Valencia, January 29, 2021.- On January 27, 2021, the public consultation period opened by the Ministry of Justice of the Government of Spain ended so that any person, entity, association or public body could present allegations to the transposition of the European Directive 2019/1937 on the protection of persons who report infringements of Union law, known as the Whitleblowers Directive.
The first of the allegations refers to the extension of the protection of the complainant beyond the twelve areas listed in article 2.1 of the Directive. The AVAF indicates as an essential area to include that of public administrations, and especially, that of its dependent or linked public sector since it is where there are fewer controls. It also recommends expanding the scope of application to other areas and policies of national legislation, whenever there is a risk that non-compliance with these laws could cause serious harm to the public interest and the well-being of society.
With regard to the question of which public sector entities should be included in the personal scope of the Directive, the AVAF is committed to the broadest possible conception of the public sector.
Given the possibility that Spain receives anonymous complaints, the AVAF indicates that they should be allowed since it is the best tool to protect the person who denounces, informs or alerts of irregularities, according to his own experience through his Anonymous complaints mailbox .
Regarding the existence of internal complaint channels both in companies and in public administrations, the Agency proposes a reduction in the level required to make the introduction of internal mailboxes of 50 workers, with respect to companies, and 10,000 inhabitants for the municipalities. The characteristics of both the Spanish business fabric and its municipalities mean that most of them were exempt from this requirement.
Another of the allegations presented refers to the need to create a National Authority for the Fight against Corruption at the state and supplementary level in those autonomous communities that do not have such an institution. This National Authority would be independent from the public administrations and their public sector and would be attached to the Congress of Deputies.
The AVAF in its writing emphasizes that with the work that is being developed to transpose the European Directive, we are faced with a unique opportunity, and this should not be limited to a minimum adaptation to Spanish internal law, but should be reflected in a ambitious Law for the Prevention and Fight against Fraud and Corruption.
This future law would not only include the lines established by the Directive, but would endorse the provisions of the United Nations Convention against Corruption of 2003, which was ratified by Spain in 2006, and which have not yet been incorporated into our legal system.
Finally, the AVAF emphasizes that the transposition of the Directive must allow the harmonization of national law with the different autonomous regulations already approved and in force, as well as articulate the coordination between administrative, criminal or any other type of controls and investigations.
It is emphasized that the Valencian legislator anticipated this Directive through the approval of Law 11/2016, which created the Agency for the Prevention and Fight against Fraud and Corruption of the Valencian Community and that now the Spanish legislator has to regulate on what is already legislated by Les Corts Valencianes.
