Although the first draft law transposing EU Directive 2019/1937 (Whistleblowing Directive) into national law has been launched in public debate by the Ministry of Justice in April 2021, the Whistleblowing Directive has not yet been implemented in Romania.
This first draft law was registered with the Chamber of Deputies to be debated and adopted as early as autumn 2021, but it was not debated during the parliamentary session since it had not received all the opinions of the committees (e.g., the Legal, Disciplinary, and Immunity committees).
However, as the bill was not automatically carried forward for the next year, on March 9, 2022, the government endorsed a second draft law which is expected to be registered with the Chamber of Deputies soon. Furthermore, it is also important to point out that the absence of an adopted transposition act, as a rule, should lead to the direct application of the directive.
The Recent Version of the Draft Law
From a first reading, it is notable that the government’s draft law no longer provides the option for whistleblowers who do not wish to disclose their names to be represented by their lawyers. Article 6(3) of the first draft law allowed whistleblowing reports to be filed by a whistleblower’s lawyer, without the latter being required to state the whistleblower’s name, provided that the legal representation agreement concluded in this regard explicitly contains an appropriate provision.
The first draft law differs from the government’s draft law in that it establishes a hierarchy of channels that a whistleblower can use. This national provision was an intensely discussed issue in the public debates launched by the Ministry of Justice, with many of the participants considering it unjustified. Based on this first draft, the reporting was mainly done through existing internal reporting channels and, exceptionally, the whistleblower would be able to use the external channels, only in particular situations.
Now, based on Article 5 of the government’s draft law, it seems that the whistleblower who reports a violation of the law may choose between the internal and external reporting channels.
Differences Between the Directive and the Draft Law
In terms of the deviations, the government’s draft law widens the scope of the directive regarding what breaches are subject to reporting. The directive indeed left the door open for member states to enhance protections under national law, yet the Romanian approach is extremely wide. Whistleblower protection is extended to any breach of law, any rules of conduct, or professional ethics. This is not exactly good news for companies, as it can lead to numerous reports on any subject, which will need to be registered and followed up on.
As it results from the directive, the regulations on mandatory registration and follow-up on anonymous reports are a decision for each member state, probably considering that the legal protections granted for anonymous reports can increase the chances of discovering compliance breaches early on. The Romanian approach is, once again, permissive about it.
The government’s draft law mentions anonymous whistleblowing reports in Article 2(2), according to which the law also applies to persons filing a report (internally or externally), including an anonymous report, or publicly disclosing information on breaches. In addition, Article 6(2) states that reports that do not include the whistleblower’s name, contact details, or signature are to be examined and resolved in the same manner as reports that do provide those details.
Therefore, the bad news for companies is that omitted information about a whistleblower’s name or contact details does not entitle a company to close the report – considering that future national legislation seems to allow anonymous whistleblower reports – as these should be registered and followed up on, similarly to any other reports.
The Ultimate Goal
In view of the above, we can conclude that, at first sight, this new version of the draft law does not appear favorable to companies. Yet, if we refer to the ultimate purpose of these legal provisions – to identify and remedy internal infringements early – we consider that there can be major benefits for companies.
As regards whether Romania has made any progress in the transposition procedure of the directive, there does not seem to be any substantial or significant advance, at least from a time perspective.
By Mihai Mares, Founding Partner, and Raluca-Andreea Mocanu, Associate, Mares & Mares