The implementation of reporting channels in the various labor organizations is nothing new. Decree-Law no. 109-E/2021 of December 9 (RGPC) and Law no. 93/2021 of December 20 (RGPDI) were published in the DRE on 09.12.2021 and 20.12.2021, respectively.
In fact, both regulatory compliance regimes are fully in force, as well as the respective sanctioning regime in the event of non-compliance with the obligations resulting from them.
Similarly, the competent administrative body, NACM- the National Anti-Corruption Mechanism, has been implemented and has produced various working documents over the last quarter, particularly in terms of the creation and dissemination of guides and summary recommendations (see here).
Without prejudice to others, there is a common obligation between the RGPC and the RGPDI, which deserves particular mention: the implementation of at least one internal reporting channel. By way of example, here are some legal statements:
| Art. 5.º, n.º 1, of RGPC: | Art. 7.º, n.º 1, of RPDI |
| Covered entities adopt and implement a compliance program that includes at least a risk prevention plan for corruption and related infractions (PPR), a code of conduct, a training program and a reporting channel in order to prevent, detect and sanction acts of corruption and related infractions carried out against or through the entity. | Reports of infringements are submitted by the whistleblower through internal or external reporting channels or made public. |
| Art. 8.º, n.º 1, of RGPC: | Art. 8.º, n.º 1, of RGPDI: |
| The entities covered have internal reporting channels and follow up on reports of acts of corruption and related offenses in accordance with the legislation transposing Directive (EU) 2019/1937 of the European Parliament and of the Council of 23 October 2019 on the protection of persons who report breaches of Union law. | Legal persons, including the State and other legal persons governed by public law, employing 50 or more workers and, independently of this, entities falling within the scope of the European Union acts referred to in part i.B and ii of the Annex to Directive (EU) 2019/1937 of the European Parliament and of the Council, hereinafter referred to as obliged entities, have internal reporting channels. |
The law is clear about the requirements and characteristics of these reporting channels: (i) they allow for the secure submission and follow-up of reports, (ii) in order to guarantee the completeness, integrity and preservation of the report, (iii) the confidentiality of the identity or anonymity of the complainants and (iv) the confidentiality of the identity of third parties mentioned in the report, and to prevent access by unauthorized persons (art. 9, no. 1 of the RGPDI). In addition, these channels must ensure that complaints are received and followed up (Article 9(2) of the RGPDI). The duties of independence, impartiality, confidentiality, data protection, secrecy and absence of conflicts of interest must be guaranteed on the part of whoever manages, or for that matter is responsible for, said channel (Article 9(4) of the RGPDI).
From the point of view of configuration (form and admissibility), the whistleblowing channel must allow written or verbal reports, either anonymous or with the identification of the complainant (Article 10(1) of the RGPDI). Where complaints are made verbally, internal whistleblowing channels allow them to be submitted by telephone or other voice messaging systems and, at the request of the complainant, in a face-to-face meeting (Article 10(2) of the RGPDI).
The law also states that complaints can be submitted using electronic authentication means with a citizen’s card or digital mobile key, or using other electronic identification means issued in other Member States and recognized for this purpose under Article 6 of Regulation (EU) No 910/2014, provided that, in any case, the means are available (Article 10(3) of the RGPDI).
Nothing is said, however, about whether there are additional characteristics or implicit requirements not expressly covered by the RGPC and the RGPDI. Let’s see. If it is decided to implement a whistleblowing channel via software or an app, or a similar electronic system (i.e. using technology), is there a risk that the same whistleblowing channel will be considered “discriminatory” in the face of, for example, “info-excluded” workers who do not know how to use the technologies in question? Could a highly complex app be considered by NACM to be an obstacle or a constraint to making complaints?
It seems to us that these doubts can be seen in terms of an implicit obligation on the part of labor organizations, subject to this regime, to guarantee effectiveness (equality, non-discrimination and inclusion) in the implementation of internal whistleblowing channels. This could (or should) be the subject of prior assessment, as well as special care when parameterizing the channel, but above all the duty to train and communicate (about) the same channel (or channels).
We’ll keep an eye out for further developments.
Tiago Sequeira Mousinho @ DCM | Littler
