After the inauguration by José María Campos, who was in charge of presenting the participants and the day, Luis Enrique Fernández and Adriana de Buerba took the floor, who debated the Whistleblowing Directive and the new obligations for Spanish companies.
Both agreed that this new standard is a change of great relevance, since companies will have to adapt their internal channels of complaint, as well as the processing of their investigations from the labor point of view and regulatory compliance.
Adriana de Buerba said that one of the most relevant aspects of this directive is that it requires maintaining the confidentiality of the identity of the complainant. This has to be known by the company, but it has a duty to preserve it. This fact can be an obstacle if this complaint is referred to the criminal field, since a constitutional right of a denounced person is to know the identity of his denouncer, so, according to de Buerba, the law transposing this European directive will have to contemplate this stage.
For his part, Luis Enrique Fernández Pallarés stressed that articles 9 and 11 of this European standard articulate how to file a complaint internally and externally, respectively. If the external complaint is chosen, the directive indicates the obligation to inform the complainant about the resolution of their complaint, something that does not happen if the internal complaint procedure is chosen, since, according to this rule, only the complainant must be informed of the completion of the process.
Next, Fernando Ruiz analyzed the main developments that this directive entails. Among these, Ruiz highlighted the protection of the complainant, as long as the information is truthful, is done in good faith and an illegality reported by Spanish regulations is reported. Likewise, only those complaints that are made through the established channels will be taken into account, except in exceptional cases such as the affectation of national security, imminent danger in some social area or that internal and external channels have failed. Likewise, Ruiz underlined the audiences to whom this directive is directed, since it not only protects the current employees of a company, but also the former workers, suppliers, customers or non-labor personnel of that company, which is a turn Important from Europe.
Another point highlighted by Ruiz is that the company cannot rely on the possible confidentiality clauses that its employees have signed and demand their non-compliance within the investigation of an internal complaint.
Finally, it has revealed that the directive contemplates the protection of the company against false complaints since they can carry penalties for those who make them.
They closed the day Luis Enrique Fernández Pallares and Adriana de Buerba, who talked about how to carry out an investigation after receiving a complaint through the complaint channels in the company.
Fernández Pallarés pointed out the need to have a procedure to handle complaints that the company may receive from an employee. It should be established which body should carry out the investigation, which may be internal or external, and which may internally channel the corresponding department and that is affected by that complaint. The recommendation of the lawyer is to simplify this process as much as possible to have a procedure that serves all possible cases.
Finally, de Buerba highlighted the fact that companies are not exempt from criminal responsibility for the facts that are being the subject of the complaint and that European regulations do not include penalties for their non-compliance, but it will be Spanish law who will have to establish these amounts He also noted that this rule does not provide for the criminal protection of the complainant if he had committed the crime reported. According to de Buerba, in the criminal field, the collaboration is mitigating, but not exempt, except in the specific cases in which the law specifies it, so the transposition of these regulations should regulate this aspect.