In order to comply with the requirements of the European Commission and not to lose the second tranche of money from the PNRR worth three billion euros, on Tuesday the senators amended the clause of the Law on whistleblowers, removing one word from the standard form.

On Monday, the leaders of the ruling coalition submitted a bill to amend the Law on Whistleblowers, which was passed last December. In the new form, only one word – “significant” – has been removed from the phrase “significant signs of violation of legislation”. It is a provision contested by several NGOs, who have warned that it limits the ability to consider reports.

• “With the exception of the provisions of paragraphs (1), a report that does not contain the name, surname, contact information or signature of the whistleblower in the public interest is considered and resolved to the extent that it contains signs of a violation of the law,” is the new form adopted on Tuesday.

“He continues to put his fist in the mouths of integrity whistleblowers”

The amendment to the law on whistleblowers, necessary after a request from the European Commission to unblock payment request number 2 from the National Recovery and Resilience Plan, was adopted in the plenary session of the Senate with 80 votes in favor, none against and 13 abstentions, writes News.ro. The Senate is the first chamber to be notified, so the bill goes to the Chamber of Deputies for a final vote.

USR Senator Olena Spataru said in plenary that this bill is a joke and that the current coalition has jeopardized access to European funds from the PNRR.

• “This project will be voted on in the UDR, but it touches a little on the problems that we raised with this law.
• In the future, this law puts a fist in the mouth of integrity whistleblowers, and you continue to jeopardize the development of Romania by blocking the PNRR,” the USR senator said.

Acting Senate President Alina Gorgiou asked him to finish his presentation, to which Spataru replied: “I’m finishing, you’re done!”.

“Hysterics will not save Romania”

Alina Gorgiu took to the podium, declaring that “hysteria will not save Romania.”

• “With all the love in the world, if we want to speak in a civilized tone about normal law, we can speak in a way that the world will understand.
• If we want to mark another nervous breakdown from the Senate microphone, we can put a tick under the applause of our fellow party members.
• The money is not lost, the money is at Romania’s disposal, but precisely because this is a very important topic and this directive had to be transposed, there was a constant dialogue with the European Commission.
• (…) This is the proposal of the Commission (amended by removing the word “fundamental”), which tells us that the money from the PNRR, with this amendment to the law, will be in Romania,” Gorgiu said.

Why did the EC challenge the law on whistleblowers?

The law on the protection of whistleblowers in the public interest was adopted last year, published in the Official Gazette on 19 December, under the conditions under which Romania, as a member state, had to transpose Directive (EU) 2019/1937 of the European Parliament into national law on 23 October 2019 on the protection of persons who report violations of Union legislation.

The transposition of the directive is an important milestone for Romania in the National Recovery and Resilience Plan, failure to do so could result in the loss of a €3 billion tranche. The European Commission, however, demanded changes to the law.

• “As part of the assessment carried out regarding the second payment request, the European Commission sent its objections to the national authorities related to Art. 6 para. (2) from Law No. 361/2022 as follows:
• “With the exception of the provisions of paragraphs (1), a message that does not contain the name, surname, contact information or signature of the whistleblower in the public interest is considered and resolved to the extent that it contains significant signs of a violation of the law.”
• Thus, according to the Commission, the phrase “main evidence” in the content of the above-mentioned article may lead to subjective consideration of anonymous reports. In addition, this provision, in the Commission’s view, will not provide potential whistleblowers with the appropriate level of legal certainty and may discourage reporting. Regarding the findings, the Commission’s assessment was that national law does not transpose the Directive properly and, as a result, Step 430 is not properly implemented.
• Therefore, to close the assessment on payment claim no. 2 regarding Milestone 430, the European Commission requested to amend the provisions of Art. 6 para. (2) from Law No. 361/2022, excluding from the content of anonymous reports the requirement regarding the “substantiality” of signs of violation of the law. It has been shown that such a change would create a similar legal regime for the analysis and resolution of anonymous reports to other reports appropriated by whistleblowers in the public interest.
• Also, the European Commission conditioned the closing of the evaluation on the transfer of the approved legislative amendments to Law No. 361/2022 by March 23, 2023,” the initiators of the project of amendments to the law note.

Justice Minister Catalin Predoiu recently sent a letter to the leadership of both houses of parliament informing them of the status of the change to the law on whistleblowers after the European Commission summoned Romania for not transposing a European directive, something provided for in step 430 contained in the PNRR:

• “In the opinion of the European Commission, the phrase ‘fundamental evidence’ may lead to subjective consideration of anonymous reports.
• In addition, this provision, in the opinion of the Commission, will not provide potential whistleblowers with an adequate level of legal certainty and may hinder anonymous reporting.”

The law returned to parliament by Yohannis under pressure from civil society

The original form of the whistleblower law was criticized by civil society, which complained that it prevented anonymous reporting, thereby exposing the whistleblower.

Controversial changes in the initial version of the law:

• the possibility of anonymous reporting has been eliminated, therefore the presumption of good faith of the whistleblower is excluded;
• whistleblowers had the right to publicly disclose information about violations of the law only after three months and only on condition of prior notification to the internal organization,
• whistleblower reports were to be forcibly destroyed after two years;
• very small administrative-territorial units, less than 10,000 inhabitants, could not unite to apply 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 exempt from establishing or maintaining internal reporting channels and procedures for internal reporting and follow-up
• reduced by two-thirds the fine for at least halving certain reprisals in connection with the same report.

Under pressure from civil society, President Klaus Iohannis returned the law to parliament for amendments.

In the request for re-examination, the president referred to the anonymous messages excluded from the law sent for public disclosure and believed that “it is necessary to review the legislative decision regarding the analysis of anonymous messages for the purpose of whether they contain sufficient information.” regarding violations of the law and the ratio of norms”.

How the law was changed

On December 13, the Chamber of Deputies adopted this regulatory act again, with changes.

Thus, the innovations of the whistleblower integrity law are:

• “A report that does not contain the name, surname, contact details or signature of the whistleblower in the public interest is considered and resolved to the extent that it contains substantial evidence of a violation of the law – the paragraph is now amended again, removing the word “substantial”
• If the court recognizes that repression in the public interest has been applied against the same whistleblower at least twice in connection with the same report or public disclosure, it may, depending on the circumstances, adopt any of the measures provided for in paragraph ( 5), as well as the application of a civil fine of up to 40,000 lei.
• The law also applies to persons whose employment relationship has not yet begun and who report through internal or external reporting channels or publicly disclose information about violations of the law obtained during the hiring process or other pre-contractual negotiations or in the event that their employment or service relationship has ended.
• this law also applies to persons who anonymously report or publish information about violations of the law.”

The draft law regulates the general framework for the protection of persons who report violations of the law that have taken place or may take place in authorities, state institutions, other legal entities under public law, as well as in legal entities under private law, with the aim of transposing into national legislation the Directive (EU ) 2019/1937 of the European Parliament and of the Council of October 23, 2019 on the protection of persons reporting violations of Union legislation.