Informant Protection
At the beginning of the year the long-awaited Law 2/2023, of February 20, regulator of the protection of people who report on regulatory and anti-corruption violations, by which the DIRECTIVE (EU) 2019/1937 OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 23 October 2019 on the protection of persons who report infringements of Union law.
This new regulation includes numerous legal obligations for both the private and public sectors, such as the incorporation and implementation of the so-called internal information systems in each of the obligated subjects. The deadline for the implementation of the “famous” whistleblowing channels is set out in the second transitional provision relating to the maximum deadline for the establishment of internal information systems and adaptation of existing ones.
This provision establishes that administrations, organizations, companies and other entities required to have an internal information system They must implement it within a maximum period of three months from the entry into force of this law, so the maximum date for the implementation of these instruments ends June 13. As an exception to the period indicated above, in the case of private sector legal entities with 249 or fewer workers, as well as municipalities with less than ten thousand inhabitants, the period provided for in the previous paragraph will be extended until December 1, 2023.
Apart from these obligations for the public and private sector, there is one more, for the government of Spain. This obligation is the creation of the Independent Whistleblower Protection Authority, AAI This is stated in the third transitional provision of Law 2/2023, which establishes that until the Independent Authority for the Protection of Informants, AAI, has its own budget, its activity will be financed from the budget credits of the Ministry of Justice. .
It is important to indicate that the eleventh final provision establishes that within a period of one year from the entry into force of this law, that is, on March 13, 2024, the Council of Ministers will approve by royal decree, on a joint proposal of the Ministries of Justice and of Finance and Public Function, the Statute of the Independent Authority for the Protection of Informants, AAI, in which the appropriate provisions on organization, structure, operation, as well as all aspects that are necessary for the compliance with the functions assigned by this law.
Starting from this legal premise established in the regulations, a maximum period of three months is given to the obligated subjects to have an internal information system and a period of one year to the central executive to implement this new authority.
Certain doubts may arise from this series of statements; ¿Where will the headquarters of this new authority be located? Who will preside over it? How many workers will it have? What functions and powers will it acquire? What budget will it have?…. All these doubts arise as a result of the creation of this new authority. Something similar to what happened with the Spanish Agency for the Supervision of Artificial Intelligence, included in the General State Budgets of 2022 (https://portal.mineco.gob.es/es-es/comunicacion/Paginas/agencia-española-de-supervisión-de-inteligencia-artificial.aspx).
Firstly, regarding the location of the headquarters, a new mechanism will be used to choose it, instruments used not only with the new Spanish Agency for the Supervision of Artificial Intelligence but also with other organizations such as the Spanish Space Agency. . For the election of the new headquarters of the Independent Whistleblower Protection Authority, AAI will be carried out through the provisions established in Royal Decree 209/2022, of March 22, which establishes the procedure for determining the physical headquarters. of the entities belonging to the state institutional public sector and the Advisory Commission is created to determine the headquarters.
Once the government of Spain begins the procedure for determining the physical headquarters of the Independent Whistleblower Protection Authority, AAI (approved in the Council of Ministers), within a period of one month, the Advisory Commission, chaired by the Minister of Territorial Policy, will prepare a report that will be published in the BOE with the criteria to be taken into account to determine the location of its headquarters. .
From then on, the autonomous communities and the plenary bodies of local entities may present by electronic means the candidacy of one or more municipalities to host the physical headquarters of the Independent Authority for the Protection of Informants, AAI Once the deadline for submitting candidatures has ended, the Advisory Committee will prepare an opinion analyzing the possible venues and will send it to the Council of Ministers, which will adopt the agreement, which will be will publish in the BOE , within a maximum period of six months from the start of the procedure.
Regarding the Statute of the Independent Whistleblower Protection Authority, AAI, which must be approved by Royal Decree, there are several issues that have to be detailed. Term?. Maximum one year. ¿What issues should this Royal Decree cover?. Important issues such as: seat of authority, legal regime, functions and powers, annual report, possible organic structure of the Independent Whistleblower Protection Authority, AAI, as well as the procedure to follow for the election of the people who will direct it, personnel at the service of the Independent Whistleblower Protection Authority, AAI, the economic, budgetary, property and contracting regime and certain other issues.
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