New law on the protection of whistleblowers

On 19th of December 2022, Law. No. 361/2022 on the protection of whistleblowers in the public interest (“Whistleblowing Law”), implementing the provisions of the EU Directive on Whistleblowing in Romania, has been published. 

We are briefly summarizing the most important aspects of the Law 361/2022 below.

As per Law 361/2022, public authorities and institutions, as well legal private entities (including subsidiaries of the parent company), with at least 50 employees, have the obligation to identify or establish internal reporting channels, to set up internal reporting procedures and to carry out subsequent actions. By contrast with the Directive, the material scope of the Romanian law is not limited to specific breaches of the law, but provides a general scope of application for any type of breach of the national or EU law.

For companies employing between 50 and 249 employees, the obligation to implement proper reporting channels will be effective as of 17 December 2023. However, companies with more than 249 employees must comply with the new legislative provisions starting from the date of entry into force of the Law (22nd of December 2022), but won’t be subjected to audit procedures until the specialized division within the National Integrity Agency is established. The specialized division is established within 45 days from the coming into effect of the present law.

Private legal entities with 50 to 249 employees are allowed to use and/or share common resources in terms of receiving reports on breaches of the law and subsequent actions. This provision is without prejudice to obligations on confidentiality, informing the whistle-blower and solving the reporting.

It is mandatory for employers subjected by Law 361/2022 to appoint an individual/department/third party service provider, as the case may be, with attributions in the registration, analysis, subsequent actions and resolution of reports. The person/entity should act impartially and have a certain degree of autonomy in the performance of the relevant attributions.

The reporting shall be made in writing, on paper or in electronic form, phone-communication or other voice messaging systems, or by in person meetings, upon request of the whistleblower. This shall be decided by the company when implementing the communication channels. All the reports must be recorded in an electronic register of the employer, mentioning the date of the report, the name and contact details of the reporting person, the object of the report and the settlement method. 

The competent authority to supervise and ensure the implementation of the law (the National Integrity Agency) provides guidance and advice, upon request, to the employers and reviews the internal procedures, if the case.

In view of the short deadline imposed by the law for compliance with the requirements, it is recommended for companies to review/implement their whistleblowing procedures and take the necessary steps in order to comply with the new legal provisions. Assessment of the internal procedures would be a good starting point and in case of any audits from the authorities, would be deemed as a sign of good faith of the company.