On October 7, 2019, the European Union Council approved the new "Whistleblowing Directive".
This Directive aims to favour the detection and eradication of illegal acts committed within companies, implementing complaint channels to report said wrongdoings by persons linked to the company as well as effective systems of protection for whistleblowers against any possible corporate reprisal.
The fundamental aspects envisaged by this Directive in relation to the use of such complaint channels are the following:
1. Entities required to implement the directive: companies with more than 50 employees.
2. Users such as current employees, ex-employees, interns, volunteers, administrators, shareholders, self-employed collaborators, and anyone working for the suppliers or contractors of said company may be whistleblowers.
3. Types of complaint:
– Verbal complaint: made by telephone or other voice messaging systems, and in person by requesting an appointment.
– Written complaint: made by mail, using a physical mailbox intended to collect complaints and / or through a virtual digital platform (internet or intranet).
Whatever the route used (verbal or written), the complaint may be anonymous, if the whistleblower so wishes.
4. Essential procedural requirements:
– The company will acknowledge receipt of the complaint within a maximum period of seven days from receival, and then designate an impartial person to handle the processing of said complaint. During the processing of the complaint, this impartial person must inform the whistleblower about the evolution of the investigation of the reported facts, and finally must respond to his/her complaint within a maximum period of three months.
– Complaint procedures must guarantee absolute confidentiality of the identity of both the whistleblower and third parties that may appear in the content of the complaint, as well as the facts reported, preventing in all cases the access of unauthorized third parties to the information protected by said guarantee of confidentiality.
– Complaint procedures must articulate mechanisms to dissuade the company from any type of reprisal against the whistleblower (dismissal, degradation of duties, harassment, etc.), and, likewise, they must establish specific and effective measures to compensate the employee. in the event of such reprisal.
The "Whistleblowing Directive" establishes a period of two years for all the member states of the European Union to transpose said Directive into their respective national internal laws. Therefore, Spain must approve its own regulations on whistleblowing before November 2021.
In any case, despite the aforementioned two-year term, it would be advisable for companies to begin implementing these complaint channels within the framework of so-called "criminal compliance", since the existence of such complaint channels could constitute mitigating or exempting circumstances for a company regarding the possible criminal responsibility that, according to article 31.bis of the Spanish Criminal Code, is intended to be attributed to a company for the alleged commission of a corporate crime.
On the other hand, and regardless of what has been indicated above about the avoidance or mitigation of a possible criminal responsibility of a company, the truth is that the implementation of such internal channels, by themselves, can contribute to the strengthening of the internal company culture's scrupulous compliance with the legality in all strata of the organization (employees, managers, administrators, etc.), and, accordingly, can favour the image of transparency, credibility and corporate ethics projected in the market as an added value to better strengthen the competitive position of the company in its sector of business activity.
To this end, and as a firm specialized in business advice, from Martí & Associats we offer our collaboration for the design and implementation of such complaint channels, as well as our support in the practical management of these channels and in the processing of specific complaints according to the legally stipulated procedure.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
