Spain faces ECJ case for failing to introduce whistleblower protection
Originally published by democrata.es on 3 March 2023
In last week of February, Spain’s long-awaited law on the protection of whistleblowers was officially passed. The action comes late, more than a year after the transposition deadline of December 2021. The European Commission has brought a case before the Court of Justice of the European Union to sanction countries that have failed to regulate.
The law is a direct result of the European Directive which has triggered a wave of updates and new laws in member states to protect whistleblowers. It took more than three years since the adoption of the Directive in 2019, and many years after, a regulation at national level.
Spain, along with other countries such as the Czech Republic, Germany, Estonia and Italy, was repeatedly warned about the delays in the transposition process in January and July of 2022. As they did not respond, a sanctioning process has finally been opened (INFR-2022-0073), posting both a regulatory and reputational risk.
On 12 March this law will enter into force, giving companies and other entities obliged to have an internal information system 3 months, extending this deadline to 1 December 2023 for large companies and administrations. Kicking off implementation in the country will post huge challenges, as there is no direct antecedent of putting such communication and information systems into place at such scale.
A law that does not respect the provisions of the European Directive
Many are awaiting the entry into force of this law to finally witness the potential benefits of a long-awaited instrument. However, the result is seriously flawed, according to expert organisations, including Blueprint for Free Speech. If assessed in the same way in the ECJ, the law could be defined as unsuitable for transposition.
Civil society has been vitally important throughout the process, flagged repeatedly (here o here) since the publication of the first draft on these risks. In September 2021, 25 organisations have agreed on a number of priorities that unfortunately have not been fully considered. The Whistleblowing International Network (WIN) has written to the European Commission's Directorate-General for Justice, highlighting the key points.
The law in Spain fails to protect whistleblowers who report abuses of authority, limiting itself to regulating actions or omissions that constitute serious and very serious criminal or administrative offences. This represents a contradiction with the provisions of the Directive.
The present law introduces serious uncertainties regarding the criminal liability of whistleblowers, making it possible to use this law to prosecute whistleblowers. The Directive establishes that whistleblowers will not incur any criminal liability for acquiring and accessing the information used to disclose the facts. This may soon turn this opportunity to protect whistleblowers in the public interest into a tool to intimidate and persecute them.
For her part, Suelette Dreyfus, Executive Director of Blueprint for Free Speech, remarks:
"This is a partially missed opportunity for Spain, where we have been fighting for exemplary legislation. We believe that this first step can be improved and we hope that legislators can understand the importance and necessity of doing so. The European Union also has a role to play in reaching the desired standards".
Spain has finally passed a national whistleblower protection law, however, it is necessary that legislators can address and react to these shortcomings, in order to achieve an efficient and effective implementation of the law, reaching the main objective: to protect those who stand up for the public interest.