Deficiencies of Whistleblower protection Law

In December 2021, the Ministry of Justice issued a proposal for the Whistleblower protection Law, which would transpose 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 (OJ L 305/17).

The proposer of the law points out that the draft regulation will contribute to the protection of the budget of the Republic of Slovenia (and the EU) and ensuring equal competitive conditions necessary for the proper functioning of the single market and the operation of companies in a fair competitive environment. The protection of whistleblowers should increase the general level of protection of workers in line with the objectives of the European Pillar of Social Rights (EPSR). Protection of whistleblowers is also recognized and pursued internationally, including by the United Nations Convention against Corruption. The basis for applicants is the constitutional right to freedom of expression, which the state must actively guarantee. Currently, Slovenian legislation only indirectly protects whistleblowers through criminal, misdemeanor (Minor Offences) and employment relationships law regulations. The fragmentation of the regulation in question can also be seen at EU level, which is reflected in the small number of reports and opportunities to prevent and detect breaches of Union law that can cause serious harm to the public interest.

The draft of Whistleblower protection Law introduces some key solutions, namely informing workers about procedures, protection and judicial protection and the availability of free advice, the obligation to define a clear application procedure to ensure confidentiality, the obligation to take serious action when reporting, protection for whistleblowers who have suffered retaliation.

At the beginning of January 2022, the public debate on the proposed law ended, where the public pointed out certain shortcomings and limitations of the regulation. Comments on the draft of regulation were also made by Transparency International (TI) Slovenia, which points out, among other things, the lack of analysis of the consequences of the supervisory body, where the overall effectiveness of the body in preventing corruption could be jeopardized in the absence of additional funds. Furthermore, TI pointed out the narrow definition of the law to which the regulation in question is supposed to refer, as it is not entirely clear from the provisions of the regulation whether it refers in all parts to EU law or Slovenian law. The draft regulation is also supposed to allow too much discretion for the trustee or official person in assessing that the application is not being considered, without procedural options on the part of the whistleblower. In the area of trustees, TI also points out the lack of protection against them, who may also be subject to retaliation. TI further problematizes the provision that does not allow the handling of anonymous applications, which is contrary to international recommendations in the field of protection of whistleblowers. This is one of the ways of self-protection of the whistleblower. Failure to deal with anonymous whistleblower is a disproportionate approach, as the legislator could provide another way to communicate with an anonymous whistleblower.

In the rest of the TI, he points out the ambiguities of the regulation draft and proposes a number of nomotechnical improvements in order to pursue the clarity of the regulation and its compliance with the principles of protection of whistleblowers.

 

The draft of Whistleblower protection Law is currently in inter-ministerial coordination and in the service of the government office for legislation. Given that the deadline for the implementation of the directive has already expired and that a public debate has already taken place, it is more likely that we can expect the adoption of the regulation in the near future.

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