Sep72023

Law 2/2023 regulating the protection of persons who report on regulatory and anti-corruption infringements under review: is it really at the forefront in Europe?

Introduction

On 20 February 2023, Law 2/2023 on the protection of persons reporting on regulatory and anti-corruption infringements was adopted, transposing Directive 2019/1937 on the protection of persons reporting breaches of Union law. Its purpose is to fill certain gaps in the legal framework for the security and protection of whistleblowers within the organizations where they provide their services and, as a consequence, to detect irregularities or illegalities in order to inform the authorities. Undoubtedly, the aforementioned law aims to facilitate transparency and combat corruption and the commission of other crimes within public entities or private corporations.

In order to achieve these objectives, Law 2/2023 takes advantage of the successful proactive measures of clear European influence that have been applied for the management of European funds in contexts such as the detection of fraud, corruption, conflicts of interest and double financing that have been developed so far (for example,  State Order HFP/1030/2021, which configures the management system of the Recovery, Transformation and Resilience Plan).

This is a novelty in Spain whose regulatory anchoring occurred with some delay although it currently represents the culmination of the process of transposition of Directive 2019/1937 into the Spanish legal system. Thus, as is evident in the preamble of the Law, it is added to the previous and more advanced experiences of some autonomies such as the Valencian Community that, by virtue of Law 11/2016, of November 28, created the Agency for the Prevention and Fight against Fraud and Corruption (Valencian Anti-Fraud Agency) which has been at the forefront in Spain in terms of the empowerment of the “information culture”.

To this end, the new state law is based on the premise that citizen collaboration is an essential factor for the effectiveness of the Law and that it is manifested not only with the subjection of all public powers and citizens to the Spanish Constitution and the rest of the legal system (article 9.1 of the Spanish Constitution),  but also with the collective commitment to the proper functioning of public and private institutions. This, without prejudice to the fact that it is projected on the duty of workers – and that could be extended, even, to elected public officials – to inform or alert about certain categories of irregularities of which they have knowledge in the context of their employment or professional relationship in order to prevent  and detect fraudulent and corrupt practices that,  Indeed, they threaten the public interest.

Generic obligations of Law 2/2023

As for Title II of this law (arts. 4 et seq.), it establishes the obligation for both companies and the public sector to have a complete internal information system composed of both the usual communication channel – commonly known as an ethical or complaints channel – and the process of management and monitoring of the information received. Precisely, it is more than evident that this system should be used preferentially to channel information although the informant can choose the internal or external channel, depending on the circumstances and risks of retaliation that he can consider.

Likewise, the entities must designate a person responsible for the internal information system (articles 5 and 8) who may be a person or a collegiate body and whose appointment, dismissal or dismissal will depend on the administrative or governing body of the entity. The management of the system may be internal or external to the entity (art. 12). In the event that management is outsourced, the guarantees provided for by law must be respected and the responsibility, in any case, will also fall on the person responsible for the system that has been appointed in the entity (articles 6 and 8). The communication channel that is part of the system must allow communications to be made in writing or verbally, or both, by electronic means or even in person (arts. 5 and 7). Communications through the channel will be confidential (art. 5.2º b) and must also allow anonymous communications to be presented or processed subsequently (art. 7.3º). Likewise, the information management procedure will respond to the minimum content and principles provided for in article 9 of this law.

In relation to Title III (arts. 16 et seq.), the external information channel is regulated, so that the informant may choose to inform the Independent Authority for the Protection of the Informant (hereinafter, AIPI) or the competent authorities or autonomous bodies, either directly or prior communication through the corresponding internal channel. Moreover, as a last resort, the reporting person may make a public disclosure of the infringement of which he has become aware, after having made the communication first through internal and external channels, or directly, through external channels – provided that appropriate measures have not been taken in this regard within the prescribed period and understands that there is a situation of imminent danger to the public interest,  among others–.

For its part, Law 2/2023 also establishes a precise sanctioning regime, which contemplates high amounts of fines both for the infringing entity, public or private, and for the responsible internal bodies. Thus, according to the provisions of article 65, they start from 1,001 to 300,000 euros in the case of natural persons and between 100,000 and one million euros if those who commit an infringement are legal persons, intervals that vary depending on their severity. In any case, in the case of very serious cases, provision is also made for (a) public reprimand; (b) a ban on obtaining subsidies or other tax benefits for a maximum period of four years and; (c) a ban on contracting with the public sector for a maximum period of three years. In short, although the sanctioning regime will encourage companies to adapt as soon as possible to the novelties provided for in this law, it leaves them in a complicated situation, since they must comply with their legal obligations in record time under penalty of high penalties that may compromise their viability.

However, under Article 61 of that Law, the national sanctioning body is vested in AIPI, which has not yet been established. Although, in the case of the autonomous communities, Catalonia has been the first autonomous community to confer such competence to its Anti-Fraud Office. It is thus the first independent authority to assume full powers for the protection of reporting persons, both in terms of the provision of external channels and in the imminent use of the sanctioning power.

The material and personal scope of Law 2/2023: some structural deficits

The material  scope (Art. 2 of the Law) focuses on the protection of persons who, in a work or professional environment, identify both infringements of EU regulations and any serious or very serious criminal or administrative infringement of our legal system and report them through internal and external information channels.

However, what could happen to other common practices such as non-compliance with internal policies and ethical codes of organizations or other behaviors linked to abuse of power?

Certainly, such an absence could deprive the guarantees predefined by the European Directive of protection and could exclude from protection relevant and everyday conduct such as  wage dumping or employment discrimination. Some practices that, legislations of our environment do contemplate, as is the case of French legislation, by virtue of the application of the current Law no. 2022-401 (known as “Loi Waserman”).

