The adoption of the EU Whistleblower Protection Directive by the Portuguese Legal System

Ana Bruno & Associados, Sociedade de Advogados, RL | View firm profile

The Whistleblower Protection Directive was transposed into the Portuguese legal system by the Law 93/2021 published on December 2021.

Without prejudice to the application of other laws in which measures have already been taken to protect whistleblowers, the law under study, will cover violations with seriously damaging to the public interest, which have already occurred, are being committed or whose commitment can reasonably be expected as well as the attempt to hide such infractions, in the following areas:

  1. Public procurement;
  2. Financial services, products and markets and prevention of money laundering and terrorist financing;
  3. Product safety and compliance;
  4. Transport security;
  5. Protection of the environment;
  6. Radiation protection and nuclear safety;
  7. Food safety for human and animal consumption, animal health and animal welfare;
  8. Public health;
  9. Consumer defense;
  10. Protection of privacy and personal data and security of the network and information systems.
  11. Union financial interests referred to in Article 325 of the Treaty on the Functioning of the European Union (TFEU);
  12. Internal market rules referred to in Article 26 (2) TFEU, including competition and state aid rules, as well as rules on corporate taxation;
  13. Violent, especially violent and highly organized crime;

Benefit from the protection provided by this law, natural persons who denounce or publicly disclose an infraction based on information obtained in the scope of their professional activity, regardless of its nature, and the contract may be in force or have already ended or is still before a recruitment process or during another pre-contractual negotiation phase of an unstated professional relationship. Given what can be considered whistleblowers:

  1. Private sector or public sector workers;
  2. Service providers, contractors, subcontractors and suppliers, as well as any persons acting under their supervision and direction;
  3. Holders of shareholdings and persons belonging to administrative or management bodies or to fiscal or supervisory bodies of legal persons, including non-executive members;
  4. Volunteers and interns paid or unpaid.

However, the protection granted by this diploma is broader and goes beyond the protection of the whistleblower, also protecting those who in some way relate to the whistleblower, so law also protected:

  1. The natural person who assists the whistleblower in the whistleblowing procedure and whose assistance must be confidential, including union representatives or workers’ representatives;
  2. The third party who is connected to the whistleblower, namely a co-worker or family member, who may be the target of retaliation in a professional context; and
  3. Legal persons or similar entities that are owned or controlled by the whistleblower, to whom the whistleblower works or with whom he is in some way connected in a professional context.

To make the denunciation effective, the law requires that several whistleblowing channels be made available to whistleblowers: internal channels (established within the organizations themselves), external channels (competent authorities) or public disclosure.

Internal channels are priority, establishing that external complaints should only be used when there is no internal complaint channel, when the internal whistleblower channel only admits the submission of complaints by workers, not being the whistleblower, when there are reasonable grounds for believing that the infraction cannot be effectively known or resolved internally or that there is risk of retaliation and even when an internal complaint was initially filed without having been communicated to the complainant, within the legally established deadlines, the measures envisaged or adopted following the complaint.

In relation to public disclosure, this can only occur when the whistleblower has reasonable grounds to believe that the violation may constitute an imminent or manifest danger to the public interest; that the offense cannot be effectively known or resolved by the competent authorities, given the specific circumstances of the case, or that there is a risk of retaliation even in the event of an external complaint; or has filed an internal complaint and / or an external complaint, without adequate measures being taken within the prescribed deadlines.

The internal whistleblowing channels are mandatory for private sector and public sector organizations if they employ 50 or more workers and for legal persons that develop their activity in the fields of financial services, products and markets and prevention of money laundering and the financing of terrorism, transport security and environmental protection. Exempt from this obligation are local authorities which, although employing 50 or more workers, have less than 10,000 habitants.

The law also establishes the minimum requirements regarding the procedures for receiving complaints and follow-up to be implemented, namely perpetual deadlines.

The presentation of complaints can be made in writing, verbally or in both ways, and if made verbally this can happen via voice message, or at the request of the whistleblower, in a face-to-face meeting, in which case it must be subject to an audio record or documented in minutes signed by the whistleblower.

The whistleblower is an active part in the whistleblowing process, the obligated entities must, within seven days after receiving the whistleblower, notify the whistleblower of the receipt of the complaint and the requirements for filing the external complaint and within a maximum of three months communicate the measures envisaged or adopted to follow up on the complaint. If the whistleblower requests it, the obliged entities must also communicate the result of the analysis made to the whistleblower, within fifteen days after its conclusion.

In the implementation of these internal channels, which in the case of private entities and that employ between 50 and 249 the service for receiving complaints and the respective follow-up can be outsourced, independence, impartiality, confidentiality must always be guaranteed, data protection, confidentiality, and the absence of conflicts of interest in the performance of duties.

The confidentiality of the whistleblower’s identity must always be safeguarded and should only be revealed because of a legal obligation or court decision, preceded by communication to the whistleblower indicating the reasons for disclosure, unless the provision of the information compromises investigations or legal proceedings related.

Anonymous reporting is possible on external reporting channels.

The final scope of the law is precisely the protection of the whistleblower and in this sense specific protection measures are provided for, such as the prohibition of retaliation against the whistleblower and related persons, in which they benefit from the presumption that the following acts, when practiced one year after the denunciation or public disclosure, are presumed motivated by the denunciation or public disclosure:

  1. Mandatory and unilateral changes in working conditions, such as duties, hours, place of work and pay, or non-compliance with work duties;
  2. Suspension of the employment agreement;
  3. Negative performance evaluation or negative reference for employment purposes;
  4. Failure to convert a fixed-term employment contract into an open-ended contract,
  5. whenever the worker had legitimate expectations in this conversion;
  6. Non-renewal of a fixed-term employment contract;
  7. Dismissal;
  8. Inclusion in a list, based on a sector-wide agreement, which may lead to the inability of the complainant to find employment in the sector or industry concerned in the future;
  9. Resolution of supply or service contract;
  10. Application of disciplinary sanction.

In addition to this presumption, whistleblowers also benefit from support measures, such as the right to legal protection and measures to protect witnesses in criminal proceedings.

The whistleblower, provided he acts under the law, is irresponsible, insofar as the denunciation or public disclosure will not constitute grounds for disciplinary, civil, administrative, or criminal liability.

The whistleblower will only be liable if, in any way, he undermines the duty of confidentiality of the identity of the people who are referred to as perpetrators of the offense or who are associated with it, in violation of the presumption of innocence or legally recognized procedural guarantees.

One last note to mention that violations of the provisions of this law will cause its authors to incur administrative offenses, to be applied by the national anti-corruption mechanism, punishable by fines between € 1.000.00 and € 125.000.00, depending on whether they are per person individual or collective and constitute a serious or very serious offense.

This law takes effect in June 2022.

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