WHISTLEBLOWING – HOW IT MAY LOOK LIKE IN BULGARIA?
Highlights of the Bulgarian bill for transposition of the Whistleblowing Directive
In 2019 the European Union adopted the so-called Whistleblowing Directive.The primary aim of the Directive is to ensure a minimum set of standards that would promote sufficient protection to the whistleblowers and encourage them to undertake actions and report wrongdoings. The Directive provided for a two-year period for its transposition into the local legislation of the Member States which expired on 17 December 2021.
Even half an year after this term the majority of the EU member states have not successfully brought into force laws, regulations and administrative provisions necessary to comply with the Directive. The Republic of Bulgaria is one of them. Fortunately, we already have a bill presented for public discussion.
The Bill of the Protection of Persons Reporting or Publicly Disclosing Misconduct Information Act (the “Bill”) may not be passed yet, but at least provide us with an initial look into the legislator’s idea about the protection of whistleblowers and the overall transposition of the Directive. Below you may find some highlights of the discussed provisions:
- Following the discretion given under the Directive, Bulgaria has opted for scope expansion by granting protection in case of reporting of breaches of the national legislation. This allows a more complex and methodical protection to the whistleblowers and presumes more effective reporting.
- After entering into force the Bill should apply to all private companies having 50 or more employees. There are also some businesses under this minimum that will be obliged to comply as well;
- The Bill defines the starting point for provision of protection – as of the submission of the report or the public disclosure;
- The last moment of the protection is also fixed – by the end of the investigation/the court hearing;
- The Bill explicitly prohibits any covenants that may lead to exclusion or limitation of the rights given to the whistleblowers. In the long run, this may call for revision of employment agreements and/or NDA agreements, should the latter include covenants restricting the employees’ rights or directly colliding with the provisions of the Bill;
- Following the Directive the Bill sets Internal and External Reporting Channels. The Internal Reporting Channel within the obligated entities is to be handled by a designated Report Administrator;
- The Bulgarian Bill has adopted the possibility of anonymous reporting;
- The Bill provides for specific rules and report analysis sequence regarding the administration, processing and resolution of the reports;
- The authority proposed for handling the external reporting and the control over the reporting is the Commission for Combating Corruption and Confiscation of Illegally Acquired Property;
- The Bill anticipates several possibilities for disclosure of the identity of the reporting person, including an explicitly given consent on his/her part;
- As expected the Bill also demands implementation of adequate measures for personal data protection (in compliance with the GDPR) including: introduction of special filing system; technical and organizational security measures; measures to guarantee the protection of the identity of the reporting person, the person being reported and anyone else involved, mandatory periodical audits and trainings of the involved personnel, etc.
- The Bill also provides for possibilities for claiming damages, depending on the party who has suffered them.
- The discussed Bill anticipates that it will enter into force one year after its publication in the Bulgarian State Gazette.
In summary: the Bill raises some practical questions and provides protection within specified limits, but most of all requires number of actions for compliance, all of which should be documented for transparency purposes. The good news is that if the Bill is adopted with these provisions, the business will have one year to find trusted partners and smoothly go through the next challenging compliance process.
This material represents a high-level overview of the recent developments concerning the protection of whistleblowers in the Republic of Bulgaria. This newsletter shall not be construed as legal or other professional advice for any specific case.
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