The Anti-Fraud Office of Catalonia is a member of the Network of European Integrity and Whistleblowing Authorities (NEIWA).
NEIWA members make a series of recommendations to governments, administrations and other stakeholders involved in the creation of internal and external whistleblowing channels, in the framework of the transposition of the EU Directive on the protection of whistleblowers.
The implementation of NEIWA by its acronym or (Network of European Integrity and Whistleblowing Authorities) is based on the recommendations of the Paris declaration in 2019, the Rome Declaration of 2020, the Brussels Declaration in 2020 to finally adopt the Utrecht declarations in 2021 on cooperation and knowledge sharing, as well as the experiences in the field of “Whistleblowing” with emphasis on applying the Directive 2019/1937 on whistleblower protection.
Twenty-two representatives from each country have adhered to this agreement (NEIWA), with one observer (Montenegro), so that all persons reporting information concerning a legitimate public interest can exercise the right, which is enshrined in Article 11 of the EU Charter of Fundamental Rights and Article 10 of the European Convention on Human Rights.
NEIWA members follow up on any recommendations arising from this anti-fraud network, recommendations which are sent to all participating government administrations on the creation of whistleblowing channels as the transposition of the Whistleblower Directive, of which Antifrau is an active member, proceeds.
Since last July 14, 2021, Antifrau joins the provisions of the NEIWA declaration on the establishment of internal and external channels for anonymous whistleblowing; all this, coming from the working groups that led to the Utrecht declarations and in which Antifrau has participated.
Wilbert Tomesen, as chairman of the Dutch whistleblower protection authority and host of the meeting, welcomed the participants, including the Bulgarian Anti-Corruption Commission and the Corruption Prevention Agency of Montenegro. Cristel Mercade Piqueras also participated in the meeting as a representative of the European Union.
This commission is actively working on the drafting of a document interpreting certain precepts of the directive and frequently asked questions (FAQS).
The following conclusions were drawn from the meeting:
1. Establish internal channels.
1.1. Public and private sector legal entities should establish adequate internal procedures for receiving and following up on whistleblowing. Internal channels are aimed at disclosing wrongdoing in the workplace that otherwise remains hidden, often for fear of retaliation.
1.2. Entities required to implement internal whistleblowing channels shall foster a culture of internal whistleblowing and shall value internal whistleblowing as an act of loyalty and as an opportunity to learn about and address internal wrongdoing
2. Confidentiality and anonymous whistleblowing.
2.1. Whistleblowers may often lack confidence in the effectiveness of internal whistleblowing channels, which may deter them from reporting wrongdoing. Safeguarding the confidentiality of the whistleblower’s identity and the investigation is therefore a key condition for the whistleblowing system, ensuring that reporting does not entail any professional or personal risk for the whistleblower.
2.2. Internal whistleblowing channels should provide confidence and prevent unauthorized personnel from accessing their content. Entities that outsource their internal whistleblowing channels should check in advance that the third party ensures that internal reports are kept confidential and that only authorized persons can access their content.
2.3. The internal whistleblowing channel should include a proper investigation of the whistleblowing should be conducted in a rigorous manner.
3. Internal whistleblowing and follow-up procedures according to Directive 2019/1937.
3.1. Depending on the nature and size of the entities, internal channels could be managed by an impartial person or department responsible for receiving and following up on complaints and maintaining communication with the reporting person. In any case, their role should be to ensure independence, avoid conflicts of interest and receive the confidence of employees.
3.2. Clear and defined procedures for receiving and following up on a report are essential to build confidence in the effectiveness of the overall whistleblower protection system. A complaint submitted internally should be followed up appropriately within a reasonable timeframe to inform the whistleblower, in accordance with the minimum standard of the EU Directive. The complainant should be informed of the timeframe and procedures for two-way communication.
3.3. Persons considering reporting breaches should be able to make an informed decision on whether, how and when to report. It is essential for public and private sector legal entities, and those with an internal whistleblowing channel, to provide clear and easily accessible information on the procedures for reporting internally, as well as the possibility of reporting externally to the competent authorities.
3.4. The whistleblower should be able to choose the most appropriate reporting channel (internal or external) depending on the individual circumstances of the case. However, he/she could be encouraged to use internal reporting channels first and report to his/her own employer if these channels are available and can reasonably be expected to function.
4. On the prohibition of retaliation.
4.1. Internal whistleblowers should be protected against any form of retaliation, whether direct or indirect, that has been taken, encouraged or tolerated by their employer or client or recipient of services and by persons working for or acting on behalf of them, including co-workers and managers in the organization itself or in other organizations with which the whistleblower is in contact in the context of his or her work-related activities.
4.2. A clear legal prohibition of retaliation will have a significant deterrent effect and would be further strengthened by provisions for personal liability and sanctions for perpetrators of retaliation.
4.3. The granting of a protected status to a whistleblower, where national legislation provides for the granting of such a status, implies that the competent authorities should ensure that the whistleblower does not suffer any form of retaliation, direct or indirect. The competent authorities should have, where appropriate, dissuasive tools to prevent any form of retaliation, including the possibility of imposing a sanction on the organization that takes retaliatory measures.
4.4. Incluso si no se conoce la identidad de la persona denunciante (anónima), ni hay datos que permitan identificarla en ese momento, su identidad puede revelarse o deducirse en una etapa posterior. Por tanto, si la persona alertadora ha denunciado de acuerdo con la normativa, puede tener derecho a las medidas de protección que ofrece la Directiva, cuando la legislación nacional prevea el otorgamiento de estas medidas.
4.5. Las autoridades competentes y las entidades obligadas a establecer canales internos de denuncia deben velar por solucionar cualquier situación en la que la persona alertadora pueda haber sido objeto de represalias y evaluar cómo evitar futuras situaciones similares.
After the voting at the working table, in which the Hungarian commissioner for fundamental rights and his Croatian counterpart did not participate, it was concluded that the directive must be transposed by December 17, 2021, at the latest and without delay, that the protection of whistleblowers must be guaranteed, that the directive must have an immediate impact on the legislation of each EU member country, and that the rights of citizens under the Whistleblower Directive must be made known.