The English-speaking world paved the way for individuals to
report non-compliance—in return for a
reward—in England in the Middle Ages. The action of qui tam, from the
latin “qui tam pro domino rege quam pro se ipso in hac parte sequitur,”
i.e., he who brings an action for the king as well as for himself, allowed
subjects to obtain part of the penalty or damages obtained from the offender.
The action spread to America in the days of Benjamin Franklin
and has endured since then, becoming an essential element in the fight against
fraud today.
Europe has been more reluctant to grant rewards to
whistleblowers, and eventually published Directive 2019/1937
relating to protection against reprisals for people who report violations of
community law, known as the Whistleblowing Directive, which establishes new
obligations for companies with over 50 employees.
As discussed in the post published last
April when the Whistleblowing Directive was enacted, the aim is to protect
European regulations (in the detection of irregularities affecting food safety,
public health, and the protection of consumers) and, therefore, it is
considered necessary to enable, encourage and facilitate internal complaints on
behalf of anyone who becomes aware of irregularities, whether at work or
elsewhere.
The directive establishes the obligation to implement internal
complaints procedures and channels, and procedures for handling complaints in
public and private entities that have over 50 employees.
The European directive enters into force on December 17 of this
year and has a transposition deadline of two years, until 2021. Despite this
deadline, considering that the effectiveness of compliance models requires the
existence of these channels and that the success of internal investigations
depends on the effectiveness of those channels, it is advisable to adapt
existing channels to European regulations and to schedule creation for new
ones.
The essential elements established by the directive for these
channels are as follows:
- Whistleblowing channels must allow for
complaints to be made verbally and in writing, as well as by telephone or other
voice messaging systems, and also in person if so requested by the complainant.
- Reporting channels must ensure the
confidentiality of the complainant.
- Receipt of the complaint must be
acknowledged within a maximum of seven days.
- A person or impartial service that is
competent to deal with complaints, which may be the same person or service that
receives complaints, must be designated. This instructor will maintain
communication with the complainant and, if necessary, will request additional
information and provide a response.
- All complaints must be handled
diligently, including anonymous ones, when these are acceptable under national
law.
- The complainant must receive a response
regarding the complaint’s handling in a maximum of three months, starting on
the date the complaint is acknowledged and, if no there is acknowledgment
receipt, within seven days from the date on which the complaint is filed.
- Channels must be negotiated with the
workers’ legal representatives when required by national regulations.
The
incentive established by the directive, unlike the qui tam action,is
essentially the protection of the complainant, beyond other incentives that may
be established based on the subject matter. Therefore, we will have to see how
effective the incentive of protection will prove in terms of changing the
actions of potential complainants.