After some back and forth, on December 20, 2021, Law No. 93/2021 was published, establishing the general regime for the protection of whistleblowers, transposing Directive (EU) 2019/1937 of the European Parliament and of the Council of October 23, 2019, on the protection of persons who report breaches of Union law.
The law applies as a rule to individuals who, in the course of their professional activity, become aware of acts or omissions contrary to the rules contained in European Union acts, to national rules implementing, transposing, or complying with such acts or to any other rules contained in legislative acts, including those providing for crimes or offenses relating to (i) public procurement, (ii) services, products, financial markets , prevention of money laundering and terrorist financing, (iii) product safety and compliance, (iv) transport safety, (v) environmental protection, (vi) radiation protection and nuclear safety, (vii) food and feed safety, animal health and animal welfare, (viii) public health, (ix) consumer protection, and (x) privacy, personal data protection and network and information systems security.
It is therefore foreseen that as of June 2022 – the date on which the law comes into force – that legal entities, including the State, employing 50 or more workers, will have an (internal) whistleblowing channel that allows secure submission and tracking of complaints in order to ensure the completeness, integrity and preservation of the complaint, and the confidentiality of the identity or anonymity of the whistleblowers.
The Public Prosecutor’s Office, criminal police entities, the Banco de Portugal (Bank of Portugal), local authorities, among others, should also create complaint channels (external) independent and autonomous from other communication channels, to receive and follow up specifically on this type of complaint, and if necessary, proceed with the respective criminal proceedings.
With the new whistleblower protection regime, acts of retaliation against whistleblowers are completely forbidden, and the law has listed, as far as possible, the acts and conducts that may be considered as such, in order to ensure a more effective protection.
However, once again, the transposition of the directive raises some problems, because it seems clear to us that the legislator should have gone beyond the scope of what is regulated.
First of all, it is very strange that exceptions to its scope of application have been established, namely in relation to local authorities with less than 10,000 inhabitants, which do not need to have channels for denouncements.
Local authorities are important decision centers and should be the target of the control mechanisms of the new law, giving the opportunity to the agents that relate to them to denounce procedures and decisions that result in an infringing practice. Without generalizing, the prospect of greater control over the decision-making process of these institutions and the fight against corruption was undermined by the wording given to the law.
Doubts are also left regarding the applicability of the whistleblower channels to the ministerial offices with fewer than 50 employees. Again, the law fell short of the directive’s provisions, and as a result, this important decision center was also exempted from a new control mechanism.
In short, we believe that the transposition of the directive may, because it is not ambitious, give rise to questions of interpretation or even call into question its application and effectiveness.
Cláudio Rodrigues Gomes @ DCM | Littler