Whistleblower Channel

Answers to frequent questions about the whistleblower channel

Given the growing concern over the implementation of the Whistleblower Channel in corporations, Capllonch Advocats has prepared a compendium to clarify the most frequent doubts.

Objective of the Whistleblower Channel Regulation:

The Law 2/2023 transposes the EU Directive 2019/1937 on whistleblower protection into Spanish legislation, aiming to safeguard whistleblowers from potential retaliation for reporting legal infringements within a work or professional environment. Its goal is to promote a culture of reporting irregularities as a tool to prevent and detect risks to the public good.

Ways to File a Complaint:

There are three methods to make a complaint:

• Internal Channel: The main medium within private companies or public entities, given its proximity to the whistleblower and the facts.
• External Channel: As a complement to the internal one, it allows direct or subsequent complaints through the Independent Authority for Whistleblower Protection.
• Public Disclosure: This route is chosen when the previous ones are considered insufficient or inappropriate.

Difference Between Internal Information System and Whistleblower Channel:

The internal system encompasses the whistleblower channel, including the mailbox for receiving reports, the system manager, and the procedure for managing complaints, ensuring security, confidentiality, and independence.

Information Eligible for Complaint:

Any action or omission that infringes European Union Law within the framework of the acts listed in the Directive can be reported, especially those compromising the EU's financial interests or affecting the internal market, including serious criminal or administrative offenses affecting the Public Treasury and Social Security.

Exclusions from the Whistleblower Channel:

Classified information, those protected by professional secrecy, and certain infractions in contracting processes, among others, are out of scope.

Protection Under the Whistleblower Channel Regulation:

The regulation protects individuals within the work or professional scope, including employees, self-employed, shareholders, contractors, volunteers, and individuals in selection processes, extending also to worker representatives, whistleblowers' relatives, and related legal persons.

Exclusions from Protection:

Complaints based on inadmissible information, interpersonal conflicts without legal relevance, rumors, or actions outside the scope of the regulation are not protected.

Protection Measures Against Retaliation:

A protection framework against discriminatory acts or retaliation is established, shifting the burden of proof in favor of the whistleblower and contemplating corrective and compensatory measures.

Complaint Management:

The channel must allow written, verbal, or personal communications, being adequately documented and maintaining a record of all complaints and resulting internal actions.

Sanctioning Regime:

A system of sanctions classified according to their severity is foreseen, with fines varying depending on whether the offender is a natural or legal person, and additional measures such as public contracting bans.