Art. 2 (2) - Extension of material scope beyond EU law
Yes. The material scope has been extended to infringements of national criminal, administrative and employment law.
Art. 4 (1) - Extension of personal scope (protected person)
The personal scope has been extended to former employees, volunteers, trainees, legal representatives of employees and even persons with whom an employment relationship has not yet started and who have obtained relevant information, e.g. in recruitment processes.
Art. 6 (2) - Acceptance of anonymous reports
The draft establishes the obligation for all obliged entities to allow anonymous reporting in internal and external channels.
Art. 7 (2) - Encouraging internal reporting
The draft expressly states that internal channels are the “preferred channel” but It does not establish incentives to use them over external channels. In fact, it seems more attractive to complain through external channels because they have more procedural safeguards.
Art. 8 (7) - Obligation for legal entities in the private sector with less than 50 workers
Legal entities with fewer than 50 workers are not required to establish internal reporting channels. However, it could be interpreted as there is an exception because all political parties, trade unions, business organisations and foundations they have created that recieve public funds are obliged to have an internal channel regardless of the number of workers they have.
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
All public entities are obliged to have an internal channel even if they have less than 10.000 inhabitants.
Art. 8 (9) Third subparagraph - Shared internal reporting channels for municipalities
Municipalities with less than 10.000 inhabitants, among themselves or with any other public administration located within the territory of the Autonomous Community, may share the internal channels.
Art. 11 (1) - Authorities competent to receive external reports
The competent authority for receiving external reports will be the Independent Authority for Whistleblower Protection (Autoridad Independiente de Protección al Informante), which has not yet been created.
Art. 11 (3) first sentence - Competence of authorities to decide on the minority of external reports
Art. 11 (4) first sentence - Competence of authorities to decide on closing procedures regarding repetitive external reports
Art. 11 (5) - Competence of authorities to handle particular external reports with priority
Art. 20 (2) - Financial assistance and support measures for reporting persons
The draft establishes the following support measures for whistleblowers: (i) right to information and independent and complete advice on available procedures and remedies; (ii) asistance by the competent autorithies against any kind of retaliation; (iii) financial and psychological support.
Art. 21 (1) first sentence - Protection measures against retaliation
Two relevant protection measures against retialation have been established: (i) reprisals may not be imposed in those cases that the complaint was made in good faith even if the facts are later proved to be untrue; (ii) a iuris tantum presumption is established in cases where a person has made a report and has subsequently been sanctioned.
Art. 23 (1) - Penalties
Please provide how high are respective penalties:
(a) hinder or attempt to hinder reporting: this kind of action may imply sanctions from 10.001 to 300.000 euros to individuals and sanctions from 100.001 to 1.000.000 to entities.
(b) retaliate against reporting person: this kind of action may imply sanctions from 30.001 to 300.000 euros to individuals and sanctions from 600.001 to 1.000.000 euros to entities.
(c) persons bringing vexatious proceedings against reporting person: this kind of actions may imply sanctions from 30.001 to 300.000 euros to individuals and sanctione from 600.001 to 1.000.000 euros to entities.
(d) breach the duty of maintaining the confidentiality of reporting persons: this kind of action may imply sanctions from 10.001 to 300.000 euros to individuals and sanctions from 100.001 to 1.000.000 to entities.
Art. 23 (2) first sentence - Penalties for false reporting
The sanctions range from 30.001 to 300.000 euros in the case of individuals.
Art. 25 (1) - Further national rights of reporting persons
There is an additional provision that needs to be pointed out: the draft establishes that when a person who commited an administrative offence reports its existence by submitting the information before the notification of the initiation of an investigation, the competent authority to resolve the procedure may exempt him from compliance with the corresponding administrative sanction i certain requirments are met.