Transposition of the European Whistleblower Directive in Greece by Law No. 4990/2022
Greek Law No. 4990/2022, which entered into force on 11/11/2022, transposes the EU Whistleblower Directive No. 2019/1937 in the Greek legal regime and establishes a protective framework for whistleblowers reporting breaches of EU law.
In particular, it provides for the creation of confidential internal and external reporting channels, the protection of whistleblowers against retaliation, and sanctions in case of violations against the law.
Personal scope of application
In terms of the personal scope of application of Law No. 4990/2022, it applies to whistleblowers who are employees in the public or private sector, whereby the concept of employment is broadly defined to include both employees providing their services subject to the employer’s instructions and self-employed workers, shareholders and members of executive bodies, interns, as well as any persons working under the instructions of contractors, subcontractors and suppliers.
Certain third parties who are connected to the whistleblower in a special way (such as colleagues, relatives, intermediaries, sole proprietorships or legal entities in which the whistleblower has an interest, or for which he works, or with which he is otherwise connected by an employment relationship) also fall under the protection of the law, provided that they may also be affected by retaliatory measures.
From a temporal point of view, it is not necessary that the employment relationship still exists at the time of the submission of the report: Thus, whistleblowers who pass on information only after the termination or before the beginning of their employment relationship (e. g. applicants, pensioners) are also protected.
Material scope of application
In terms of content, the protection provided by the Law No. 4990/2022 covers breaches of EU law in the following areas:
- Public procurement
- Financial services, products and markets, as well as the prevention of money laundering and terrorist financing
- Product safety and compliance
- Transport safety
- Environmental protection
- Radiation and nuclear safety
- Food and feed safety and animal welfare and health
- Public health protection
- Consumer protection
- Protection of privacy and personal data and security of network and information systems
- Infringements in the Union’s financial interests
- infringements in the function of the internal market
By contrast, breaches of EU law in the following areas are not covered:
- Defense and security issues
- Classified information
- Legal and medical confidentiality
- Confidentiality of judicial hearings and other confidential proceedings
- Provisions of the criminal procedure code
- Exercise of workers’ rights in relation to consultation by workers’ representatives or trade unions, and possible adverse action resulting therefrom, as well as the autonomy of social partners and their right to conclude collective agreements
Types of information protected by Law No. 4990/2022
Information, including reasonable suspicions, about violations that have been committed or are likely to be committed in the organization in which the complainant works, has worked or is about to work, or in other organizations with which the complainant is connected by means of his or her work, as well as information about attempts to conceal violations, fall under the protective scope of application of the Law.
Conditions for providing Protection:
- At the time of the report the complainant must have reasonable ground to believe that the information about the reported violations was true and fell within the scope of this Law, irrespective of the way the report was made (internally or externally or by public disclosure, directly to the institutions, bodies, offices and agencies of the European Union concerned).
- In the event of anonymously reported information, the anonymous whistleblower must have been subsequently identified and therefore subject to retaliation.
Obligations for private companies – Internal reporting channel
Private companies with 50 or more employees, regardless of their specific area of activity, are obliged to establish an internal reporting channel that ensures the anonymity and protection of the whistleblower.
The same obligations apply to companies operating in the following sectors, regardless of their number of employees:
- Financial services, products and markets, transports and the environmental sector; companies operating on the basis of a Decision approving Environmental Conditions or whose activities may, by their nature, pose a risk to the environment and to public health also fall under this category.
- The law provides that a Joint Ministerial Decision will further specify the tax activity codes of companies whose activities are included in the aforementioned business sectors, and will thus undertake the same obligations.
Internal reporting channel: further details
There is an obligation to appoint a reporting officer to receive and process reports.
Companies with 50 to 249 employees may appoint a joint reporting officer.
The term of office of the reporting officer is at least one calendar year; earlier termination is only possible on serious grounds.
The reporting officer may be an employee of the company or an external third party. In both cases, the reporting officer reports directly to the highest management body of the company.
The reporting officer is obliged to carry out his or her activities in a transparent and impartial manner.
Certain persons, e.g. persons against whom penalties or disciplinary measures of a certain type and severity have been imposed, may not be appointed as reporting officers.
Any report may be issued by written, oral and electronic means, and said means must also be accessible to persons with disabilities.
Any report issued by means of an oral notice may be transmitted via telephone or other voice messaging systems, as well as by meeting the reporting officer in person.
Strict confidentiality and data protection rules must be observed.
In addition, while maintaining these same strict confidentiality requirements, each report received must be documented and the documentation must be retained for a specified period of time.
Furthermore, it is necessary that the employees are properly informed about the entry into force of the Whistleblower Protection Act, as well as about the reporting channel set up within the company and the respective data protection provisions.
This can be done, for example, by implementing and publishing a company policy on the matter.
The establishment of the internal reporting channel is intended to ensure the confidentiality of the identity of the whistleblower and to protect him or her from retaliation.
Other types of reporting channels
In addition to this internal reporting channel, Law No. 4990/2022 also provides for an external reporting channel to the competent so-called “National Transparency Authority”.
It is provided that public disclosure constitutes the last resort of action and falls under the protection of the aforementioned Law only if the internal and external reporting channels fail.
Protection against retaliation
The law prohibits any form of retaliation – e.g. suspension or dismissal – against the whistleblower, including any threat thereof.
If the whistleblower suffers such retaliation in response to his or her whistleblowing, said action is considered null and void under the law.
There is also a right to claim compensation for damages.
In addition, the whistleblower is entitled to free legal advice and assistance to defend himself against any retaliation.
Mandatory Law
The provisions of Law No. 4990/2022 constitute mandatory law and no derogation from its regulations may be made – by contract or otherwise.
Sanctions in case of violation
Law No. 4990/2022 provides for both fines and, in certain more serious cases, criminal sanctions for violations against its protective provisions.
Transitional and implementing provisions
Companies with 50 to 249 employees must comply with the obligation to establish an internal reporting channel and to appoint a reporting officer by the 17th December 2023 and must notify the competent labor inspectorate of their compliance within 2 months.
Companies with more than 249 employees must comply with the aforementioned obligation to set up an internal reporting channel within six months upon entry into force of Law No. 4990/2022, i.e. by 11 May 2023 at the latest, and must also notify the competent labor inspectorate of their compliance with the requirements within two months.
Companies that fall under the scope of Law No. 4990/2022 regardless of their number of employees, but solely because of their field of activity (financial services, etc.), must implement the requirements immediately. However, there is some time for preparation until the above mentioned Joint Ministerial Decision is issued.
