The Greek Whistleblowing Protection Law Passed
The Greek Whistleblowing Protection Law (4990/2022) was recently published in the Government Gazette (A/210/11.11.2022) and is entitled as follows:“Protection of persons reporting violations of EU Law – Incorporation of Directive (EU) 2019/1937 of the European Parliament and of the Council of October 23, 2019 and other urgent regulations”. It has been pointed out that the Law in question transposes into Greek Legislation an EU Directive (2019/1937), thus providing a concrete legal framework regarding individuals who report breaches of EU Law.
WHAT IS WHISTLEBLOWING?
The term first appeared in 1999 in the book “Les Sombres Precurseurs” by Francis Chatoreineau and Didier Torny and is described as the citizen acting for the common good. In Greek, a whistleblower (Greek: μάρτυρας δημοσίου συμφέροντος) is a person who makes a substantial contribution with the information he provides to the authorities, but without being himself involved and without having any particular benefit from the disclosure and prosecution of cases. The cases may concern active or passive corruption involving public officials, active or passive corruption of an official, active or passive corruption of judicial officials, (etc).
PURPOSE AND PROTECTION OF WHISTLEBLOWERS
According to Article 1 of the EU Directive, ‘the purpose of this directive is to ensure an integrated framework for the protection of persons reporting breaches of European Union Law and to transpose Directive (EU) 2019/1937 of the European Parliament and of the Council of 23 October 2019 on the protection of persons reporting breaches of Union law (L 305)’.
A whistleblower discloses any form of information that is considered as illegal, unethical, or not in accordance with an organization’s regulations, so we understand that it can be anyone with well-founded allegations of any violations. The information may be related to a violation of a company’s policy, laws, or regulations or pose a threat to the public interest or national security, as well as denouncing fraud and corruption. Whistleblowers, although protected by various organizations, face criminal charges, dismissals, sanctions and gain social stigma.
Taking this into consideration, the Law in question prohibits any form of retaliation and retaliatory actions against the petitioner, whether it may come from the employer or from third parties. In addition to retaliation concerning general and special working conditions, any other harmful action against the petitioner in his professional and social environment related to the petition is also prohibited. Indicatively, dismissal, demotion, omission, and deprivation of promotion, removal of duties, change of place of work, reduction of salary, change of working hours are prohibited.
It is also criminally standardized to obstruct or attempt to obstruct a report, to carry out retaliation, and to disclose the identity of reporting persons subject to confidentiality. Fear or the threat of retaliation discourages potential public interest whistleblowers from reporting their suspicion. In this context, the importance of ensuring balanced and effective protection of public interest whistleblowers is increasingly recognized at the EU and international level. The establishment of an effective protection framework for persons reporting breaches of EU Law is necessary in order to encourage such persons to disclose breaches of public interest.
In light of the new provisions, these persons enjoy substantial guarantees, in such a way that they do not incur the risk of prosecution or retaliation and that their information is made confidential and protected. Strengthening the protection of public interest whistleblowers contributes to the prevention and deterrence of breaches of EU Law, and through them to the defence of the public interest.
OBJECTIVE OF LAW 4990/2022
Article 2 refers to the subject of this Law, which is the establishment of a system of internal and external reporting of violations of EU Law, the protection of persons reporting such violations, the organization of the procedure for the submission – receipt, and monitoring of reports and the penalties imposed in case of violation of this law.
The provisions of Law 4990/2022 apply to the protection of persons reporting or disclosing: (A) breaches of EU Law, as specifically defined in part I of the annex, in the areas of: (aa) public procurement, (ab) financial services, products and markets, as well as the prevention of money laundering and terrorist financing, (ac) product security and compliance, (ad) transport security, (ae) environmental protection, (af) radiation protection and nuclear safety, (ag) food and feed safety, as well as animal health and welfare, (ah) public health, (ai) consumer protection, (aj) privacy and personal data protection, and the security of network and Information Systems, (B) breaches affecting the financial interests of the Union referred to in Article 325 of the Treaty on the Functioning of the European Union (T.F.E.U) and specifically defined in the relevant union measures and C) violations related to the internal market, as referred to in par. 2 of Article 26 of T.F.E.U., including infringements of Union competition and state aid rules, as well as infringements of the internal market relating to acts infringing corporate tax rules or arrangements, the purpose of which is to secure a tax advantage which frustrates the object or purpose of applicable corporate tax law.
A penalty of imprisonment and a fine can be imposed on persons who: (a) prevent or attempt to prevent reporting in cases of violations falling within the scope of this protection, (b) retaliate or initiate malicious proceedings against the persons referred to in Article 6, (c) violate the obligation to maintain the confidentiality of the identity of the Reporting Persons in violation of Article 14. For the measurement of the penalty, the intensity of the retaliation and the gravity of the violation shall be taken into account. Responsibility of persons of par. 1 according to other provisions is not excluded. Persons who knowingly made false reports or false public disclosures shall be punished with a prison sentence of at least two (2) years and a fine. Responsibility of persons of par. 3 according to other provisions is not excluded. If any of the violations hereof were committed, for the benefit or on behalf of a legal entity, an administrative fine shall be imposed on it, the amount of which may not be less than ten thousand (10.000) Euros and greater than five hundred thousand (500.000) Euros. In order to measure the above sanction, in particular, of the gravity of the infringement and the degree of culpability shall be taken into account.
THE IMPLEMENTATION OF LAW 4990/2022
The period during which companies are required to comply with the provisions of Law 4990/2022 depends (a) on whether the company belongs to the public or private sector and (b) on the number of company’s employees. More specifically, private sector companies with fifty (50) to two hundred and forty-nine (249) employees must comply with the obligation to establish an internal reporting channel, according to Article 9, by December 17, 2023, and inform the competent supervisory body of par. 11 and 12 of Article 9 respectively. Private sector companies with more than two hundred and forty-nine (249) employees must comply with the obligation to establish an internal reporting channel, in accordance with Article 8, within six (6) months from the entry into force of this and inform the competent supervisory body of par. 11 and 12 of Article 9 respectively.
Public sector companies must comply with the obligation to establish an internal reporting channel, in accordance with Article 8, within six (6) months from the entry into force of the Law in question.