Art. 2 (2) - Extension of material scope beyond EU law
Art. 4 (1) - Extension of personal scope (protected person)
The Rule No. 93/2021 brings the complex and extensive interpretation for the whistleblower, considered as the person who denounces or publicly discloses an infringement based on information obtained within the scope of their professional activity, regardless of the nature of this activity and the sector in which it is exercised, is considered a whistleblower (Art. 5 (1)), even if the professional activity has ended, or is still being constituted, in cases of pre-contractual negotiation or job interview (Art. 5 (3)). Moreover, in general terms, whistleblowers can be: a) Employees in the private, social or public sector; b) Service providers, contractors, subcontractors and suppliers, as well as any persons acting under their supervision and direction; c) Shareholders and persons belonging to administrative or management bodies or to supervisory or controlling bodies of legal persons, including non-executive members; d) Volunteers and interns, paid or unpaid (Art. 5 (2)).
Art. 6 (2) - Acceptance of anonymous reports
The anonymous whistleblower benefits from protection when he or she is subsequently identified (Art. 6(1)), provided that he or she acts in good faith, and has a strong basis to believe that the information is, at the time of reporting or public disclosure, true, in accordance with the whistleblowing and public disclosure procedure (Art. 6(2) and the whole Chapter II).
Art. 7 (2) - Encouraging internal reporting
Complaints are submitted preferably through internal channels (Art. 7(1)), exceptionally through external channels (Art. 7(2)), and restrictively through public channels (Art. 7(3)).
Art. 8 (7) - Obligation for legal entities in the private sector with less than 50 workers
Internal reporting channels are only mandatory for companies, private and public (public ones with exceptions), with more than 50 employees (Art. 8 (1))
Art. 8 (9) second subparagraph - Exemption for municipalities with fewer than 10.000 inhabitants / fewer than 50 workers / other entities with fewer than 50 workers
If the municipality cares for up to 10,000 inhabitants, even if it has more than 50 workers, it does not need to establish an internal reporting channel (Art. 7 (8)).
Art. 8 (9) Third subparagraph - Shared internal reporting channels for municipalities
Yes, shared internal reporting channels are the rule (Art. 8 (7)).
Art. 11 (1) - Authorities competent to receive external reports
a) O Ministério Público; b) Os órgãos de polícia criminal; c) O Banco de Portugal; d) As autoridades administrativas independentes; e) Os institutos públicos; f) As inspeções-gerais e entidades equiparadas e outros serviços centrais da administração direta do Estado dotados de autonomia administrativa; g) As autarquias locais; e h) As associações públicas. In English, a) Public Prosecutors; b) Criminal Police Bodies; c) The Bank of Portugal; d) Independent administrative authorities; e) Public institutes; f) General-Inspectorates and similar entities and other central services of the direct State administration with administrative autonomy; g) Local authorities; and h) Public associations.
Art. 11 (3) first sentence - Competence of authorities to decide on the minority of external reports
The rule is: “Member States may provide that the competent authorities, having duly examined the matter, may decide that a reported breach is manifestly of a minor nature and does not require further action under this Directive, other than to close the file. This does not affect other obligations or other procedures applicable to address the reported breach, nor the protection afforded by this Directive to internal or external whistleblowing. In such a case, the competent authorities shall notify the complainant of their decision and the reasons therefor (Art. 11 (3)).
Art. 11 (4) first sentence - Competence of authorities to decide on closing procedures regarding repetitive external reports
Yes. (Art. 14 (4,b))
Art. 11 (5) - Competence of authorities to handle particular external reports with priority
Art. 20 (2) - Financial assistance and support measures for reporting persons
Yes. The support is indirect and may be granted under measures for witness protection in criminal proceedings. (Art. 22 (2))
Art. 21 (1) first sentence - Protection measures against retaliation
Retaliation against the whistleblower is prohibited (Art. 21). The person acting retaliation must compensate for the damage caused (Art. 21 (4)), other legal measures to stop the acts are admitted (Art. 21 (5)), as well as the presumption of abusive disciplinary sanction applied to the whistleblower until 2 years after the communication (Art. 21 (7)), and intervention and protection of the authorities (Art. 22 (3)).
Art. 23 (1) - Penalties
All of these are provided for. Furthermore, the sanctions are many and can be summarised as administrative offences, crimes and fines (Art. 27, Art. 28 and Art. 29).
Art. 23 (2) first sentence - Penalties for false reporting
Controversial matter to be confirmed in the future.
Art. 25 (1) - Further national rights of reporting persons
Yes. Art. 3: 1 – The provisions of this law shall be without prejudice to the whistleblower protection regimes provided for in the sector-specific acts of the European Union referred to in Part II of the Annex to Directive (EU) 2019/1937 of the European Parliament and of the Council, or in the legislative acts implementing, transposing or complying with such acts, whereby, in all matters not provided for in such acts, or where this is more favourable to the whistleblower, the provisions of this law shall apply.
2 – The provisions of this law do not prejudice the application of other provisions for the protection of whistleblowers that are more favourable to the whistleblower or to the persons referred to in Article 6, paragraph 4, as the case may be.
3 – The provisions of this law shall not prejudice the application of national or European Union law on:
(a) The protection of classified information;
(b) protection of religious secrecy and of the professional secrecy of doctors, lawyers and journalists
c) The confidentiality of justice.
4 – The provisions of this law shall not prejudice the rules of criminal proceedings or of administrative or judicial proceedings in their administrative or judicial phase.
5 – The provisions of this law shall not affect
(a) the right of employees to consult their representatives or trade unions nor the protective rules associated with the exercise of that right;
b) The autonomy and the right of trade unions, employers’ associations and employers’ associations to conclude a collective bargaining instrument.
The practical application time is awaited for a better perception of the elements.