As if that were not enough, it should be noted that this scope of protection does not exclude the application of the rules relating to criminal procedure, including investigative measures. A provision that departs from the French Law no. 2022-401 that grants immunity – including criminal and civil liability – to the reporting person and that could have a dangerous deterrent effect among potential informants.

With regard  to the personal sphere  (art. 3 of Law 2/2023), it has a manifestly more restrictive scope with respect to the material since, although it protects the reporting subjects regardless of the information channel used, it leaves to their fate the organizations that assist or carry out support or research activities together with the reporting person,  these include reporting persons protection associations or non-governmental organizations (NGOs), among others. Therefore, this Law has a more restrictive scope than the Valencian law that, in its article 14, considers a complainant to be “any natural or legal person who communicates facts that may give rise to the demand for legal responsibilities” or the French law, whose definition of “facilitators” also accommodates a wide range of natural and legal persons (including in both cases,  NGOs).

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For an exhaustive analysis of Law 2/2023 of February 20, regulating the protection of people who report on regulatory infractions and the fight against corruption, we refer to the following study: VIGURI CORDERO, “The challenges of the protection of whistleblowers in Spain after the approval of Law 2/2023: a right in the process of consolidation”,  Revista Española de la Transparencia, no. 17, 2023. Available in: https://doi.org/10.51915/ret.313

Jorge Viguri Cordero

Permanent Labor Professor of Constitutional Law. Universitat Jaume I

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Aug242023
Aula del Colegio Maristas de Algemesi

3,300 people receive training from the Valencian Anti-Fraud Agency during the first half of 2023

Valencia, 22 August 2023.- The investigation of fraud and corruption is undoubtedly one of the Agency’s best-known functions. However, there are others such as prevention and training functions in which the Agency has been developing an intense work.
The development of ethics and public integrity is for the Agency one of the fundamental tools in the fight against fraud and corruption in our society and hence the importance of training in all areas and levels.
The training activity developed by the Agency during the first half of 2023 has allowed more than 3,300 people to participate in one of the 55 training activities organized. This figure represents an increase of 72% compared to the same period in 2022 in which 33 training activities were organized. With regard to the number of participants, this has increased by 50% from 2,191 to 3,300 this year.
The 55 training actions have been developed: 6 in the province of Alicante (Alicante and Elx); 4 in the province of Castellón (Vinarós and Castellón) and 29 in the province of Valencia (Requena, Alfara del Patriarca, Alzira, Algemesí, Sagunt, Riba-roja de Túria, Quart de Poblet, Cullera, Ontinyent and València). Likewise, 16 activities have been developed in the online modality.
One of the main training activities that have been developed in this first semester of 2023 have been the docuforums that the Agency has been teaching for some years with the students of the Valencian universities. In this first semester, 10 docuforums have been organized at the University of Valencia; 2 at the Universitat Jaume I de Castelló and 1 at the Universitat d’Alicante.
After the good reception that the docuforum format has had among Valencian universities, the Agency extended this activity to secondary education institutes and thus, in this first semester of 2023 the staff of the Agency’s training area has visited 9 institutes to carry out this activity.
The training activities during the year 2023 have also had a longer duration by increasing the courses lasting between 15 and 20 hours that from the training area of the Agency has been taught for the staff of different public administrations such as the councils of Alicante, Valencia and Castellón; the public universities of the Valencian Community; the Valencian Institute of Public Administration (IVAP) or the National Institute of Public Administration (INAP).
3 training activities have also been organized with civil society entities and associations.
Whether you are a teacher (university, institute or college) or if you work in a public administration or are part of an association or entity and you are interested in this type of training, you can contact the training area of the Agency in this email: formacion@antifraucv.es

Aug42023
Fotos sede de la Agencia

The Valencian Anti-Fraud Agency receives an average of 49 complaints per month in the first half of 2023

Valencia, August 4, 2023.- During the first half of 2023, the Valencian Anti-Fraud Agency has received a total of 295 complaints, which represents an average of 49 complaints per month. Likewise, this represents an increase of 30% with respect to the complaints filed in the same period of the previous year when the number of complaints was 226.
The number of complaints filed with the Agency continues to increase, so in 2020 226 complaints were filed; In 2021, 359 complaints were reached and in 2022 there were 453. Therefore, in this first half of 2023, more complaints have already been filed with the Agency than in the whole of 2020.
With regard to the matters to which re-submitted complaints are subjected, those relating to human resources management are the most numerous, representing a total of 44 per cent (131 complaints). In second place, there are those that refer to public procurement that represent 11% of cases (33 complaints) and in third place urban planning with 9% of cases (28 complaints).
Of the 131 complaints filed, 97 of them (33 per cent) relate to personnel selection and provision procedures.
The channel most used by complainants again has been the Agency’s complaints mailbox, representing 88% of the cases, that is, 261 of the 295 complaints filed have done so in this way. Email, with 19 complaints (6%), has been the second most used channel.
With regard to the management of the files opened by the Agency until June 30, 244 files had been resolved and 31 final investigation resolutions have been published, which can be consulted on the Agency’s website at this link: https://www.antifraucv.es/resoluciones-de-investigacion-2023/
It should also be noted that during this first half of 2023 the Agency has received 5 new commissions for expert reports from different judicial bodies and prosecutors, while during this same period 6 expert reports have been completed. In total, the Agency has been commissioned to produce 29 expert reports in criminal proceedings, which demonstrates the close collaboration maintained with the judicial bodies.
As an example of this close collaboration, it should be noted that on June 19 the Agency signed an agreement with the Attorney General’s Office that aims to strengthen the common functions and purposes that exist between both institutions.