as, in general, to avoid other damages (such as the generation of information silos within entities, reaction capacity, market positioning or a good working environment); the implementation of information systems has taken on major importance in view of the Draft Law, the sanctioning regime of which has been briefly analysed.

In short, due to the breadth with which the possible offending conducts are defined in the Draft Law, as well as the seriousness of the offences that these would entail, it will be crucial for the obliged entities to implement internal information systems that comply with the (very) different obligations of a material and formal nature established in the aforementioned legal text.

Compliance Department of Molins Defensa Penal. 


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