Relevant Law of 20 December 2021 No. 93/2021 Establishing the General Framework for the Protection of Whistleblowers (Lei n.º 93/2021 Estabelece o regime geral de proteção de denunciantes de infrações) is aimed at implementing the provisions of Directive 2019/1937 of the European Parliament and of the Council of 23 October 2019 on the protection of persons who report breaches of Union law.
The Law provides for the obligation to establish internal channels for reporting infringements in:
- the organisations of the public and private sectors with 50 or more employees, including the subsidiaries of foreign companies operating on the territory of Portugal;
- the organisations subject to the requirements of the EU law on financial services, products and markets, prevention of money laundering and terrorist financing, transport security and environmental protection regardless of the number of their employees;
- the public bodies at the national level, including the Presidency of the Portuguese Republic (Presidência da República), the Assembly of the Republic (Assembleia da República), ministries and areas of public administration (áreas governativas), the Constitutional Court (Tribunal Constitucional), the Superior Council of the Judiciary (Conselho Superior da Magistratura), Supreme Council of Administrative and Tax Courts (Conselho Superior dos Tribunais Administrativos e Fiscais), the Court of Auditors (Tribunal de Contas), the Prosecutor General’s Office (Procuradoria-Geral da República), designated representations of the President in the autonomous regions;
- the legislative assemblies and public administrations of the autonomous regions;
- the local government bodies with 50 or more employees and the population of the municipality exceeding 10,000 persons.
The internal channels should ensure secure reporting and tracing of further action based on the information disclosed to guarantee that the tips are verified in an exhaustive manner and in good faith, the information disclosed is stored, the confidentiality of the identity of the whistleblower and other persons mentioned in the tip is preserved, the anonymity of the whistleblower is preserved (in the case of an anonymous disclosure), and the information is not accessible to the persons unauthorised to work with the reports made by whistleblowers.
Additionally, the officers (divisions) responsible for receiving and processing reports, investigating the alleged violations, taking corrective action and informing the whistleblowers accordingly should be appointed by these bodies and organisations. These individuals should be independent and impartial, ensure the confidentiality, protection and integrity of data, prevent conflict-of-interest situations, and undergo special preliminary training; the relevant bodies and organisations, on their side, should undertake mandatory monitoring of the effectiveness of the reporting system three times per year and adopt, where appropriate, the measures for improving the existing mechanisms.
The Law also obliges certain public bodies and organisations to establish the channels for receiving external reports of violations if they fall under their competency. These mechanisms should be in place in:
- the Public Prosecution Service (Ministério Público) also with a view to disclosing information about violations committed by employees of the National Anti-Corruption Committee (Mecanismo Nacional Anticorrupção – MENAC);
- the Criminal Police Bodies (Órgãos de Polícia Criminal);
- the Bank of Portugal (Banco de Portugal);
- the independent administrative bodies (the bodies that exercise control and oversight functions in certain sectors or areas of activity – editor’s note);
- the public law institutions (the entities and foundations indirectly administered by the State or regional government bodies – editor’s note);
- the general inspections and similar bodies, as well as other central services directly administered by the State and enjoying administrative autonomy;
- the local government bodies;
- the public associations.
In the event that there is no body that could process a tip or the information it contains regards directly the competent authority, the whistleblower can contact MENAC.
The abovementioned competent authorities and organisations should submit an annual report on their activities with regard to processing the tips to the Assembly of the Republic. The report should provide the following information:
- the number of reports received, investigations launched based on these reports and their outcome;
- the character and type of violations disclosed by whistleblowers;
- other information that may be useful for improving the reporting mechanisms, processing of tips and protection of whistleblowers.
The status of whistleblower and the reporting procedure
According to the Law, the whistleblower is a natural person disclosing information about a violation being committed or whose commission can be reasonably expected, which he/she became aware of due to the fulfillment of his/her official (work) duties, as well as about the attempts to conceal such violation provided that the person acts in good faith and has serious grounds to believe that the information is reliable at the moment of its disclosure.
The following individuals can be whistleblowers:
- an employee of an organisation of the private, social or public sector, a servant of a public body;
- a supplier, contractor or subcontractor of a body (organisation), and any person acting under their control or direction;
- a shareholder or an individual participating in administrative, governing, oversight or control bodies of an organisation, including the non-executive members;
- a volunteer or an intern carrying out activities in a body (organisation) either for a fee or free of charge;
- a former employee of an organisation, a former servant of a public body;
- an candidate to a position or an individual at a different stage of pre-contractual relationship with a body (organisation).
