- Anonymous reporting is excluded from the law, and anonymous whistleblowers do not enjoy any protection
- Whistleblowers will be on their own
- The draft law that was adopted today by the Chamber of Deputies, transposes the European Directive only selectively
The PSD-PNL-UDMR-Minorities Group coalition does not want the protection of whistleblowers – people who, by revealing violations of the law, contribute to preventing and combating corruption. By the amendments made on Tuesday, 28 June, to the draft Law on the protection of whistleblowers in the public interest, by the Legal Commission, and their adoption in plenary on Wednesday, June 29, the mechanisms that were supposed to protect the whistleblowers are diminished, constitutional provisions are violated and Romania risks entering into infringement proceedings for the selective implementation of the European Directive on the matter.
The signatory organizations, together with whistleblowers will notify the People’s Advocate and inform the relevant European bodies.
Below are the main changes introduced by Law on the protection of whistleblowers in the public interest, which will replace, after promulgation, the law that is in force now (Law no. 571/2004):
The law passed by Parliament has eliminated anonymous reporting, although anonymity is an effective protection measure for whistleblowers. Thus, the focus will continue to be on the whistleblower and not on the signaled abuse, and in practice, instead of investigating the content of the notifications and violations of the law, the whistleblowers, their reputation, motivation and person will be investigated. Whistleblowers are discouraged from the outset from reporting violations of the law, knowing that most of those who have reported so far have been persecuted in their institutions. Moreover, anonymous reporting is also an effective practice in the private sector, a practice that prevented operational and reputational risks.
The law adopted by the Parliament restricts the possibility of public disclosure of cases of violation of the law, beyond the provisions European Directive on the subject, and under the standards already established by Law no. 571/2004. In order to be able to publicly disclose violations of the law, whistleblowers must wait at least 3 months from the date they reported both internally (within the institution to which they belong) and externally (to other state institutions or National Integrity Agency). Thus, the law adopted by the Parliament diminishes the level of protection already existing by Law no. 571/2004. This violates art. 25, par. 2 of the Directive (more favorable treatment clause or non-regression clause). In practice, the introduction of this 3-month period until public disclosure is allowed gives employers enough time to retaliate against whistleblowers.
The law adopted by Parliament selectively transposes the relevant European Directive, which will trigger an infringement procedure by the European Commission. No key articles of the Directive have been transposed, which concern: protection of the warning of liability for breach of confidentiality (Article 13, lt. g), protection of anonymous whistleblowers, which are subsequently identified (Article 6, par. 3), protection of defamation, infringement of copyright, breach of professional secrecy, breach of data protection rules, disclosure of trade secrets (art. 21, par. 7), provision of reparatory measures and full compensation for damages (art. 21, par. 8) (see table 1).
The principle of good faith of the whistleblower in the public interest has disappeared from the law adopted by the Parliament (see table 2).
Integrity warnings are destroyed after 2 years, although the Directive stipulates that they are kept for as long as necessary and proportionate (see table 2).
Very small administrative-territorial units, with less than 10,000 inhabitants, cannot associate to enforce the law, contrary to the recommendations of the Directive (see table 2).
Companies with less than 50 employees in the field of energy, capital market, investment funds, insurance, voluntary pensions, etc. are exempted from the establishment or maintenance of internal reporting channels and procedures for internal reporting and subsequent action (see table 2).
The adopted law introduced vague, interpretable wording in order to reduce the level of protection of whistleblowers. For example, the phrase „reporting is necessary at the time of its formulation”, without explaining why it is necessary.
The law passed by Parliament reduced the fine by two-thirds for ordering retaliation at least twice for the same reporting.
Civil society’s recommendations and amendments on increasing the level of protection of whistleblowers, repeatedly sent to members of the Judicial Committee of the Chamber of Deputies, were not even presented or discussed in the debates on Tuesday, June 28, and no parliamentarian proposed their introduction into the draft law.
Due to the presence and arguments of civil society in the discussions at the level of the Judicial Committee on 28 June, a number of amendments were withdrawn, amendments that would have profoundly distorted the meaning of the law. See table with amendments withdrawn due to the involvement of the civil society.
