Whistleblowing in Romania – mandatory or not?

Even though Law no.361/2022 regarding the protection of whistle-blowers (‘Law no.361/2022’) has entered into force in December 2022, the date for transposing all the legal provisions was 17 December 2023, which leads us to the following question: ‘Is whistleblowing now mandatory in Romania or not?’

This is the question which we will look into in the present article, trying to analyse the new legal provisions, which have become applicable at the end of 2023, but also the general provisions of the national criminal legislation, which many companies doing business in Romania might have overlooked over the years.

Starting off with the new legal provisions which have recently entered into force, these are applicable to any public authority or private legal entity with at least 50 employees operating in Romania, given that Law no.361/2022 transposes EU Directive no.2019/1937 on the protection of persons who report breaches of Union law and establishes a general framework for protecting persons who report legal breaches, which have occurred or which are susceptible to occur, within such public or private entities.

The new legislation brings a series of improvements in order to streamline the means for reporting legal breaches, internal disclosure now being encouraged, but not imposed prior to an external disclosure of illegal practices. Public disclosure is also now conditioned by certain requirements, respectively accessing this channel after an internal or external report and only in certain situations expressly provided by the law.

Another novelty brought forth by Law no.361/2022 is the obligation to identify or establish internal channels for reporting legal breaches and internal reporting procedures, but also procedures for performing subsequent investigative actions after such a notification has been received, these obligations being applicable as mentioned before to any legal entity with over 50 employees.

In this respect, the legal provisions impose that the public or private entity designate an independent and impartial person, compartment or third party (even a law firm) with responsibilities regarding the reception, the registration, the examination and the subsequent investigative actions which must be performed, in order to solve the report.

Furthermore, Law no.361/2022 imposes a new obligation, respectively to establish and maintain an electronic registry, in which to indicate any report received, to maintain statistics regarding the reports which mentioned legal breaches, but also to preserve the respective reports for at least five years, at the expiration of which they can be destroyed. What is more, the new legal provisions impose the obligation to maintain strict confidentiality both on the person who will solve the report, but also to any person who might have access, even by error, to the respective report.

Finally, the whistle-blower has the right to be informed on the status of his report, the investigation procedures started to establish the facts of the report, but also the solution which will be issued regarding his report, respectively the end of investigations.

In regards to the persons who can be whistle-blowers and receive the additional protection imposed by Law no.361/2022, these can range from public clerks, persons who perform and independent activities (as provided by art.49 of the Treaty on the functioning of the EU), shareholders, executive or non-executives members of management, persons in the process of becoming employees or ex-employees, as well as persons who report anonymously.

Given that we have analysed all the new legal requirements which have entered into for on 17 December 2023, we must also address the possible consequences of non-compliance, consisting of: (1) significant fines for non-compliance, non-implementation and/or faulty implementation, (2) potential civil and labour liabilities, but also (3) potential criminal liability, in case of ignoring reports regarding such legal breaches.

The only thing left to analyse before we can try and answer the initial question is what is mandatory to be reported by whistle-blowers. In this respect, Law no.361/2022 is quite general and provides that whistle-blowers are any natural persons who report or publicly divulge information regarding to a legal breach, obtained in a professional context. The new legal provisions do not impose any obligation to disclose certain information by whistle-blowers and, as such, we must also analyse the general national legislation.

Art.266 of the Romanian Criminal Code (‘RCC’) sanctions the deed of the individual who, becoming aware of the perpetration of crime against human life or which resulted in the death of an individual, as provided by criminal law, does not notify the authorities immediately. Art.267 RCC also provides a crime which can only be perpetrated by a public clerk, as the act of a public servant who, becoming aware of the perpetration of an offence criminalised by law in connection with the service where they work, omits to immediately notify the criminal investigation body. Specific national legislation acts also sanctions such omissions to notify the authorities regarding the perpetration of a crime by public clerks, with attributes of control.

In conclusion we can try and answer the question ‘Is whistleblowing now mandatory in Romania or not?’ as follows:

  • Yes, it is mandatory to implement all the new legal provisions of Law no.361/2022 regarding the protection of whistle-blowers, if the company falls within the scope of this legislation;
  • The only situation in which a person is obligated to become a whistle-blower is the case provided by art.266 RCC, respectively when the person become aware of the perpetration of a crime against human life or which resulted in the death of an individual; all other situations are optional for whistle-blowers from private entities;
  • Special care should also be taken when dealing with public clerks, as they have a general obligation to report any crime observed in connection with the services where they perform their duties.