Whistleblowing channels: are public administrations prepared?

On September 23, the DraftLaw regulating the protection of persons who report on regulatory and anti-corruption infringements was published in the Official Gazette of the Congress of the Cortes Generales. The purpose of the text is to provide adequate protection against retaliation to natural persons who report any of the actions or omissions referred to in the law itself. As is known, Directive (EU) 2019/1937 of the European Parliament and of the Council is thus incorporated into Spanish law, which established common minimum standards to provide a high level of protection for persons reporting breaches of Union law.

The draft law, following the guidelines of the Directive, contains a series of very specific provisions in relation to various aspects, one of the most important being the obligation imposed on all entities and organizations, both public and private, to establish internally systems that allow those who maintain an employment or professional relationship with them, are able to report or alertthem to irregularities of which they have become aware in the context of that relationship, and all this with full guarantees that they will not be subject to retaliation for that reason [1].

Without prejudice to the considerable delay that we accumulate in the transposition (it should have been completed in December 2021), the truth is that everything indicates that in a few months the standard can be approved, after which the different bodies and entities must have these systems fully implemented and operational within a maximum period of three months [2]

In the field of the public sector, which is the one that concerns us here, the fulfillment of these forecasts requires to gain time in their planning, to be able to face them with a minimum of rigor and solvency. Let us recall, first of all, that the Directive imposed this requirement in general on all public sector entities, a provision that is incorporated in the draft law very broadly, so that practically no body or entity canexempt itself from this obligation [4]. That being so, I would dare to say that, except in the field of public commercial companies, which have already made significant progress in this area as a result of the extension to them of the regime of criminal liability of legal persons (article 31 quinquies of the Criminal Code after the reform operated by Organic Law 1/2015, of March 30), there are not many public sector entities that currently have these systems, so, to this date, the greatest challenge is those that have to start from scratch.

Be that as it may, we must start from the fact that, as the OECD has been demanding for years, for these tools to have real functionality they should be solidly established within a system of integrity of the organization, which in turn should rest on an ethical culture, something that should be addressed in a first stage in an essential way. That’s where we should start, therefore.

It would also be necessary to advance in planning the design of the essential elements of these systems and their fit within the organizational structures of each agency or entity. It is necessary to be very clear that the bill is not limited to requiring that there be a channel so that irregularities can be reported internally, but imposes that it be integrated into a system, with a person in charge appointed by the administrative or governing body of the entity, who must carry out their functions independently and autonomously with respect to the rest of the organizational bodies of the entity or body. This makes it essential to start thinking as soon as possible about the model to follow.

In many public administrations, some functions of this type are already resident in service inspections, while others have reporting channels within corruption offices or bodies located outside the administrative structure to provide them with greater autonomy and independence. Similarly, it is not possible to ignore that within the framework of the Anti-Fraud Plans referred to in Order HFP 1030/2021, which configures the management system of the Recovery, Transformation and Resilience Plan, it is recommended that decision-making or executing entities or that they participate in the execution of the PRTR measures, the creation of an Anti-Fraud Committee and an Internal Control Unit [4] , units which, if they exist, should not be left out of the integrity system or detached from the person responsible for the system referred to in the Directive and the draft law.

Admittedly, not all entities have the same characteristics, so it will also be necessary to make, at least, a first assessment of the situation of each one, its possibilities and its needsin order to consider sharing the System and resources with other entities (art. 8.9 of the Directive and 14 of the draft L ey) or, where appropriate, to resort to management through an external third party (Art. 15 of the draft L ey). In this area, the Autonomous Communities and, above all, the provincial councils, should also design possible actions to help its implementation, through subsidies or assistance, paying special attention to smaller municipalities.

Furthermore, it should be noted that, even in cases where institutions already have internal channels for alerting to irregularities, it would be necessary to adapt them to the requirements of the Directive and the transposition rule, as laid down in the first transitional provision of the draft law. Among others, special attention should be paid to some essential issues:

• In their design, it is necessary that these channels appear differentiated and independent of the internal information channels or systems of other entities or organizations. This issue is important to take into account for certain reporting channels that some public administrations have already established, and that, to date, serve other bodies or entities in their own field.


• As for their addressees, it must be guaranteed that at least the persons referred to in article 3 of the draft law can go to these channels, and that, through these channels, they can alert or report on the entire catalogue of irregularities provided for in the transposition norm provided that they have had knowledge in the labor or professional context.


• Internally, strict security protocols must be established in advance. The standard requires channels to be secure, so that these protocols must request access to unauthorized third parties and guarantee the confidentiality of the data of the person who is informed about the irregularities, of the persons concerned, or of any third party mentioned in the information provided, even in those cases in which the communication is sent to non-competent personnel.

• Technologically, channels must not only allow alerts about breaches to be presented anonymously, but must ensure that such anonymity is protected. As is known, anonymity is a step beyond confidentiality, so that, in these cases, not even the person in charge of receiving the alerts or information, nor the person responsible for their processing, monitoring and investigation, could access to know the identity of the complainant. This, of course, requires progress when implementing tools that allow these solutions, so that in digital environments the connection goes through encrypted tunnels that prevent tracking the source of the information.

• In parallel, these systems must be associated with a series of guarantees that provide protection to whistleblowers to avoid any type of retaliation. This requires that those guarantees must also be clearly defined and defined, in advance, within the scope of the entity or body itself.


These issues should not be left until the last moment, especially if we take into account that many of them, by their nature, require the participation of the representativesbefore the workers.

The clock that counts the deadlines to meet these requirements is closer to starting, and the rule itself intends that its non-compliance does not come free to anyone, contemplating sanctions of up to one million euros for entities that do not implement these systems, so it will be better not to get confused.