The law passed by Parliament assures free legal aid for whistleblowers during disciplinary proceedings. It remains to be seen how this provision will become effective in practice.
Table 1 – Provisions of the Directive which have been removed from the draft law and which entail the continuation of the infringement procedure. Practically, a part of the Directive has not been transposed. Romania has already received a letter regarding the initiation of the infringement procedure from the European Commission as it missed the deadline for transposition, December 17, 2021:
|No||Article removed from the draft law, amendment rejected both in the Judicial Committee and in plenary||The transposed text of the Directive|
|1||Art. 15, paragraph (1), letter i) a model statement containing the conditions under which the whistleblower is protected from liability for breach of confidentiality.||Article 13, letter g) a statement clearly explaining the conditions under which persons reporting to the competent authority are protected from liability for breach of confidentiality|
|2||Art. 20, par. 3 The measures provided for in this Chapter shall also apply. d) the whistleblower in the public interest who, anonymously, reported or publicly disclosed information regarding the violations, but is subsequently identified and suffers retaliation;||Article 6, par. 3. Persons who, anonymously, have reported or publicly disclosed information on infringements but are subsequently identified and are retaliated against shall nevertheless enjoy the protection provided for in Chapter VI, provided that the conditions set out in paragraph 1 are met.|
|3||Amendment MJ (PNRR) art. 21, paragraph (5) In legal proceedings, which concern infringements such as infringement of the right to image, infringement of copyright, infringement of professional secrecy, infringement of data protection rules, disclosure of trade secrets or actions for damages, no liability may be incurred provided in art. 2 and art. 20 par. (3) as a result of reports or public disclosures made under the conditions of this law. The persons provided in art. 2 and art. 20 par. (3) have the right to invoke public reporting or disclosure in order to pursue the closure of the case, provided that they have had reasonable grounds to believe that the public reporting or disclosure was necessary to disclose a violation of the law under this law.||Article 21, para. (7), first sentence of the Directive
„In legal proceedings, including defamation, infringement of copyright, breach of professional secrecy, breach of data protection rules, disclosure of trade secrets or claims for compensation under private or public law or collective labor law, may engage the liability of the persons referred to in Article 4 as a result of public reporting or disclosure in accordance with this Directive. Such persons shall have the right to rely on such public reporting or disclosure in order to pursue the closure of the case, provided that they have had reasonable grounds to believe that public reporting or disclosure was necessary to disclose an infringement under this Directive. „
|4||Amendment MJ (PNRR) art. 21, paragraph (6)
(6) If a person publicly reports or discloses information regarding violations of the law under the conditions of this law and this information includes trade secrets, such public reporting or disclosure is considered legal under the conditions of Article 3 par. (2) of the Government Emergency Ordinance no. 25/2019 on the protection of undisclosed business know-how and business information that constitute trade secrets against illegal acquisition, use and disclosure, as well as for amending and supplementing certain normative acts.
|Article 21, para. (7), second sentence of the Directive
„Where a person publicly reports or discloses information relating to infringements falling within the scope of this Directive and that information includes trade secrets and that person fulfills the conditions set out in this Directive, such public reporting or disclosure shall be deemed to be under Article 3 (2) of Directive (EU) 2016/943.
|5||Amendment MJ (PNRR) art. 21, paragraph (7) The persons provided in art. 2 and art. 20 par. (3) who have made a public reporting or disclosure under the conditions of this law have the right to full compensation for the damage suffered as a result of public reporting or disclosure.”||Article 21, para. (8) of the Directive
„Member States shall take the necessary measures to ensure that reparation measures and full compensation are provided for those damages suffered by the persons referred to in Article 4 in accordance with national law.”
