Spain - Transposition of the EU Directive on Whistleblowing
The Blueprint for Free Speech is joined by more than 15 civil society organisations in publishing an open letter to the Ministry of Justice, requesting an open and participatory legislative process regarding the transposition of the EU directive on Whistleblowing.
‘Organisations in defence of whistleblowers request a participative, open and transparent process to transpose the European Directive 2019/1937 into Spanish law.
Spain is facing the responsibility and challenge of transposing the European Directive 2019/1937, of the European Parliament and Council, on the protection of persons who report infringements of Union law. Many whistleblowers are currently exposed to risks when revealing wrongdoing and may suffer retaliation, changes in their working conditions, persecution, defamation and even physical harm.
In the current legislature, various proposals from political parties and coalitions have been presented. Recently, the proposal made by Ciudadanos political party was voted down by Congress, on the basis that it was considered “insufficient” to protect whistleblowers. Other legislative alternatives have originated from the work and commitment of civil organizations.
On June 2, the Ministry of Justice formed a Working Group that depends on the Codification Commission, composed of members from various social sectors, without taking into consideration the opinion of the victims and civil society organisations.
Due to this, more than 15 civil society organisations agreed to publish an open letter to the Ministry of Justice, requesting an open and participatory legislative process, without waiting until December to see the final results. Although the Commission’s statutes do not establish a participation mechanism, the signatory organisations believe it is legitimate to request the establishment of a formal channel to present expert opinions that will be taken into consideration during the work process.
The initiative, promoted by Blueprint for Free Speech and FIBGAR, hopes to achieve an open participatory process to achieve an ambitious, horizontal, and responsible transposition of the European Directive 2019/1937.’
‘On June 17, the Spain’s Congress voted against an anti-corruption proposal which aimed to transpose the EU Whistleblower Directive into national law. That’s good news: earlier this week we explained why this was a weak proposal that would not fulfil the Directive’s requirements.
With 178 votes for NO and 159 YES, the majority in the Spanish Congress rejected the bill on the basis that the proposal was “opportunistic” and “insufficient”. Those who voted against included the governing political parties PSOE and Unidas Podemos, as well as Esquerra Republicana and PNV (Partido Nacionalista Vasco).
The parliamentary debate asserted how relevant whistleblower protection is to fight and prevent corruption, although the discussion also turned from the technical aspects proposed law into the political conflict that often take over in the Spanish Congress. After two hours’ debate, the proposal, supported by the two conservative parties Partido Popular and VOX, was finally blocked.
PSOE, the stronger party in the coalition in Government, announced that the Ministry of Justice would constitute a Working Group, populated by representatives from different relevant sectors for transposition, to work out a formal proposal. The Commission designed with the task has until December 2020 to complete their work.
We hope this process will lead to a better, more considered proposal for introducing whistleblower protection in Spain. After a period of relative silence, Spain has now started down the road to national transposition of the EU Directive to protect whistleblowers.’
“After many delays, whistleblower protection has made it on to the legislative agenda in Spain. Over the next two days, Spain’s Congress will debate and vote on a proposal made by the political party Ciudadanos. If the proposal is supported, this will be the real start of practical discussions about how to transpose the EU Whistleblower Directive 2019/1937 into national law.
Blueprint for Free Speech has conducted a legal analysis of the Ciudadanos’ proposal. Our analysis shows that the proposal as it stands does not adequately replicate the standards in the EU Directive, falling short in key issues, such as the creation of internal channels in the private and public sector and the protection of disclosures to the public.
Spain needs to transpose the EU Directive into Spanish national law by the end of 2021. When it does so, it should also take the opportunity to apply international standards on top of this. The proposed legislation is inadequate and does not meet the legal requirement on Spain to apply the EU Directive protecting whistleblowers. This is particularly so since there are better options already on the table for the Congress that meet these higher standards and fully apply the EU Directive.
Spain cannot look to the past while Europe looks forward.”
The first proposal of the Spanish legislature is the result of the collaboration of civil society with its representatives in Congress. A bill proposed by Xnet, and registered in the Spanish Congress with the support of 16 deputies.
“The proposal for legislation has been registered with the initial support of sixteen deputies of the Courts (according to the Xnet’ method), belonging to political groups Compromís, ERC, Más País, BNG.
It is an initiative of Xnet, which has been also responsible for writing the text, as a member and in coordination with the WIN network (Whistleblowing International Network) and Government Accountability Project (GAP), and has, among others, the support of Blueprint for Free Speech and Eva Joly, magistrate and former MEP leader fighting against corruption and for the defense of whistleblowers, Plataforma por la Honestidad, and whistleblowers like Luis Gonzalo Segura, the former lieutenant of the Spanish Army and whistleblower.
Its registration comes few days after the Directive enters into force in Europe and three weeks after the publication of two reports prepared by the Council of Europe’s Group of States against Corruption (GRECO), in which Spain was urged to achieve concrete results regarding the fight against corruption and regretting that a comprehensive and effective framework for the protection of whistleblowers is yet to be introduced in Spain. The Whistleblower Protection Directive, which was approved with a broad consensus of all groups in the European Parliament (EP) last April (591 votes in favor, 29 against, 33 abstentions), has been published on the past 26 of November.
As was the case in the EP, this proposal aims to obtain the widest possible consensus in the Spanish Congress. If approved, it would make Spain the first country in the union to transpose the directive, a fact that is especially relevant for a country where whistleblowers lack any protection and that suffer a high degree of corruption.”
The proposed law can be seen on in the Xnet website.