Monday, 10 January 2022

Whistleblowers Protection Law in Portugal

VolverOn the 20th of December, Law No 93/2021 was published, in which the General Regime for the Protection of Whistleblowers (GRPW) was created. This legislation transposed directive (EU) 2019/1937 of the European Parliament and the Council of 23rd October 2019 on the protection of persons reporting violations of EU law.

This law applies to the (i) public sector; (ii) financial services, products, and markets and the prevention of money laundering and terrorist financing; (iii) product safety and compliance; (iv) environmental protection; (v) food and animal safety, animal health and animal welfare; (vi) public health; (vii) consumer protection (viii) protection of privacy and personal data and security of the network and information systems; (ix) violent and organized crime, among others.

The whistleblower and his/her protection

A natural person who publicly denounces or discloses an offense based on information obtained in the course of his professional activity, regardless of the nature of that activity and the sector (private, social, or public) in which it is carried out, is considered a whistleblower.

In order to benefit from the protection conferred by the GRPW, the whistleblower must, while acting in good faith, have a serious basis to believe that the information is true.

Under the GRPW, whistleblowers may be:

• Employees

• Service providers, contractors, subcontractors, and suppliers, as well as any persons who act under their supervision

• Shareholders and persons belonging to management or management bodies or tax or supervisory bodies of legal persons, including non-executive members

• Volunteers and trainees

The protection conferred by this regime is extendable, with adaptations, (i) to those who assist the whistleblower in and whose aid must be confidential, to (ii) a third party who is connected to the whistleblower, in particular a co-worker or family member, and may be victim of retaliation in a professional context, and to (iii) legal persons or similar entities who are detained or controlled by the whistleblower, for which the whistleblower works or with which he is somehow connected in a professional context.

The obligation for companies to implement mechanisms

The GRPW requires that the entities in Part IB and II of the Annex to Directive 2019/1937 and legal persons which employ 50 or more workers to have internal reporting channels. Those entities who have between 50 and 249 employees may share resources concerning the receipt of complaints and their respective follow-up. This obligation applies to branches located in Portugal.

Internal reporting channels should allow the safe submission and follow-up of complaints to ensure the integrity of the complaint, the confidentiality of the identity or anonymity of the whistleblowers and the confidentiality of the identity of third parties mentioned in the complaint and prevent access of unauthorized persons.

Upon receiving the complaint, companies must:

• notify the whistleblower within seven days informing that the complainant was received, informing him, in a clear and accessible manner, of the requirements, competent authorities and form and if an external complaint is admissible;

• carry out the internal acts that are appropriate to the clarification of the allegations contained in the complaint and, where appropriate, putting a halt to the alleged infringement, including by opening an internal investigation or by communicating with the competent authority for investigating the infringement;

• communicate to the complainant the measures envisaged or taken to follow up the complaint and its reasoning, no later than three months from the date of receipt of the complaint;

Finally, internal reporting channels should be operated within the company, to receive and follow complaints, by persons or services designated for this purpose, but may also be operated externally.

Sanctioning regime

The violation of the rules laid down in the GRPW is subjected to penalties, being the national anti-corruption mechanism responsible for processing and apply the corresponding fines. The applicable fines may vary in the following terms:

• Between € 1,000 to € 25,000 (natural persons) or € 10,000 to € 250,000 (legal persons), in case of very serious offense;

• Between € 500 to € 12,500 (natural persons) or € 1,000 to € 125,000 (legal persons) in case of a serious offense

Entry into force

The law predicts a transitional period of 180 days and will therefore enter into force on the 18th June 2022. During the first half of 2022, companies should prepare themselves by establishing a whistleblowing channel, which allows the safeguarding of the guarantees of confidentiality, anonymity, and independence, provided by law, and with well-defined procedures to follow up complaints within the legal deadlines.

The Commercial and Corporate Law department of Belzuz Abogados in Portugal will continue to monitor changes, updates and developments related to money laundering and corruption prevention, being entirely available for clarification or advice on these topics.

Commercial and Corporate Law department | (Portugal)

 

Belzuz Abogados SLP

This publication contains general information not constitute a professional opinion or legal advice. © Belzuz SLP, all rights are reserved. Exploitation, reproduction, distribution, public communication and transformation all or part of this work, without written permission is prohibited Belzuz, SLP.

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