What stage has the legislature reached in implementing the Whistleblowing Directive? If not already implemented, when is it expected or planned that the required legislation will be passed?
The Congress of Deputies approved on February 16th 2023 the new whistleblowing law and was published on February 21st 2023 (Law 2/2023 of 20 February 23, regulating the protection of persons who report regulatory infringements and the fight against corruption) . Its content came into forcce on March 13th 2023
Status
Legislation passed / Directive implemented.
Reporting topics covered (in addition to those covered by the Directive)
In addition to those covered by the Directive Spain has included:
Occupational health and safety infringements.
Infringements that directly affect or undermine the general interest where no specific regulation applies. The general interest shall be deemed to be affected when it involves an economic loss for the Public Treasury.
Categories of person who may report (in addition to those specified in the Directive)
Whistleblowers are the same as those in the Directive. However, please note that certain protections offered to whistleblowers are extended to:
Employees of the administration/ordinary employees
Self-employed individuals
shareholders, participants and persons belonging to the administrative body, management or supervisory body of a company, including non-executive members;
any person working for or under the supervision and direction of contractors, subcontractors and suppliers.
whistleblowers who communicate or publicly disclose information about infringements within the framework of a terminated employment or statutory relationship, volunteers, scholarship employment or statutory relationship already terminated, volunteers, trainees, whether or not they receive remuneration, as well as those whose employment relationship has not yet begun, in cases where the information on infringements information on violations was obtained during the selection process or pre-contractual negotiation.
The legal representatives of employees in the exercise of their functions of advising and supporting the informant.
The whistleblower protection measures provided for in the law shall also apply, where appropriate, to:
persons who, within the framework of the organization in which the whistleblower provides services, assist the whistleblower in the process,
persons who are related to the whistleblower and who may suffer retaliation, such as co-workers or relatives of the whistleblower, and
legal entity, for whom he/she works or with whom he/she maintains any other type of relationship in a work context or in which he/she holds a significant participation. For these purposes, it is understood that the participation in the capital or in the voting rights corresponding to shares or holdings is significant when, due to its proportion, it allows the person who holds it to have the capacity to influence the legal entity in which it has an interest
Are there any stipulations as to who may investigate a report?
The management of internal information systems may be carried out in-house or by a third party.
Are entities with fewer than 50 workers exempt?
Yes. However, it will apply, despite the number of employees to:
companies falling within the scope of the European Union acts on financial services, products and markets, prevention of money laundering or terrorist financing, transport safety and environmental protection referred to in Parts I.B and II of the Annex to the Directive, will be governed by their specific regulations, regardless of the number of employees they employ. In these cases, the law on whistleblowing shall apply to the extent not regulated by their particular rules.
political parties, trade unions, business organizations and foundations created by them, provided that they receive or manage public funds.
If an exempt organisation implements a whistleblowing scheme will the Directive / implementing law apply?
Yes (article 10,2 of the law)
Are there any specific timescales that apply (e.g. for acknowledgements and responses) (Yes/No)?
Sending acknowledgement of receipt of the communication to the informant, must be carried out within 7 calendar days of receipt, unless this could jeopardize the confidentiality of the communication.
Investigation may not exceed 3 months from receipt of the communication or, if no acknowledgment of receipt was sent to the informant, 3 months from the expiration of the seven-day period following the communication, except in cases of particular complexity requiring an extension of the period, in which case, this may be extended for a maximum of three additional months
Can reports be made anonymously?
Yes.
Are private sector entities required to accept and follow up on anonymous reports?
No.
Remedies for retaliation
During the investigation procedure and up to two years after the end of the investigation procedure (may be extended by the competent authority), conduct that can be qualified as retaliation is expressly prohibited and declared null and void. Retaliation includes:
Suspension of the employment contract, dismissal or termination of the employment or statutory relationship, including the non-renewal or early termination of a temporary employment contract once the probationary period has expired, or early termination or cancellation of contracts for goods or services, imposition of any disciplinary measure, demotion or denial of promotions and any other substantial modification of working conditions and the failure to convert a temporary employment contract into an indefinite one, in the event that the employee had legitimate expectations that he/she would be offered an indefinite job; unless these measures were carried out as part of the regular exercise of management power under labor legislation or the corresponding public employee statute, due to circumstances, facts or accredited infractions, and unrelated to the presentation of the communication.
Damages, including those of a reputational nature or economic losses, coercion, intimidation, harassment, or ostracism.
Negative evaluation or references regarding work or professional performance.
Inclusion in blacklists or dissemination of information in a specific sector, which hinder or prevent sector, which hinder or impede access to employment or the contracting of works or services. services.
Denial or cancellation of a license or permit.
Denial of training.
Discrimination, or unfavorable or unfair treatment.
Are group-wide reporting channels permitted?
Yes, companies in the private sector employing 50 to 249 employees may, if they so decide, share the internal information system and the resources allocated to the management and processing of communications.
