Poland's Whistleblowing Law: A Chaotic Journey to Compliance
Poland has been grappling with the implementation of the EU Whistleblowing Directive, missing multiple deadlines and facing significant financial penalties. This blog by EWI Fellow Marta Kozak-Maśnicka delves into the complexities, highlighting the challenges and expectations moving forward.
No initial political will
Poland is one of two EU Member States that have not yet transposed the EU Whistleblowing Directive. There is no comprehensive whistleblowing regulation in Poland so far. The implementation deadline for the Directive passed on December 17, 2021. Member States had two years to adopt relevant legislation from the time of publication of the EU Whistleblowing Directive. The transposition process began in December 2020 when the Ministry of Development, Labour and Technology was assigned to manage the implementation process. The first bill was published in October 2021, and thus far, there have been about ten bills, each introducing a few changes to the previous one. The legislative process was chaotic, and the public consultation was primarily limited. There was no political will to pass a new whistleblowing law for a long time. Multiple stakeholders were reluctant to the new rules, which, on the one hand, impose new obligations on business and public administration and, on the other hand, are perceived by part of the public as a law protecting 'snitches.'
New efforts after €7 million penalty by the European Court of Justice
Implementing the EU Whistleblowing Directive has become one of the goals of the new coalition government elected at the end of 2023. The legislation process progressed when, on 25th April 2024, the Court of Justice of the European Union ('CJEU') imposed financial penalties on Poland for failing to transpose the EU Whistleblowing Directive, the first case to be decided on the late transposition and setting the tone of seriousness and importance for the transposition. The cost of Poland's failure to implement the EU Whistleblowing Directive is a lump sum of EUR 7 million and a daily penalty payment of EUR 40 000.00 until the failure ends. Following this judgement on 23rd May, the Sejm (lower chamber of the Polish Parliament) adopted the bill proposed by the government with a few clarifying changes. The Senate (the upper chamber of the Polish parliament) approved the Act of May 23, 2024, on the protection of whistleblowers ('the Act') on June 6 by excluding breaches of labour law from its material scope. This change was lobbied by employer representatives, who argued that whistleblowing law should concern public interest, not personal matters. There needs to be a broader discussion on this matter, as some violations even those of a personal nature, can affect the public interest, e.g. mobbing.
Legislative final debates: labour law outside the scope?
Next week, the Sejm will discuss amendments proposed by the Senate and vote for or against them. Then, the President will sign the law and promulgate it in the Polish Official Journal. The new Act would come into effect three months after promulgation, except for the external reporting rules, which must be implemented over six months. Consequently, businesses must comply with the new Act around September-October this year.
The Act of May 23 extends the material scope of the Whistleblowing Directive by covering corruption, constitutional freedoms, as well as human and civil rights. Legal entities may extend their internal reporting procedure for reporting breaches related to the legal entity's internal regulations or ethical standards. Public officials (police officers, intelligence services, border guards, etc.) and soldiers will be eligible to report irregularities. However, no specific legal arrangements regulate whistleblowing in public services, such as breaches of confidentiality of classified information.
Key legal issues to keep in mind
Reporting persons can deliver external reports to the competent public authorities or the Ombudsman, who makes initial verification and forwards the external notification to the competent public authority. Moreover, the Ombudsman is responsible for providing information and advice.
Legal entities, public authorities, and the Ombudsman may decide whether they wish to receive and follow up anonymous reports. Nevertheless, reporting persons must provide a contact address for effective follow-up and feedback. Therefore, anonymous reporting can remain on paper if the entity that allows anonymous reports does not provide a channel enabling further contact with a whistleblower without specifying personal details.
The Act explicitly enables entities belonging to a capital group to establish a common internal reporting procedure, if it complies with the Act. It is unclear if a mother company may follow up or conduct further investigations. The Act states that an external body can only play a supporting role by receiving the internal notification, acknowledging receipt of the notification, providing feedback, or providing information on the internal notification procedure.
Reporting persons are protected if they had reasonable grounds to believe that the reported information was true at the time of reporting and that it fell within the scope of the Act. The Act prohibits retaliation against a whistleblower. The employer (or employing entity) shall bear the burden of proof that the action taken against a whistleblower is not retaliatory. In case of retaliation, a whistleblower is entitled to compensation that cannot fall below the average monthly salary of the previous year, currently set at PLN 7155.48 (ca. EUR 1664).
The new whistleblowing Act will be challenging for practitioners as there are many legitimate concerns about interpreting some provisions. The practice of the new Act will show what further changes will be necessary.
Marta Kozak-Maśnicka is a Fellow at the European Whistleblowing Institute, a PhD candidate at University of Warsaw and a lawyer in Poland.
