Whistleblowing Directive is here: reference for creating new channels and adapting existing ones

The English-speaking world paved the way for individuals to report non-compliance—in  return for a reward—in England in the Middle Ages. The action of qui tam, from the latin “qui tam pro domino rege quam pro se ipso in hac parte sequitur,” i.e., he who brings an action for the king as well as for himself, allowed subjects to obtain part of the penalty or damages obtained from the offender.

The action spread to America in the days of Benjamin Franklin and has endured since then, becoming an essential element in the fight against fraud today.

Europe has been more reluctant to grant rewards to whistleblowers, and eventually published Directive 2019/1937 relating to protection against reprisals for people who report violations of community law, known as the Whistleblowing Directive, which establishes new obligations for companies with over 50 employees.

As discussed in the post published last April when the Whistleblowing Directive was enacted, the aim is to protect European regulations (in the detection of irregularities affecting food safety, public health, and the protection of consumers) and, therefore, it is considered necessary to enable, encourage and facilitate internal complaints on behalf of anyone who becomes aware of irregularities, whether at work or elsewhere.

The directive establishes the obligation to implement internal complaints procedures and channels, and procedures for handling complaints in public and private entities that have over 50 employees.

The European directive enters into force on December 17 of this year and has a transposition deadline of two years, until 2021. Despite this deadline, considering that the effectiveness of compliance models requires the existence of these channels and that the success of internal investigations depends on the effectiveness of those channels, it is advisable to adapt existing channels to European regulations and to schedule creation for new ones.

The essential elements established by the directive for these channels are as follows:

• Whistleblowing channels must allow for complaints to be made verbally and in writing, as well as by telephone or other voice messaging systems, and also in person if so requested by the complainant.
• Reporting channels must ensure the confidentiality of the complainant.
• Receipt of the complaint must be acknowledged within a maximum of seven days.
• A person or impartial service that is competent to deal with complaints, which may be the same person or service that receives complaints, must be designated. This instructor will maintain communication with the complainant and, if necessary, will request additional information and provide a response.
• All complaints must be handled diligently, including anonymous ones, when these are acceptable under national law.
• The complainant must receive a response regarding the complaint’s handling in a maximum of three months, starting on the date the complaint is acknowledged and, if no there is acknowledgment receipt, within seven days from the date on which the complaint is filed.
• Channels must be negotiated with the workers’ legal representatives when required by national regulations.

The incentive established by the directive, unlike the qui tam action,is essentially the protection of the complainant, beyond other incentives that may be established based on the subject matter. Therefore, we will have to see how effective the incentive of protection will prove in terms of changing the actions of potential complainants.