What is new? What is important?
We inform you that 17th of December 2021 is the deadline for Member States of the European Union to transpose the EU Directive 2019/1937 of the European Parliament and of the Council of 23 October 2019 into the national law and, for this purpose, Romania has also drafted a bill entitled “The Law on the protection of the whistleblowers”, which shall enter into force on the abovementioned date.
As the subject is of interest to both employees and especially employers, we shall now present the most important new provisions of the future legislation.
- What is new?
This bill is not the first normative act that will regulate the field of whistleblowers in Romania. In 2004, the Romanian Parliament drafted Law no. 571/2004 on the protection of the personnel of public authorities, public institutions and other establishments who report violations of the law. This law is to be repealed and replaced.
It is important to note that, unlike Law no. 571/2004, which only covered the protection of whistleblowers working within a public authority, the new draft law will cover both whistleblowers working within public authorities and those working within private companies.
Moreover, unlike the provisions of Law no. 571/2004, the reports made under the new law shall cover not only disciplinary offences, misdemeanours, offences, and non-compliance with ethical and professional rules, but shall also cover non-compliance with provisions likely to contravene the object or purpose of law, whether they have already occurred or are likely to occur.
The acts that may be reported under the new law may be committed, as persons concerned by reporting, not only by persons in managerial or executive positions, persons appointed in scientific or advisory councils and special commissions, as the case of the currently-in-force law, but by any person employed by a public authority or a private legal person.
Thus, the legislative framework regulated by the draft law in question is clearer and broader than the one outlined by the provisions of Law no. 571/2004.
- What is important?
Within the entry into force of the new law, public authorities and private legal persons shall have new obligations and whistleblowers shall benefit from increased protection.
It is mentioned that whistleblowers shall be able to report violations of the law in three different methods:
- internal reporting (through internal channels provided by the authority or private legal person where the whistleblower operates);
- external reporting (through external channels, namely competent public authorities);
- public disclosure (by making information related to breaches of the law publicly available in any public way).
The reporting is mainly done through internal channels. However, reporting can also be done directly through external channels when the whistleblower considers that there is an increased risk of retaliation (actions or inactions determined by the report, harmful to the whistleblower) or when there are no internal channels.
In this regard, it is important for employers to note the fact that they are obliged to set up internal reporting channels:
- when they have at least 50 employees – in the case of public authorities and private legal persons (with the mention that, in the case of private legal persons which have this obligation according to the regulations provided in Annex 2 of the law, this obligation stands regardless of the number of employees);
- regardless of the number of their employees – in the case of autonomous companies, national companies, or companies where the state or a public authority is a shareholder.
In order to facilitate the implementation of internal reporting channels, the law provides for the possibility for private legal persons with between 50 and 249 employees, for public authorities with less than 50 employees, and for administrative-territorial units with fewer than 10,000 inhabitants, to group and operate together the resources needed for internal reporting.
In addition, for recording and reviewing reports and taking follow-up actions within internal channels, public authorities and private legal persons are required to designate a person, department or third party to act impartially and be responsible for the duties required by law.
Failure to comply with the obligation to set up internal reporting channels would constitute misdemeanour punishable by a fine in the amount of RON 2.500 to RON 25.000.
Furthermore, although the law is due to enter into force on 17th of December 2021, the obligation for private legal persons that have a number of employees between 50 and 249 to set up internal reporting channels does not enter into force until 1st of January 2023.
With regard to the whistleblowers’ exemption from liability, whistleblowers are not liable for their reports, provided that they had reasonable grounds to believe that the reporting was necessary for the disclosure of a violation of the law and also provided that the procurement of the reported information does not constitute an offence itself.
In addition, whistleblowers are protected by law against reprisals, in particular those relating to suspension or termination of employment, demotion, disciplinary actions, discrimination, causing damage (financial or reputational), etc.
If reprisals are ordered against the whistleblower, he or she may contest against them in front of the competent judicial court. The employer – a natural person, who ordered the reprisals, shall be jointly and severally liable with the authority or private legal person for the compensation of the damage caused to the whistleblower.
The bill provides a reversal of the burden of proof in the case of challenging retaliation, with employers having to prove that a measure ordered under labour law is justified for reasons other than reporting or public disclosure.
The violation of the provisions of the law on the protection of whistleblowers entails, as appropriate, civil, disciplinary, contraventional or criminal liability.
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The bnt Gilescu, Văleanu & Partners team is at your disposal both for the implementation of the new provisions and for any further details and information.