The Law covers the disclosure of information regarding the following violations:
- the crimes or administrative offences in such areas as public procurement, financial services, products and markets, money laundering and terrorist financing, protection of confidentiality and personal data, cyber and information security, and others;
- the actions or failure to act against the financial interests of the European Union and damaging them;
- the actions or failure to act against the rules of the internal market, including the competition rules and provision of public assistance, and taxation;
- the violent crimes, terrorism, arms trafficking, passive corruption and embezzlement, money laundering and other crimes provided for by Law of 11 January 2002 No. 5/2002 Introducing the Measures for Combating Organised Crime and Financial and Economic Crimes (Lei n.º 5/2002 Estabelece medidas de combate à criminalidade organizada e económico-financeira).
According to the Law, the use of the internal channels in organisations is the preferable method for disclosing information. However, in certain cases the whistleblower can either contact the competent bodies (organisations) that have the mechanisms for receiving external reports of violations or disclose publicly the information in his/her possession, for instance, to the media.
For example, violations can be disclosed to the competent bodies (organisations) if:
- the body (organisation) where the whistleblower holds a position does not have internal reporting channels;
- only the servants (employees) of the body (organisation) can use the internal reporting channels, whereas the whistleblower is not an employee of the body (organisation);
- there are reasonable grounds to believe that the violation will not be disclosed/eliminated or there is a high risk of retaliation against the whistleblower without outside interference;
- the information about the processing of the tip filed through the internal channels is not provided to the whistleblower in due course;
- the violation is a crime or an administrative offence punished by a fine of over €50,000.
A whistleblower can resort to the public disclosure of information only in the event that:
- there are reasonable grounds to believe that the violation can pose a threat to public interest, cannot be effectively disclosed/eliminated by the competent body or there is a high risk of retaliation against the whistleblower even if external reporting channels are used;
- the disclosure of information through the internal and external channels did not result in a timely disclosure/elimination of the violation.
Protection of whistleblowers
The person who enjoys the status of whistleblower should be provided with protection in relation to the disclosure he/she has made.
Furthermore, the following individuals are entitled to protection:
- the individuals who have provided some sort of assistance to the whistleblower in disclosing the violation;
- the individuals associated with the whistleblower, for example, colleagues or family members who can suffer from reprisal;
- the organisations owned or controlled by the whistleblower, where he/she works or with which he/she has professional relationship.
The protection of whistleblowers implies:
- the protection of witnesses in the framework of criminal proceedings;
- the guarantees of access to courts and safeguarding of their rights and interests;
- the provision of necessary assistance by competent authorities with the aim to ensure their protection;
- the exemption of whistleblowers from liability for the failure to comply with certain requirements regarding the confidential character of such information or restrictions on getting such information due to its disclosure;
- the prohibition to retaliate against the whistleblower within two years from the date of the disclosure; retaliation in this case means actions or failure to act which cause directly or indirectly or can cause unreasonable material or non-material damage to the whistleblower.
According to the Law, retaliation means:
- a change to working conditions (the functions fulfilled, the number of working hours, the workplace, the amount of remuneration), a refusal to promote the employee or the violation of other labour rights of the employee;
- the suspension of the employment contract;
- a negative assessment of the performance of the employee or a negative letter of recommendation for further employment;
- a refusal to transfer the employee from a temporary position to a permanent one in the event that a fixed-term contract expires provided that the employee had legitimate expectations of being transferred, and a failure to extend the fixed-term contract;
- the inclusion in a “black list” based on a sectoral agreement, which can make it impossible for the employee to get employed in the sector in the future;
- the termination of a supply or services contract.
The imposition of disciplinary sanctions against the whistleblower within two years from the date of the disclosure will also be considered as an unlawful retaliation.
The listed measures that the employer can adopt will not be considered as retaliation only if the latter manages to prove that there is no link between the measure adopted and the fact of the disclosure made by the whistleblower.
The Law also contains the provisions regulating the enforcement of administrative liability measures for the failure to comply with the existing requirements, in particular:
- in the event of an impediment of reporting or processing of a tip, retaliation against the whistleblower in relation to the disclosure made, the failure to ensure the confidentiality of the whistleblower’s data, and in the event that the whistleblower reports deliberately false information the perpetrator is subject to a fine ranging from €1,000 to €25,000 for a natural person and from €10,000 to €250,000 for a legal person;
- in the event of an absence of reporting channels or their inconsistency with the requirements of the Law, a failure to train the officers responsible for processing reports and take corrective action, a lack of respect for the rights of the whistleblower related to the disclosure of information such as a refusal to hold an in-person meeting, a failure to inform the whistleblower about the receipt and processing of the report, and other violations the perpetrator is subject to a fine of between €500 and €12,500 for a natural person and €1,000 to €125,000 for a legal person.
The Law enters into force 180 days after its publication, i.e. in June 2022.