The establishment of the Independent Authority for the Protection of Whistleblowers (La Autoridad Independiente de Protección del Informante – AAI) subordinate to the Ministry of Justice (Ministerio de Justicia) is envisaged in Law of 20 February 2023 No. 2/2023 “On the Protection of Persons Reporting Violations and on the Fight against Corruption” (Ley 2/2023, de 20 de febrero, reguladora de la protección de las personas que informen sobre infracciones normativas y de lucha contra la corrupción).
The agency will be responsible, in particular, for:
1. Collecting, processing and storing the tips of natural persons made through the channel of the agency for receiving information on violations in public authorities and public sector organisations, as well as in private sector organisations if violations concern the territory of more than one region, and reports of the bodies that cannot investigate the violations they disclose;
2. Investigating the violations reported to the agency and, where necessary, submitting the materials it gathers to the prosecution authorities;
3. Adopting measures for protecting whistleblowers.
The AAI will protect whistleblowers by:
- providing them with advice also on the available protection measures and legal advice in case of prosecution and/or civil proceedings against them;
- not holding them liable for violating confidentiality requirements or failing to comply with the restrictions on obtaining the information disclosed;
- offering financial and psychological assistance;
- preventing retaliation against them etc.
4. Investigating violations associated with the failure to comply with legal requirements and imposing sanctions.
Under the Law, violations are classified as very serious, serious and insignificant.
The very serious and serious violations are:
- actions limiting the rights and guarantees provided for by the Law, for example, conclusion of agreements prohibiting the disclosure of any information and other actions impeding the submission or processing of tips;
- retaliation against whistleblowers due to their reporting;
- failure to preserve confidentiality of whistleblowers’ data, including any acts aimed at disclosing the personality of individuals reporting anonymously even if de-anonymisation did not actually take place;
- failure to preserve the confidentiality of information disclosed;
- deliberate reporting of false information;
- lack of reporting channels in an organisation (body).
Insignificant violations include:
- late submission of information on the functioning of reporting channels to the AAI;
- failure to comply with the obligation to cooperate in the framework of verification of disclosed information etc.
These violations are sanctioned as follows:
- in case of insignificant violations: from € 1,000 to € 10,000 for natural persons and up to € 100,000 for legal persons;
- in case of serious violations: from € 10,000 to € 30,000 for natural persons and from € 100,000 to € 600,000 for legal persons;
- in case of very serious violations: from € 30,000 to € 300,000 for natural persons and from € 600,000 to € 1,000,000 for legal persons. In addition to the fine, in case of very serious violations the AAI can also: make a public reprimand; prohibit the receipt of subsidies and/or other tax exemptions for a period of up to four years and/or the conclusion of public contracts for a period of up to three years; publish the information on liability in the Official State Gazette (Boletín Oficial del Estado);
5. Collecting, analysing and storing data on the functioning of reporting channels in bodies (organisations), and on appointment and removal of persons responsible for processing reports made by whistleblowers;
6. Raising awareness of all stakeholders on the existing mechanisms for disclosing information and protecting whistleblowers;
7. Enhancing cooperation with regional authorities for the protection of whistleblowers (autoridades autonómicas de protección del informante);
8. Submitting annual reports on its activities to the Ministry of Justice etc.
The authority will be headed by a chair. The list of candidates will be submitted to the attention of a dedicated commission of the Congress of Deputies (Congreso de los Diputados). Subsequently, the selected candidate, at the proposal of the Minister of Justice, will be approved by a royal decree. The chair will be nominated for a non-renewable five-year term.
The AAI will also have an Advisory Committee for the Protection of Whistleblowers that will consist of representatives of the Accounts Chamber, the Prosecutor General’s Office and others, while the personnel of the AAI will have to undergo preliminary training before they start performing their duties.