Table 2 – Amendments adopted contrary to the provisions of the Directive
|What the adopted amendments say||What the Directive says|
|Article 7, par. 2. The authorities, public institutions, other legal persons governed by public law, as well as legal persons governed by private law shall keep records of all reports received in compliance with the requirements of confidentiality. Reports are kept for 2 years. After the expiry of the two-year storage period, they shall be destroyed, regardless of the medium on which they are kept.||Article 18, par. 1 Reports shall be kept for as long as is „necessary and proportionate to comply with the requirements of this Directive or other requirements of Union or national law”.|
|Article 9, para. 3. Administrative-territorial units with at least 10.000 inhabitants may group together and use or share resources with regard to the receipt of reports of infringements and subsequent actions.||Article 8, para. 9. „Member States may provide for the possibility of sharing internal reporting channels between municipalities” with reference to „municipalities with less than 10.000 inhabitants or less than 50 workers”|
|Article 9, par. (6) The legal persons of private law that have at least 50 employees fall within the scope of the normative acts provided in Annex no. 3 establish or maintain internal reporting channels and procedures for internal reporting and subsequent action.||Article 8 (3) and (4) of the Directive
Paragraph 1 shall apply to private sector legal entities with at least 50 employees.
4. The threshold provided for in paragraph 3 shall not apply to entities falling within the scope of the Union acts referred to in Part IB and Part II of the Annex.
Table 3 – Amendments withdrawn due to the involvement of civil society.
|No.||Proposed amendment that would have hijacked the purpose of the law||Status of the amendment|
|1||In court proceedings, which concern violations such as violation of the right to image, violation of copyright, violation of professional secrecy, violation of data protection rules, disclosure of trade secrets or actions for damages, the liability of persons provided in art. 2 and art. 20 para. (3) as a result of reports or public disclosures made under the conditions of this law.||Withdrawn amendment|
|2||The removal of the following article:
The court may order, by way of the presidential ordinance, even if there is no judgment on the merits, the suspension of the measures provided in art. 22.
|3||The removal of the following article:
(1) At the request of the whistleblower under disciplinary investigation following internal, external reporting or public disclosure, disciplinary commissions or other similar bodies within the authorities, public institutions, other legal persons under public law or legal persons under private law shall to invite the press and a representative of the trade union or professional association or a representative of the employees, as the case may be.
(2) The announcement is made by communiqué on the website of the authority, public institution, legal person of public law or legal person of private law at least 3 working days before the meeting, under the sanction of nullity of the report and of the disciplinary sanction applied.
Asociația pentru Cooperare și Dezvoltare Durabilă
Asociația pentru Apărarea Drepturilor Omului în România – Comitetul Helsinki (APADOR-CH)
Federația Sindicală Hermes
European Ethics and Compliance Association
CeRe: Centrul de Resurse pentru participare publică
Federatia Sindicatelor din Societatea Română de Radiodifuziune
Centrul pentru Inovare Publică
Sindicatul Român al Jurnaliștilor MediaSind
Asociația pentru Tehnologie și Internet
Asociația Română pentru Transparență I Transparency International Romania
Asociația Rise OUT
Asociația Parcul Natural Văcărești
Centrul pentru Jurnalism Independent
Asociația Mediawise Society
Asociația Miliția Spirituală
Frontline Club Bucharest
Fundația pentru Dezvoltarea Societății Civile
Asociația Profesională a Transportatorilor APT, președinte Ivan Tudor Florian, secretar general Nedelcu Gheorghe, avertizori de integritate
Asociația Pentru Drepturile Omului Imaginea României, președinte Stoica Gabriel
Uniunea Romilor din Europa, primvicepreședinte Ivan Gheorghe, avertizor de integritate
Alianța Națională a Sindicatelor Feroviare, președinte Maxim Rodrigo, avertizor de integritate
Asociația Națională a Patronatelor Operatorilor în Regim de Taxi, președinte Nedelcu Remus
Fundația pentru Drepturile Omului-CELEST, președinte avocat Rosini Claudius
Federația Transpublic a Sindicatelor din Transportul Public Local, președinte Valer Ciobanescu, avertizor de Integritate
Sindicatul Transpublic din STB, secretar general Ivan Marieta, avertizor de integritate
Asociația Pentru Drepturile Omului Imaginea României, președinte Stoica Gabriel
Mihaela Cuțui Pardos
Adrian Valentin Moise
Simion Daniel Petrică