Like many other European countries, Romania is struggling to implement the EU Whistleblowing Directive and accommodate this game-changing perspective on issues such as corporate fraud and non-compliant business environments. In April 2021, Romania issued a first draft law, which was hotly debated and criticized for reasons including the imbalance between the obligations imposed on the private sector and the scope of the upcoming law.
We at Noerr Romania have been actively involved in arguing for, defending and protecting the interests of the private sector and were pleased to see some of our concerns addressed in the second draft law, issued by the Romanian legislator in December 2021. Considering the many changes introduced by the second draft law, we would like to present a series of articles on important issues with the goal of walking companies through the main focus points of the whistleblowing law, which is expected to enter into force any day.
For our opening theme, we would like to shed some light on probably one of the most significant changes introduced by the second draft law: general guidelines for protecting whistleblowers.
The second whistleblowing draft law provides for a new Art. 4 dedicated to establishing the general principles and guidelines that will govern the protection of whistleblowers. Soon after the publication of the first whistleblowing draft law, we continuously stressed the importance of underlying principles for the entire whistleblowing process, aimed at protecting companies from unnecessary costs and business impairment. We can therefore only welcome the initiative of the Romanian legislator to correct some of the flaws that might have had a significant impact on the private sector. In a nutshell, we anticipate the following:
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Whistleblowers will be obliged to submit accompanying proof
According to Art. 4 b) of the second whistleblowing draft law, those who file a whistleblowing report are now obliged to support their accusations with documents or information.
Regardless of the fact that this newly introduced provision could have been greatly improved by specifying the nature of the documents or information which must be submitted along with a whistleblowing report, we consider the principle of responsibility introduced by the second whistleblowing draft law to be a definite improvement.
As a consequence, companies are now entitled (at least theoretically) to ignore/disregard any whistleblowing reports that contain mere information or accusations that are not accompanied by substantiating documents or explanatory information. This could enable companies to reduce the costs associated with registering, analysing and managing incomplete/unjustified whistleblowing reports. This is a very positive development.
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Art. 4 e) regulates the principle of “balance”, according to which no one is entitled to use the provisions of the whistleblowing law to reduce the disciplinary or administrative penalty for his/her own (more) serious misconduct.
This newly introduced principle was necessary in order to protect the interests of private companies, which are unfortunately faced on occasion with “whistleblowing reports” that are, in fact, blackmail attempts. By this we mean (as also stressed in our previous communications) situations in which an employee is, for example, under investigation for misconduct, and attempts to avoid an imminent penalty or dismissal by pointing the finger at other potential wrongdoings in the company.
However noble the intention of the Romanian legislator, we cannot help but wonder why the principle of “balance” is applicable only when an employee is trying to reduce a penalty for a more serious misconduct. A critical analysis of the wording used by the legislator shows that it is still possible to hide behind the provisions of the whistleblowing law in order to avoid a penalty for a misconduct that is just as serious as the reported misconduct.
Moreover, breaking such a principle should theoretically result in appropriate penalties or repercussions; however, this is not the case. It will be the task of the National Integrity Agency (Agentia Nationala de Integritate – ANI), as the supervising authority, to determine what rights and obligations companies have when faced with such a whistleblowing case.
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Good faith
Another principle introduced by Art. 4 regulates the protection of whistleblowers who had reasonable grounds to believe that the information they reported was true at the moment of the report and in line with the scope of the whistleblowing law. Two main conclusions can be drawn from the “good faith principle”:
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Whistleblowers need reasonable grounds to believe that the information they report is true. As with the other principles detailed above, this one also aims at protecting companies from unreasonable or vexatious reports, which are extremely costly and time-consuming. Moreover, although not expressly stated, we believe that whistleblowers should have to prove that such reasonable grounds existed. As a consequence, whistleblowers are encouraged to take a more serious and responsible approach, while being obliged to first determine the exact scope of the law, and also analyse if the information to be reported is well founded or not;
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The whistleblowing law will not protect whistleblowers who lack solid grounds for their reports. We have continuously stated that such an amendment of the whistleblowing draft law is required, since the initial version of the draft law allowed for uncontrolled subjectivism on the part of the whistleblower, without filtering out unreasonable or vexatious reports in any way.
As with any draft law, and especially one that will bring about significant changes in business dealings, even the second whistleblowing draft law could have been improved. However, we are ultimately pleased to see that the concerns of the private sector are being addressed to a certain extent and that the Romanian legislator is also trying to balance the obligations that the upcoming whistleblowing law imposes on the private sector with the main goal of this law.
By Oana Piticas, Senior Associate, Noerr