If the reform on the criminal liability of legal persons meant the generalization of compliance systems in the private sector and in public commercial companies, perhaps this rule can be a stimulus for the rest of the public sector entities to advance in an area traditionally so neglected for them, as is the integrity and fight against corruption. Perhaps also, this can help us to prevent corruption from continuing to appear as one of the most important problems for Spaniards or to recover the lost confidence in institutions, which we need well. We have plenty of reasons, and as the Marquis of Ensenada said to Fernando VI back in 1751 “Majesty, what is not started, does not end”.


Ignacio Saez Hidalgo
Lawyer and former director of the Legal Services of the Junta de Castilla y León


[1] Private sector legal entities with fewer than 50 employees would not be subject to this obligation.

[2] The project provides in its second transitional provision that the period available for the effective implementation of these channels is three months from their entry into force, with the only exception in the public sector of municipalities with less than 10,000 inhabitants, and in the private sector of legal entities with less than 249, for which it contemplates an extension of the term until December 1, 2023.

[3] The Directive allowed municipalities with less than 10 000 inhabitants or with less than 50 workers, or other entities with less than 50 workers, to be excluded, but the project approved by the Government has chosen not to operate an exception in this regard, without prejudice to the fact that they can share resources.

[4] Guidelines prepared by the Ministry of Finance and Public Function dated January 24, 2022

https://www.fondoseuropeos.hacienda.gob.es/sitios/dgpmrr/es-es/Documents/Orientaciones plan antifraude PRTR_SGFE_MHFP_enero 2022.pdf

The Valencian Anti-Fraud Agency and the Valencian Federation of Municipalities and Provinces celebrate the conference “Integrity strategies in local administrations” in Valencia


Valencia, October 24, 2022.- The AVAF and the FVMP have launched a cycle of conferences where integrity in public administration will focus the sessions organized by both institutions.

“Integrity strategies in local administrations” was the first of the conferences held in collaboration with the FVMP, at the MUVIM (Valencia). The staff at the service of local entities in the province of Valencia were the recipients of the session, inaugurated by Joan Llinares, director of the AVAF and Eugenio de Manuel Rozalen, general coordinator for the FVMP

“From anti-fraud plans to integrity plans” was the conference Víctor Almonacid, director of Prevention, Training and Documentation of the Valencian Anti-fraud Agency. In his speech, he explained the work carried out by the Valencian Anti-Fraud Agency in matters as diverse as fraud prevention, through the recommendations of the AVAF, as well as the training that is given, in terms of integrity and aimed, among others, at local and regional administration.

The internal and external complaint mailboxes and the protection of whistleblowers were the subject of the presentation given by Amparo Martí, head of the Agency’s Support and Expertise unit. The obligation to count these mailboxes makes it essential to know about the procedures for managing complaints that are filed in them. The complaints mailbox of the Valencian Anti-Fraud Agency is articulated as an external channel in the field of the Valencian Community for the management of complaints from all legal persons in its public sector.

Regarding the protection of corruption whistleblowers, the definition of them contemplated in Law 11/2016 creating the AVAF was shared, “a whistleblower, for the purposes of this law, is any natural or legal person who communicate facts that may give rise to the demand for legal responsibilities”

After the presentations by the director of Prevention, Training and Documentation and the head of the Support and Expertise Unit, a discussion session was opened among the public employees present, in which the legal assistance provided by the AVAF to whistleblowers and the reprisals they may suffer at their jobs.

From these lines, the appreciation of the AVAF for the interest shown in the training day to all attendees, keys to advancing in the culture of integrity in public organizations.

The Valencian Anti-Fraud Agency debates corruption in the classrooms of the Faculty of Social and Legal Sciences of the Miguel Hernández University of Elche


The Valencian Anti-Fraud Agency debates corruption in the classrooms of the Faculty of Social and Legal Sciences of the Miguel Hernández University of Elche

For the third consecutive academic year, the Valencian Anti-Fraud Agency (AVAF) is present in the Faculty of Social and Legal Sciences of the Miguel Hernández University of Elche with the Docufòrums-AVAF activity. On this occasion, to debate with the fourth-year students of the Degree in Journalism and the fifth-year students of the double Degree in Audiovisual Communication and Journalism.

The AVAF develops training activities with future professionals to promote a culture of prevention and fight against any conduct that encourages corruption.

On Friday, October 7, a new activity took place at the Faculty of Social and Legal Sciences of the Miguel Hernández University, with the attendance of 59 students and the participation of the Ethics and Professional Deontology and Political Communication professor, Carmen López Rico, and the Training technician, Marita Oliver.

After watching the documentary Corruption: Harmful Organism, the students star in the training experience through questions, focused on the origin and causes of corruption, its effect and costs, the perception of corruption in our society and with respect to other countries of our environment, what to do in cases of corruption.

In the debate, issues related to public ethics and integrity were also discussed, as well as prevention policies and civic education or the functions and work carried out by the Valencian Anti-Fraud Agency. Of singular importance was the value of the media as a factor that modulates the social perception of corruption and the ways to prevent and combat it.

The debate with the students allows collective reflection on ethical limits and micro-corruption, which every professional encounters throughout his life.

These activities are organized in collaboration with the Miguel Hernández University of Elx, to which we thank for their interest and willingness to help create a culture of public integrity and rejection of fraud and corruption.

If you are a university, secondary or high school teacher and you are interested in having the Docufòrum: “Corruption, harmful organism” training activity carried out in your subject, do not hesitate to contact the Training Service of the Valencian Anti-Fraud Agency through from formacio@antifraucv.es.