In Spain, Law 2/2023, of 20 February, regulating the protection of persons who report regulatory infringements and the fight against corruption, establishes that all companies with more than 50 employees and organisations that manage public funds must have an anonymous ethics or whistleblowing channel, so that employees and other persons who may have links with the organisation can report, without fear of reprisals, serious criminal or administrative infringements of which they have become aware.
The deadline for Spanish companies with more than 250 employees to adapt to the new rules was 13 June 2023. Companies with 50 to 249 workers, in turn, had until 1 December 2023 to do so.
Despite the legal obligation, there are still many companies that do not have a whistleblowing channel and others that, although they have already implemented it, seem to consider it a mere formality and think that it will not be necessary to strictly comply with the requirements of the law when managing the channel.
For many employers, this new regulation is just another burden for companies, as it is something to which they must devote means and resources, with the consequent cost, without any benefit. It is true that the ethics or whistleblowing channel is another burden for companies, but it is a rule which, it should not be forgotten, is imposed by European Union (EU) legislation and is intended to protect people who, in a work or professional context, detect serious or very serious criminal or administrative offences and report them. The aim is to prosecute breaches of EU law and serious criminal and administrative offences under EU law.
Regardless of one’s opinion on the appropriateness of this regulation, companies should be aware of the harsh penalty regime provided for in this law in cases of non-compliance with its requirements.
In this respect, it should be borne in mind that the parties responsible for infringements are legal persons, so companies, and also natural persons, whether they form part of a collegiate body (provided they have voted in favour of the infringing agreement), or whether they act individually. In addition, liability for infringements will be extended to those responsible even when their activity in the company has ceased.
Article 63 of the law defines infringements, which can be very serious, serious or minor.
It should be noted that most of the infringing conducts are considered serious or very serious, and that the distinction between one and the other is established on the basis of the intentionality of the action or omission. Failure to comply with the obligation to have a complaints channel is, in any case, considered a very serious infringement.
What kind of fines can people who do not comply with the law face?
| Legal persons | Natural persons | |
| Minor infringements | 1,001€ – 10,000€ | Hasta 100,000€ |
| Serious infringements | 10,001€ – 30,000€ | 100,001€ – 600,000€ |
| Very serious infringements | 30,001€ – 300,000€ | 600,001€ – 1,000,000€ |
Thus, apart from more laudable motives, the serious consequences of non-compliance with the whistleblowing channel regulations should be considered sufficient to compel companies to comply with the law.
If you have any questions or need to implement the whistleblowing channel in your Spanish company, do not hesitate to contact AGM Abogados.
Héctor Déniz Guedes
