Whistleblower Protection Bill Published for Public Consultation
On April 21, 2022, the Public Consultations Portal of the Council of Ministers posted a Bill on the Protection of Persons Reporting or Publicly Exposing Breaches of the Law; the Bill can be accessed at: https://strategy.bg/PublicConsultations/View.aspx?lang=bg-BG&Id=6784. Said Bill needs to be enacted by Parliament in pursuance of the requirements of 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; it will be publicly available for comments and opinions till May 23, 2022.
The Bill envisions measures for the protection of persons who report or publicly expose breaches of the Bulgarian or European Union law in the area of public procurement; financial services and anti-money laundering; product safety and compliance; transport safety; environmental protection; radiation safety; food and animal feed safety; public health; consumer protection; privacy and personal data protection; network security; as well as any infringements upon the financial interests of the EU, the rules on the functioning of the internal market or crimes of a general nature. Exempt from the scope of the Bill are public procurement in the area of defense, the protection of classified information and attorney-client privilege; health information confidentiality and the rules of criminal procedure.
A condition precedent for providing protection to whistleblowers is for the information reported to concern an act of wrongdoing within the scope of the proposed bill and for the reporting person to have valid reasons to believe that said information is truthful. Where such information is made public, protection is made subject to more stringent requirements with respect to the reporting person, namely: said person must either have first filed a report in accordance with the procedure prescribed in the bill and received no formal response from the authorities; or there is a clear danger of harm to the public interest or other harm that would be difficult to remedy; or there is a risk of retaliation by the affected parties or a risk that the filed report will be disregarded. Therefore, the public exposure of wrongdoing is a harsher measure whereby protection will be provided solely if these additional preconditions are met.
Two options are provided for filing reports of wrongdoing: an internal and an external channel of communication. The internal channel amounts to an opportunity to file a report via the entity whose operation is subject to the reporting; in that scenario, public sector employers and enterprises with more than 50-strong workforce will be mandated to designate an employee or a unit within the system to handle such reports in keeping with the requirements of the law, and to check and verify the merit of the report within 3 months of receipt. The external channel of communication involves specially designated officers of the Counter-Corruption and Criminal Assets Forfeiture Commission, which is duly authorized to conduct probes and investigations.
Measures have also been provided to assure the privacy of whistleblowers and a blanket ban is imposed on any retaliatory countermeasures targeting them, including termination, suspension, demotion or delayed promotion, denial of training, etc. If any such measures are undertaken, the reporting person will be entitled to damages for pecuniary and non-pecuniary (moral) harm. The bill also envisions that a whistleblower cannot be held liable for acquiring information of wrongdoing, unless it has been obtained by criminal means. No liability will be sought for the filing of a report or the public exposure of wrongdoing if the whistleblower had reasons to believe that in doing so, they have contributed to uncovering an offense. Also, an opportunity is provided for the whistleblower to seek termination of any criminal, civil or administrative proceedings initiated against him/herself in relation to the report filed or public exposure made, provided that the whistleblower had reasons to believe that their act contributed to uncovering an offense. The Bill raises a number of issues as it allows for the reporting persons to be exempted from liability on a purely subjective premise: the existence of a valid reason for the whistleblower to believe that he/she has performed an act instrumental to the uncovering of wrongdoing. Also, the possibility provided in the Bill to terminate ongoing criminal, civil and administrative proceedings seems out of synch with the relevant procedural laws, in that no such termination fits within the logic of other procedural frameworks, nor does the Bill specify at which stage in the proceedings and following what procedural motions seeking to ascertain the grounds for it should such termination be ordered by the relevant court of law.