Law No. 93/2021, of December 20, aims, as is known, to transpose into Portuguese law the Directive No. 2019/1937, of October 23, 2019. This Directive stood out, first of all, for the enormous number of “recitals” – no less than 110 – which took up 17 pages of the official publication. Some of these recitals did not even had (or have) a direct correspondence in the articles. They constitute a leafy forest from which emerges the set of guiding rules for national whistleblower protection regimes, which make up the body of the Directive itself.
The national law, drafted with the manifested concern to echo as faithfully as possible the message of the European legislator, raises numerous problems of interpretation and application. Our interest right now, however, is focused on the sheaf of “recitals” that the Directive has put on the table. What legal value should be assigned to it?
If the Directive were a set of rules susceptible of direct application – like a national law -, it would be necessary to reduce its value to that of an auxiliary element for the interpretation of the articles, rendering useless all recitals that had no direct replication in the Directive, i.e., that did not take on a true normative form. But the Directive – like almost all of them – has no immediate regulatory effect, it only constitutes a guideline, a directive addressed to the national legislator, with a defined deadline for its implementation.
Thus, it can be said that the whole text – “recitals” included – deserves similar attention. The recitals contribute to the clarification of the concerns and purposes of the European legislator, and develop a set of values and rationales that the national legislator should also assume in the construction of the transposition regime. In this sense, it can be said that the recitals are just as important as the articles; everything lies in the fact that the latter are transposed in harmony with the preamble.
A good example is offered by Tiago Mousinho’s text published a few days ago in this blog, about complaints regarding labor infractions. In the Directive’s articles, they are omitted, but a “recital” points in its direction. However, Law 93/2021, faithful to the Directive’s articles but unfaithful to the “recitals”, keeps silent about them.
Moreover, in this very field – that of labor law violations – one might ask whether the new and much-vaunted legal regime for the protection of whistleblowers, originating from a directive that consumed long months of tortuous negotiations, offers any added value in relation to what Portuguese labor law already established with regards to possible retaliatory conduct by employers.
António Monteiro Fernandes, Of Counsel @ DCM | Littler