Spain Refuses to Divulge Details of Draft EU-Mandated Whistleblower Law

Two weeks before Spain is supposed to meet a European Union deadline for member states to implement its new Whistleblower Protection Directive, the government said their law still in draft form and rejected a request by transparency groups to release it.

Blueprint for Free Speech, Access Info and seven other organizations asked about the current status of Spain’s new whistleblowing law and called on the Ministry of Justice to make the information public. Spain is one of several countries in the EU that lacks a national whistleblower protection law at present.

EU member states have until 17 December to transpose the Whistleblower Protection Directive into national law. The Directive obliges businesses with more than 50 employees to have a reporting channel, a limit of three months for responses and forbids reprisals against whistleblowers. It also waives legal liability for whistleblowers for violating disclosure restrictions and requires companies to inform their workers about how to protect themselves against retaliation.

"The government should inform the public about the status of any new regulations, in line with its commitments in the Fourth Open Government Action Plan to have a transparent and participatory process on this future law, as well as to improve the transparency of decision-making and legislative processes in general," said Helen Darbishire, Executive Director of Access Info.

Blueprint Executive Director Suelette Dreyfus said, "This is an opportunity for the Spanish government to shine, it can move Spain from being the worst place in Europe in terms of whistleblower protection to the best place, in one fell swoop.

“It is not a right-wing or left-wing law, it is a law to protect whistleblowers, it is about good governance, it is about transparency, openness, accountability and preventing corruption,” she said.

The groups noted that protecting whistleblowers could save 6-9 billion euros a year across the 27-member bloc, according to a study published by the European Commission in 2017.

Spain committed itself in the Fourth Open Government Action Plan to transpose this in a transparent manner, stating that fin the first half of 2021 this year a public hearing and information process would be opened, noted the groups. This has never taken place.

Spain’s 2021 Annual Regulatory Plan, published this August, includes whistleblower protection as one of the priorities but the Justice Ministry has declined to release any details of the deliberations around national legislation.

The request was for “public consultations ... results or observations ... documentation and minutes of the Working Group in charge of the elaboration of the proposal of the regulations of transposition, as well as the draft, in its most up-to-date version.”

The Ministry's response was that it would “deny access to the required information because the text is still an internal draft, although it is foreseeable that it will soon be made public,” without saying when as as the deadline looms.

Spain’s position on access to its draft whisteblower protection law would appear to be in conflict with commitments it has provided elsewhere on freedom of information. In 2021, Spain announced a new law supposedly giving the public access to official documents and records that was aimed at going after chronic corruption and to set up a website with all public administrations’ and ministries’ financial details, and guaranteeing the public’s right to access information.

Spain is not the only country that will struggle to make the December deadline for transposition of the Whistleblower Directive. European companies are expected to look at compliance with the regulations only as they come into effect, which means workers will be left in limbo in the meantime. Industry journal Compliance Week has predicted a “late surge” of efforts from the business community.

Speaking on a panel at NAVEX Global’s 10th Annual Risk & Compliance Conference, Alexander Möller, partner at German law firm SKW Schwarz, said he expects a “wait-and-see” approach similar to the General Data Protection Regulation, where many companies didn't comply with until it was in force.

In Germany - where there is no general whistleblower legislation - Möller said many companies have been slow to prepare and that many EU countries likely won't pass the legislation by the deadline, with no indication how it would be enforced.

There is a “real danger,” said Möller, that employees and others will not be afforded the protections they should be guaranteed under EU law.