New draft law on protection of Whistleblowers
On 11 January 2024, a new draft law appeared on the website of the Governmental Legislation Centre, incorporating changes introduced by the new Ministry of Family, Labour and Social Policy. Legislative work on the draft law on Whistleblowers started at government level back in 2021. The draft law aims to implement Directive 2019/1937 of the European Parliament and of the Council (EU) of 23 October 2019 on the protection of Whistleblowers under Union law. As its adoption was delayed, the new draft was to go on a shortened procedural path, bypassing consultations and agreements, directly to the Standing Committee of the Council of Ministers.
Many elements of the new draft are unchanged from the draft that was worked on in 2021. The proposed draft appears to differ little from the widely criticised previous version prepared by the preceding government. Many elements of the law are a direct copy of the provisions of the EU directive, making them inadequately adapted to national realities.
Due to numerous appeals from various quarters, the draft is unlikely to go through the legislative process at a fast pace.
Public draft law on Whistleblowers
The Stefan Batory Foundation, in cooperation with other NGOs, has prepared a draft law on the protection of Whistleblowers. The document is a combination of solutions proposed by the government and proposals put forward by social organisations.
The public draft law proposes to change the scope of the law’s subject defining which violations qualify a Whistleblower for protection. The government draft adopts a restrictive approach, covering violations from specific areas of law, such as consumer protection, financial regulation, public procurement or environmental protection. According to the authors of the draft, it is important to extend this scope to all violations of the law. Whistleblowers often do not have the legal knowledge to assess whether the violation they report falls within the scope of the law. Therefore, it is important that the scope of violations that can be reported and that qualify for whistleblower protection is broad.
The draft also envisages expanding the scope of protection for Whistleblowers to include not only general laws, but also norms derived from other sources, in particular violations of internal regulations in force in an organisation (codes of ethics, bylaws, procedures of conduct) and codes of good practice that the organisation has undertaken to comply with.
The social draft also includes sanctioning penalties for violations of the Act, including penalties for reprisals against a protected Whistleblower and intentional reporting of false information (acting in bad faith).
Consequences of failure to implement the EU directive
Failure to align domestic legislation with the requirements of the EU Directive has certain consequences.
The European Commission has filed a complaint against Poland with the Court of Justice of the European Union for the delay in implementing the Whistleblower directive, which constitutes a violation of Member State obligations. Member states were obliged to implement the provisions of the Directive into national law by 17 December 2021. Financial penalties may be imposed on Poland due to missed deadlines.
The lack of national legislation also affects companies, which lack guidance on implementing internal whistleblowing systems. In addition to incurring implementation costs, businesses must also spend time developing procedures, appointing responsible persons, preparing internal communications and training employees. It is also uncertain whether existing corporate procedures and systems will not need to be adapted after the introduction of the new law.
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