On Thursday, President Klaus Iohannis sent the whistleblower protection law, which transposes the EU directive, to the parliament for reconsideration.

In the request to the parliament, the President clarifies that “considering that the protection of whistleblowers is an important component of preventing corruption, we believe that the improper transfer of the specified directive involves the risk of violation of the procedure, as well as the activation of the mechanism of conditionality of European funds in compliance with the principles of the rule of law.”

Excerpts from the request of President Klaus Iohannis

• We understand that due to the changes made to Art. 9 para. (6) of the law, the resulting norm is contradictory, has the opposite hypothesis of Art. 8 para. (4) of the Directive, which provides for the obligation to establish internal reporting channels, regardless of the number of employees, in the case of private legal entities in the areas provided for in the Annex to the Directive, such as areas related to products and finance. markets, money laundering, etc.
• the rule is unclear, contradicts Art. 1 paragraph (5) of the Constitution and the will of the European legislator, which equated all private law legal entities with more than 50 employees to domains in Appendix no. 3. In practice, the hypothesis of the rule that needed to be transposed was changed.
• the phrase “persons included in the spheres (…)” was replaced by “persons with at least 50 employees included in the sphere (…)”, an aspect that contradicts the European Directive.
• Thus, according to the legislator, all legal entities under private law that have at least 50 employees will fall under the scope of the normative acts listed in Appendix No. 10. 3 and will have an obligation to establish or maintain internal reporting channels and procedures for internal reporting and follow-up.
• However, it is not the number of employees that determines the scale, but mainly the specific activity of the relevant entity. From this point of view, we believe that the norm provided for in Art. 9 para. (6) of the revised law deviates from the objective of the Directive.

Klaus Iohannis also says the law removes protections given to anonymous whistleblowers, even though they are protected by an EU directive that underpins the law passed by parliament. The president lists the main problems with the law, all of which are aimed at deterring whistleblowers.

The law on whistleblowers was adopted by the parliament on June 29 and contested by the UDR in the Constitutional Court. The KRS judges unanimously rejected the KRS objections.

The law on whistleblowers, which was amended by the legal committee of the Chamber of Deputies and quickly passed by the parliament, was strongly opposed by civil society and the head of the European Public Prosecutor’s Office, Laura Codruca Kovesi. She reported that she is considering an appeal to the European Commission to activate the mechanism for conditioning European funds on the rule of law in Romania.

Controversial changes to the law on whistleblowers

• the possibility of anonymous reporting has been eliminated, thus excluding the presumption of good faith of the whistleblower;
• whistleblowers have the right to publicly release information about a violation of the law only after three months and only on condition of prior internal notification;
• whistleblower reports must be destroyed after two years;
• very small administrative-territorial units, up to 10,000 inhabitants, cannot unite for the application of the law, contrary to the recommendations of the Directive;
• companies with less than 50 employees in the field of energy, capital market, investment funds, insurance, voluntary pension, etc. are exempted from establishing or maintaining internal reporting channels and internal reporting procedures and taking further action;
• reduced by two-thirds the fine for at least halving certain reprisals in connection with the same report.