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Whistleblowing – legal situation in Romania

by Sorin Stratula, Managing Partner, Attorney

Romania has a specific law on whistleblowing protection since 2004 – Law no. 571/2004 on the protection of personnel within public authorities and institutions disclosing violations of the law, shortly referred to as “Romanian Whistleblower’s Law”, and was the first country in the continental legislative system to have a comprehensive whistleblower protection act.

However, mention should be made that the Romanian Whistleblower’s Law covers the personnel from the public sector alone, while employees within the private sector are not protected by this Law, but, as the case may be, by the general labor legislation or by the witness protection legislation, if and when they experience illicit or abusive retaliations due to legal whistleblowing (like in the case of abusive dismissals due to whistleblowing or in case they are called as witnesses to report crimes or other violations of law).

In Romania the legislation to protect whistleblowers in the public sector appeared as a result of an advocacy campaign initiated by Transparency International Romania as part of a larger project meant to strengthen and improve integrity in the public sector.

According to the Romanian Whistleblower’s Law, a whistleblower[1] is the person making a notice in good faith concerning any fact involving a violation of law, of professional deontology or of principles of a good administration, of efficiency, effectiveness, economic efficiency and transparency and which is employed in one of the public authorities and institutions within the central public administration, local public administration, in the apparatus of the Parliament, the work apparatus of the Presidential Administration, the work apparatus of the Government, autonomous administrative authorities, cultural public institutions, education, health and social assistance fields, national companies, national and local interest public corporations, as well as to national state capital companies.

The purpose of the Romanian Whistleblower’s Law is to protect the public personnel who claimed or notified violations of the law within the public authorities, public institutions and other public units from the ones mentioned above, committed by persons holding management or execution positions within the public authorities and institutions and within other budgetary units.

The signaling of law infringements which constitute misbehaviors, contraventions or offences shall represent a public interest warning and may refer to law infringements like: corruption offences, offences against financial interests of the European Communities, preferential or discriminating treatments, the breach of the provisions concerning the incompatibilities and conflicts of interest, the political bias in exercising the job prerogatives (except the persons elected or assigned on a political basis), negligence or incompetence at work, passing administrative deeds in obscure or private interest, against the public one, bad management of public patrimony, etc.

Whistleblowing disclosure can be made, alternatively or cumulatively, via internal or external channels, to:

  • the hierarchical superior of the person having breached the legal provisions,
  • the manager of the public authority, of the public institution or budgetary unit within which the person having breached the legal provisions is employed, or within which the illegal practice is notified, even if the author cannot be identified,
  • the discipline committees or to other similar bodies within the public authorities,
  • the judicial bodies (Prosecutor’s Office, Police),
  • the bodies in charge with finding and researching the conflicts of interests and of incompatibilities (in Romania, such a body is the National Integrity Agency),
  • the parliamentary commissions (more specifically the Chamber of Deputies’ Research Commission for Abuse, Corruption and Petitions),
  • mass-media,
  • the professional, trade union or employers organizations or
  • non-government organizations.

If such a disclosure is made, the whistleblower is protected, meaning that he is presumed to have acted in good-faith, until proven otherwise. Also, in case the person denounced by the warning in public interest is a hierarchical direct or indirect superior, or has duties of control, inspection and assessment of the whistleblower, the discipline committee or other similar body shall ensure the protection of the whistleblower, by keeping his/her identity secret. In case of public interest warnings regarding corruption offences or offences against financial interests of the European Communities, witness’ identity data protection of Law no. 682/2002 regarding the witness protection, shall be enforced ex officio.

As for the private sector, private companies can regulate their own rules regarding whistleblowing, through internal regulations.

[1] We need to also stress that the term “whistleblower” in this presentation shall not be meant to have the similar meaning with “informant”, as this presentation treats the whistleblowing within employment relationships alone. We will refer to the strict meaning offered by the Romanian Whistleblower’s Law.

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