By Dr. Raluca Oprișiu, LL.M. Eur. Integration, Avocat (Attorney at Law RO)

Following the whistleblower directive[1] (to be implemented by 17.12.2021 by all member states), companies with more than 50 employees need to elaborate protection measures for whistleblowers, i.e. anonymous persons who report illegal activities. Romania is now discussing the implementation law in an active debate with NGOs and other stakeholders. There is a real concern to create a clear legislative framework so as to gain investors´ trust.

According to the last draft, the Romanian proposal goes beyond the EU provisions and leaves some open practical topics, which have to be amended in due time. Nevertheless, some important matters are certain and can already be used by companies when starting to adapt their compliance system. Such system needs to foresee either a modern online reporting system or hotlines or IT tools operated by themselves or with the help of external advisers.

Anonymous Reports

Suprisingly, the Romanian draft law provides for anonymous reports to be disregarded. In practice, this may lead to a situation where potential whistleblowers are afraid to disclose their identity, and illegal actions remain unsanctioned.

Matter of Disclosure

While the whistleblowing directive only mentions sensitive public and private sectors that should be covered by whistleblowers’ protection, the Romanian implementation law extends this list, establishing a general protection for reports on any breaches of law, ethics and profession-related regulations (norme deontologice). The fear is that such a general rule may be misinterpreted, but practice will show possible solutions.

Internal Disclosures Have Priority

Based on the new legal provisions, both companies and member states have to establish reporting systems, but internal channels should be used with priority. The justification for such EU-recommendation is that internal systems at company level may solve reports quicker and without involving external (autonomous and independent) channels. On the other hand, voices from the practice speak for one single reporting channel managed by the National Integrity Agency (Agentia Nationala de Integritate – ”ANI“) so as to have a clear overview of the entire field.

Another idea brought up by experts from other countries into the Romanian debate was for companies to consider offering financial incentives to the whistleblowers, e.g. a percentage of the amounts collected following the report.

Additional Protection Measures, Non-discrimination

The general protection refers to measures against retaliation. Such measures include not only dismissal (which can be abusively disguised as job cuts), but also downgrading/demotion and discrimination applied to both the reporter and his supporters (family members, advisers, etc.).

Conclusion

Romania is close to establishing the legal framework obliging companies to integrate accessible reporting channels into their compliance policy. Finetuning is expected to follow, but companies can already start the preparations based on the rough lines published so far.

Please find more detailed information at: https://stalfort.ro/wp-content/uploads/2021/07/20210520_RO_Measures_for_the_protection_of_whistleblowers_in_Romania_will_soon_be_needed.pdf

[1] Directive (EU) 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.