Date: 7th December 2022
The Greek Parliament has finally voted Law 4990/2022 (Government Gazette A’/210-11.11.2022) entitled “Protection of persons reporting breached of EU law – Implementation of Directive (EU) 2019/1937 of the European Parliament and of the Council of 23 October 2019 and other urgent regulations”.
Goals of the new legislation
The purpose of the law is to establish a system for internal and external reporting of breaches of EU law, the protection of persons reporting such breaches, the roadmap of the respective proceedings in order to submit, receive and follow-up the respective reports and the penalties applicable in the event of breaches of the new legislation already in force.
Consequently, the legislation aims at:
a/ detecting and preventing misconduct and breaches of laws and regulations;
b/ improving law enforcement by establishing effective, confidential and secure reporting channels to effectively protect whistleblowers from fear of retaliation.
The obligations of private legal entities in a nutshell:
Legal entities in the private sector with 50-249 employees must comply with the obligation to establish an internal reporting channel (appointment of an Officer Responsible for the Receipt and Monitoring of Reports – and establishment/creation of a respective platform) until 17/12/2023. Legal entities in the private sector with more than 249 employees must accordingly comply within six (6) months following the publication of the Law (i.e. until 11.05.2023). All legal entities in the private sector must further notify within a period of two (2) months of compliance the respective Labor Inspectorate respectively. Legal entities in the public sector are required to comply as well within six (6) months from the entry into force of the law (art. 25 of L. 4990/2022).
The provisions of the new legislation in force shall apply to the protection of persons who report breaches of Union law in the fields of public procurement, financial services, products and markets, and prevention of money laundering and terrorist financing, product safety and compliance, transport safety, protection of the environment, food and feed safety, animal health and welfare, public health, consumer protection and protection of privacy and personal data and security of network and information (art. 4 of L. 4990/2022).
The legislation’s personal scope of application includes persons having the status of worker, including civil-servants, self-employed persons or home workers, shareholders and persons belonging to the administrative, management or supervisory body of an undertaking, including non-executive members, as well as volunteers and paid or unpaid trainees and any persons working under the supervision and direction of contractors, subcontractors and suppliers. The law shall also apply to reporting persons where they report or publicly disclose information on breaches acquired in a work-based relationship which has since ended (art. 6 of L. 4990/2022).
Conditions for protection of reporting persons
Reporting persons shall qualify for protection provided that they had reasonable grounds to believe that the information or breaches reported were true at the time of reporting and that such information fell within the scope of the Law and that they followed the alternatives provided for by the Law in order to report so (art. 7 of L. 4990/2022).
Obligation to establish internal reporting channels
Whistleblowers should be able to submit reports either in writing via an online system, a mailbox or by post and/or orally via a telephone hotline or answering machine system. Not only are employees who report wrongdoing protected, but also job applicants, former employees, supporters of the whistleblower or journalists.
In essence, each institution designates a Reporting Receipt and Monitoring Officer, who is responsible for providing the appropriate information to enable the report to be submitted, receive the reports, acknowledge receipt of the reports within seven (7) working days and take the necessary steps for the competent bodies of the organization to take action on the report. Said Officers’ duties also include the designation of an impartial person or department competent for following up on the reports which may be the same person or department as the one that receives the reports and which will maintain communication with the reporting person and, where necessary, ask for further information from and provide feedback to that reporting person, diligent follow-ups, as well as a reasonable timeframe to provide feedback, not exceeding three months from the acknowledgment of receipt or, if no acknowledgment was sent to the reporting person, three months from the expiry of the seven-day period after the report was made and provision of clear and easily accessible information regarding the procedures for reporting externally to competent authorities (art. 10 of L. 4990/2022).
Reporting through external reporting channels
In addition to the internal channels, the National Transparency Authority (N.T.A.) assumes the role of the external reference channel, receiving and following up reports submitted directly to it.
The third and final tool available to whistleblowers is the right of public disclosure under strictly prescribed conditions. In particular, this right is granted in the following two cases: firstly, if the person initially reported externally or internally, but no appropriate action was taken in response to the report in the respective timeframes, and secondly, where the petitioner has reasonable grounds to believe that the breach may constitute an imminent or manifest danger to the public interest, such as where there is an emergency situation or a risk of irreversible damage (art. 13 of L. 4990/2022).
Duty of Confidentiality
The identity of the reporting person is not disclosed to anyone beyond the authorised staff members competent to receive or follow up on reports, without the explicit consent of that person. This shall also apply to any other information from which the identity of the reporting person may be directly or indirectly deduced. The identity of the reporting person and any other information referred above may be disclosed only where this is a necessary and proportionate obligation imposed by Union or national law in the context of investigations by national authorities or judicial proceedings, including with a view to safeguarding the rights of defense of the person concerned. In such a case, reporting persons shall be informed before their identity is disclosed, unless such information would jeopardise the related investigations or judicial proceedings. When informing the reporting persons, the competent authority shall send them an explanation in writing of the reasons for the disclosure of the confidential data concerned (art. 14 of L. 4990/2022).
Processing of personal data
Any processing of personal data carried out pursuant to the law, including the exchange or transmission of personal data by the competent authorities, shall be carried out in accordance with GDPR. Personal data which are manifestly not relevant for the handling of a specific report shall not be collected or, if accidentally collected, shall be deleted without undue delay.
Measures of support
From a practical point of view, the basic measures to support and protect whistleblowers from retaliation are: (i) to provide comprehensive and independent information and advice, which is easily accessible to the public and free of charge, on procedures and remedies available, on protection against retaliation, and on the rights of the person concerned; (ii) effective assistance from competent authorities before any relevant authority involved in their protection against retaliation and (iii) legal aid in further proceedings and legal counseling or other legal assistance, as well as psychological support, for reporting persons in the framework of legal proceedings (art. 19 of L. 4990/2022).
The new Law provides for criminal sanctions and monetary fines against natural or legal persons that:
a/ hinder or attempt to hinder reporting;
b/ retaliate against persons protected by the law;
c/ breach the duty of maintaining the confidentiality of the identity of reporting persons;
d/ persons who proceed in knowingly false reporting or public disclosures, abusing thus the provisions of the legislation (Art. 23 of L. 4990/2022).
For any questions and further information on the above, please feel free to reach out to Harry Karampelis at C.Karampelis@lambadarioslaw.gr.
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