Start of main content

The anonymous denouncer in the recent Directive (EU) 2019/1937: Questions from work relations

| News | Employment Law and Social Security

Raúl López analyses the unknowns from the labour relations of the protection of people who report infringements of Union Law

The recent publication in the Official Journal of the European Union of Directive (EU) 2019/1937 - under the convoluted nickname "Protection of persons reporting infringements of Union law" - marks the culmination of a legislative process within the Union which has enjoyed an unusual degree of communion between European political players.

Apart from the customary media coverage with which this type of community initiatives are welcomed - with some voices being given to the sense of the norm as an element of reaction to reprehensible attitudes in Public Administrations, and the predominant presence of the public in the preliminary recitals could be used as a sign of this - the present one has aroused an estimable avalanche of comments of various kinds.

Overwhelmingly, those assessments choose to accentuate the wide margin of affectation established by the rule, which in principle covers undertakings with more than 50 employees, provided that the State legislature does not choose to modify - necessarily reduce - that staffing threshold for its application, on the basis of the appellant's 'Final Provision of More Favourable Treatment'.

Similarly, enacting bodies have been blamed for the existence of more pressing and urgent legislative measures. Be that as it may, the body of the text makes clear its nature - let the expression be allowed - as a normative skeleton that needs to be perfected by national action in order to gain life and meaning.

Although the Directives often result in minimum references (which is in line with the nature with which this supranational figure is described in Article 288.4 of the Treaty on the Functioning of the European Union), in the legislation before us the questions are of a special scope, which would have to generate a certain concern if we consider the implications that some of these unknown factors may have on the classification of extinctions promoted under these complaint channels.

Without wishing to delve deeper into what a monographic would reach, non-compliance with the guidelines of confidentiality and/or anonymity in the conformation of the channels would link national legislation with article 18 of the Spanish Constitution. Consequently, the evidence obtained through these channels, and declared illegal by the Courts in view of the violation of this precept, would be liable to compromise the nullity of the dismissal.

As a result of such uncertainty, the rule compels the complaint channels to guarantee the confidentiality of the complainant, leaving it to the whim of the subsequent national decision that such instruments make anonymity possible. This is in harmony with article 24 of LO 3/2018, of 5 December, on Data Protection (LOPD).

However, the protection of the whistle-blower extends to the person who makes the denunciation in an anonymous manner and is subsequently retaliated against for it, which exceeds the premises contained in the LOPD. In this way, those who opt for anonymity and not mere confidentiality are provided with a material guarantee -which is not formal- propitiating de facto that employees may resort to unofficial or alternative complaint channels.

This could lead to a significant decrease in the real impact of the Directive, which would be deactivated in its most substantial novelty - namely, the obligation to constitute a complaints channel from a formal perspective - by an excess of guarantee, in a certain way dispensable. This protection which has arisen as a result of a repressive action (therefore reactive and not preventive) is very similar to that already consolidated and known by all as a guarantee of indemnity.

In other words, if the national legal operator opted for the transposition of the Directive without making anonymity obligatory, such complainants would also enjoy protection against possible reprisals, but without the formal prerogatives contained in European legislation (it is certainly unimaginable to enforce rights of follow-up, as long as the periodic acknowledgement of receipt of the state of the complaint requires, after all, a known and identifiable addressee).

The dilemma is served and does not escape the understanding of some European instances that have opted for a half-positioning: anonymity assures the denouncer with evident solvency, favouring however the malicious denunciations and illegitimate purposes.

In short, the text limits itself to imposing the formal requirement that the constitution of the channel entails, and barely outlining some of its notes and characteristics, but leaving a wide margin for concretion to the States, which will be able to make use of their closest knowledge of the productive fabric to adapt the norm to the characteristics of the business subjects that make it up.

This leads to the assertion, at least in terms of temporariness, that the trans positive work of the state legislator will have to reach different normative bodies. At least, the LOPD, or the Law on Infractions and Sanctions in the Social Order (LISOS), would require adaptations through the introduction of a specific type, meaning only those of greater depth.

You can see the article in Lefebvre-El Derecho.

End of main content