Breaking the Silence: Whistleblowing Safeguards in Spain's Legal Landscape

In today's complex and interconnected world, whistleblowing is pivotal in safeguarding the public interest, promoting transparency, and combatting corruption.

Like many other countries, Spain has recognized the importance of protecting whistleblowers who risk their careers and sometimes their safety to expose wrongdoing.

However, the legal framework surrounding whistleblowing in Spain has undergone significant evolution in recent years, reflecting a growing recognition of its importance in upholding democratic values and accountability.

Historical Context

Historically, Spain lacked comprehensive legislation addressing whistleblowing, leaving potential whistleblowers vulnerable to retaliation and legal repercussions. The enactment of Law 10/2014 on Transparency and Access to Public Information in 2018 marked a significant step forward, introducing protections for whistleblowers in the public sector. However, this law had limitations, particularly in extending protections to the private sector.

The limitations of Law 10/2014 on Transparency and Access to Public Information primarily revolved around its scope and applicability. While the law was a significant step forward in introducing protections for whistleblowers in the public sector, it fell short of extending these protections to the private sector. This meant that employees in private companies, organizations, and businesses were not covered under its provisions.

Additionally, Law 10/2014 lacked comprehensive measures to ensure the confidentiality of whistleblowers and shield them from retaliation. Without clear guidelines on reporting channels and safeguards against reprisals, individuals in both the public and private sectors may have hesitated to come forward with valuable information regarding misconduct or violations.

The term ‘alerters’ has been adopted in some legal systems, such as the French one. In Directive 2019/1937 of the European Parliament and of the Council of 23 October 2019 on the protection of persons who report breaches of Union law, the term ‘whistleblowers’ is used, and in Law 2/2023: Strengthening Whistleblower Protection, the term ‘reporter’ has been chosen.

Furthermore, the law may have lacked specific provisions outlining the legal immunity of whistleblowers. Without explicit protections against civil, criminal, or administrative liability for disclosing information in good faith, potential whistleblowers may have been deterred from reporting wrongdoing due to fears of legal repercussions.

The Whistleblower Protection Law (Ley 5/2020)

Recognizing the need for broader safeguards, Spain passed the Whistleblower Protection Law (Ley 5/2020) in March 2020, a milestone in the country's legal landscape. This comprehensive legislation provides robust protections for whistleblowers across the public and private sectors, establishing clear procedures for reporting misconduct and shielding whistleblowers from retaliation.

The main provisions of the Law on Whistleblower Protection become:

1. Definition of Whistleblower: The law defines whistleblowers as individuals reporting or disclosing information about actual or potential unlawful acts, violations of regulations, or threats to public interest, provided they act in good faith.
2. Confidential Reporting Channels: Employers are required to establish internal channels for whistleblowers to report misconduct confidentially. These channels must guarantee confidentiality and protection from retaliation.
3. Prohibition of Retaliation: Employers are prohibited from retaliating against whistleblowers, including dismissal, demotion, or harassment. Retaliatory actions are null and void, and whistleblowers can seek legal recourse.
4. Legal Immunity: Whistleblowers are granted immunity from civil, criminal, or administrative liability for disclosing information in good faith, related to reported misconduct.
5. Penalties for Retaliation: Employers found guilty of retaliating against whistleblowers face significant penalties, including fines and sanctions.

Law 2/2023: Strengthening Whistleblower Protection

Existing whistleblower protection in Spain underwent a significant transformation with the approval of Law 2/2023, which regulates the protection of individuals reporting regulatory infringements and combating corruption. This law, enacted on February 21, 2023, more than a year after its due date, transposes Directive (EU) 2019/1937, commonly known as the Whistleblowing Directive, into Spanish law.

The aim of Law 2/2023 is to provide adequate protection against retaliation for individuals reporting violations or non-compliance by companies with European and Spanish regulations. It also seeks to foster a culture of information or communication like a mechanism to prevent and detect threats to the public interest. The law came into force on March 13, 2023, with a transitional period for implementation.

Companies with 250 or more employees were required to establish an internal reporting system no later than three months after the law entered into force, while those with 50 to 250 employees were given until December 1, 2023, to comply. Companies with fewer than 50 employees are exempt from implementing the law unless they fall within the scope of financial services.

The law protects whistleblowers acting in the public and private sectors who report violations in an employment or professional context. It extends protection to various individuals, including public employees, self-employed individuals, shareholders, and members of administrative or supervisory bodies of companies.

Entities required to implement an internal reporting system include private sector companies with 50 or more employees, entities in the private sector falling within the scope of specific EU regulations, and public sector entities.

The law classifies reporting systems into internal and external systems. Priority is given to internal systems, which companies must establish after consultation with legal representatives of employees. The law also establishes procedures for external reporting to the Independent Authority for the Protection of Whistleblowers or corresponding regional authorities.

Sanctions for non-compliance include fines ranging from €1,001 to €300,000 for individuals and from €100,000 to €1,000,000 for entities. Additionally, significant infringements may result in public reprimands, bans on obtaining subsidies or tax benefits, and bans on contracting with the public sector.

Before Law 2/2023, Spain lacked uniform regulation on whistleblower protection, relying instead on fragmented sectoral rules. Specific laws, such as Law 10/2010 on money laundering prevention and Article 31 bis of the Criminal Code, introduced some provisions aligned with the Whistleblowing Directive but were limited in scope. The introduction of Law 2/2023 marks a significant step forward in strengthening whistleblower protection in Spain and aligning its legal framework with European standards.

In conclusion, Spain's journey towards comprehensive whistleblower protection has seen significant milestones, culminating in the enactment of Law 2/2023. This legislation passed on February 21, 2023, not only strengthens existing frameworks but also aligns Spain with international standards, particularly the EU Whistleblowing Directive. By mandating internal reporting systems, prohibiting retaliation, and granting legal immunity to whistleblowers, Law 2/2023 establishes a robust framework for safeguarding individuals who expose wrongdoing.

Through these measures, Spain aims to foster a culture of transparency, integrity, and accountability across both public and private sectors. By providing whistleblowers with accessible channels to report misconduct and protecting them from reprisals, the law encourages the disclosure of vital information that can help combat corruption and safeguard the public interest.

As Spain continues to implement and enforce Law 2/2023, it sends a clear message: whistleblowers are crucial in promoting accountability and ensuring ethical conduct in society. By protecting those who speak out, Spain takes a significant step towards building a more just and transparent society, where individuals feel empowered to expose wrongdoing without fear of retaliation. Ultimately, Law 2/2023 reflects Spain's commitment to upholding democratic values and promoting the common good.