Law News – Labour Law Departament – March 2023
On 23 February the Official State Gazette published Law 2/2023, of 21 February 2023, Regulating the protection of persons reporting regulatory and anti-corruption infringements, transposing Directive 2019/1937.
- Purpose of the Law
Companies are under a duty to have an internal information system, commonly known as a “whistleblowing channel”, so that those people who are aware of certain punishable behaviours, can communicate them in-house. The Law provides a series of requirements that these channels (anonymous or not) must meet, including guaranteeing confidentiality, good practice in following up and investigating information and protecting whistleblowers. Likewise, a person responsible for ensuring that the whistleblowing channel is working correctly must be appointed, either in-house or outsourced.
Furthermore, there is enhanced protection for persons who carry out in-house communication reporting a breach by expressly prohibiting all acts constituting retaliation against them.
- Obliged subjects and deadlines
In the private sphere, it is mandatory for all those companies that have at least 50 workers. There are two different transitional periods for applying this Law: (i) A general transition period, to comply with the content of this rule, of 3 months from its entry into force (from 13 March to 13 June), applicable to all subjects with more than 250 workers; and (ii) an exceptional period, for those private companies with less than 250 workers, which will extend until 1 December 2023.
In the public sphere, all political parties, trade unions, business organisations, as well as foundations/entities that receive public funds for their financing.
- Personal scope of application
The field of protection sought by this Law encompasses all those who may be “whistleblowers”, whether they are workers, shareholders, participants and/or members of the governing body of companies in the process of incorporation and even those whose employment relationship has been terminated.
- Sanctions
The Law on Infractions and Sanctions in the Company Legal Order considers that a failure to comply with the obligation to have an in-house information system is a very serious infraction, which could lead to a penalty of between €600,001 and €1,000,000, which right now is also associated to the possibility of imposing a complete ban for obtaining public financial aid and undergoing into contractual relationship with the public administration up to 3 years.