Whistleblowing legal framework changes in Portugal

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The Portuguese Government presented a bill several months ago for the transposition of Directive (EU) 2019/1937 of the European Parliament and the Council (“Directive”) on the protection of whistleblowers.

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 (the “Directive”) was published on 26 November 2019.

Whistleblowers are individuals who become aware of legal breaches or other situations threatening or harmful to the public interest in a professional setting (public or private sector).

The Directive provides the minimum standards to ensure the adequate protection of whistleblowers by creating internal reporting channels for whistleblowing and prohibiting any form of retaliation against whistleblowers. The Directive has been in force since 17 December 2019 and must be transposed by 17 December 2021.

The Directive already expressly required Member States to adopt measures to protect the whistleblowers by prohibiting all forms of retaliation, including suspension, lay-off, or termination, or other forms retaliatory measures such as demotions, change of place of work or working hours, intimidation, to name a few.

According to the Directive, companies must implement whistleblowing channels if they have more than 250 employees (by December 2021) and more than 50 employees by December 2023.

The proposed new law will apply to individuals reporting or publicly disclosing infringements in the following domains:

  1. Public contracting;
  2. Financial services, products and markets, and prevention of money laundering and terrorist financing;
  3. Product safety and compliance;
  4. Transport safety;
  5. Protection of the environment;
  6. Radiation protection and nuclear safety;
  7. Food and feed safety, animal health and welfare;
  8. Public health;
  9. Consumer protection;
  10. Protection of privacy and personal data and security of network and information systems;
  11. Breaches of the EU’s financial interests;
  12. Breaches of the European internal market, including violations of EU competition law, state aid rules, and breaches of corporate income tax (other requirements apply).

The beneficiaries of the protection include identified whistleblowers, individuals assisting in the complainant/whistleblowing procedure, any third parties connected to the complainant, namely work colleagues or family members, and corporations or entities owned or controlled by the whistleblower.

Complaints must be submitted to internal reporting and external reporting channels.

Public disclosure can only occur if there are reasons to believe that an infringement constitutes an imminent or manifest danger to the public interest, being unknown to the authorities, or where the risk of retaliation exists. Furthermore, public disclosure is allowed if an internal or external complaint is filed without adequate consequences.

Protective measures include a prohibition of retaliation, support measures, and administrative and jurisdictional protection.

Breach of law will trigger penalties ranging from € 1.000 to € 50.000.


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