The Polish legal system is lacking one highly anticipated regulation, namely one concerning the protection of the so-called whistleblowers, i.e. people reporting violations of the law. Although many draft legislations in this regard have been published, so far there is no separate legal act in the Polish legal system devoted to the issue.

It is not a topic that came out of nowhere, as it results from the adoption of Directive (EU) 2019/1937 of the European Parliament and of the Council of 23 October 2019 on the protection of persons reporting breaches of Union law (“Directive 2019/1937”). According to Article 26 Section 2 Member States were obliged to introduce the laws, regulations, and administrative provisions necessary to comply with it by December 17, 2021. The transposition of the directive into the Polish legal system has not, however, yet taken place.

Consequences of the failure to transpose Directive 2019/1937

Due to the abovementioned, a few days ago the Court of Justice of the European Union (“CJEU”), ruled, in proceedings based on a complaint from the European Commission, that the Republic of Poland had failed to fulfill its obligations under Article 26 Section 1 and 3 of Directive 2019/1937.[1]

The CJEU recalled that, according to settled case law, Member States cannot rely on provisions, practices, or situations in their internal legal order to justify a failure to fulfill obligations under EU law. Attempting to justify oneself with the difficulties caused by the COVID-19 pandemic or the influx of refugees resulting from aggression against Ukraine was also considered ineffective. Therefore, the CJEU stated that by failing to adopt the provisions necessary to implement Directive 2019/1937 within the two-month deadline set in the reasoned opinion of 15 July 2022, the Republic of Poland had failed to fulfill its obligations under Article 26 Section 1 and 3 of Directive 2019/1937. In consequence, a lump sum fine of EUR 7,000,000 and a daily fine, counted from the day of the judgment commented, of EUR 40,000 were imposed.

Governmental Proposal of the Whistleblowers Protection Act

Recently, the Governmental Proposal of the Whistleblowers Protection Act (the “Proposal”) has been submitted to the lower house of the parliament. It has already been given a print number and has been submitted to the first reading in the committees. It has been yet another attempt to adopt a comprehensive regulation concerning the protection of these entities.

It is worth mentioning that the drafter decided to replace the term “reporter of violations of law” with the commonly used term “whistleblower,”[1] which means a natural person who reports or publicly discloses information about a violation of law, obtained in a work-related context. The term includes, among others:

• employees
• temporary workers
• persons providing work on a basis other than an employment relationship
• entrepreneurs
• commercial proxies
• shareholders or partners
• members of the bodies of legal persons or organizational units without a legal personality
• persons performing work under the supervision and direction of a contractor, subcontractor, or supplier
• trainees
• volunteers
• apprentices
• officers within the meaning of the provisions above
• soldiers (open catalog).

Moreover, the commented provisions shall also apply before an employment relationship or other legal relationship constituting the basis for the provision of work/services/function or service is established, as well as after such a relationship is terminated.

The term “violation” is understood as an action or omission that is illegal or intended to evade the law in the areas including, e.g.: labor law, counteracting money laundering and terrorism financing, personal data and privacy protection, the internal market of the EU, constitutional freedoms, and human and citizen rights (Article 3 Section 1 of the Project). It is also possible to additionally regulate the issue of reporting violations of a given legal entity’s internal regulations or ethical standards.

According to the Project, there are three ways of disclosing violations after becoming aware of them:

• internal reporting – oral or written transmission of information to a legal entity whose whistleblower is an employee or has other commercial relationships with it (there is a possibility of adopting an internal reporting procedure voluntarily in the case of an entity with fewer than 50 people performing paid work as of January 1 or July 1 of a given year),
• external reporting – oral or written submission of information to the Commissioner for Human Rights or a public authority,
• public disclosure– providing information about the violation to the public.

Legal entities, the Commissioner for Human Rights, and public authorities may accept anonymous reports. Notably, the ways of disclosing violations are independent of themselves in the sense that there is no requirement for prior internal reporting.

A whistleblower is protected from the moment of reporting or public disclosure. The condition is that he had reasonable grounds to believe that the information subject disclosure was true at the time of reporting.

It is forbidden to perform any retaliatory actions against a whistleblower or to attempt or threaten with attempting to perform such actions against him. In this respect, the drafter also uses an open catalog mentioning examples of retaliatory actions such as a refusal to establish an employment relationship, a dismissal by notice/ termination without notice of employment relationship, a reduction of remuneration, a job transfer to a lower position, mobbing, and discrimination. Importantly, a reversed burden of proof was proposed in this regard, so it is the employer that bears the burden of proof that the action taken is not retaliatory.

The drafter also regulated the invalidity by operation of the law of the so-called gagging clauses, i.e. those limiting the possibility of reporting or disclosing information about a violation. This concerns, among others: contracts of labor and other acts based on which an employment relationship is established, or which shape the rights and obligations of the parties to the employment relationship.

If retaliatory actions against a whistleblower are taken, one would be entitled to compensation in an amount not lower than the average monthly salary in the national market in the previous year or a recompense. However, the right to compensation or recompense, for an infringement of personal interests is, available to a person who has suffered damage due to the whistleblower consciously reporting or publicly disclosing false information.

Moreover, one cannot waive these rights or assume liability for any damage resulting from reporting or public disclosure. This, however, does not apply to acceptance of liability for damage resulting from conscious reporting or public disclosure of false information.

Not only the whistleblowers are to be protected, but also people assisting in making the reports and people associated with the whistleblowers. The provisions would be applied to them as well.

Under the Project, the following will be penalized:

• prevention or significant hindrance to reporting
• taking retaliatory actions
• disclosure of the identity of a whistleblower, a person assisting in making the report, or a person associated with a whistleblower
• making a report or public disclosure despite knowing that no violation of the law occurred
• failing to establish an internal reporting procedure or establishing it with a material breach of requirements.

The sanctions for the above include a fine, restriction of liberty, or imprisonment respectively.

The Act would enter into force after 3 months from the date of announcement (except for the provisions regarding external notifications—in their case a 6-month long vacatio legis would apply). According to the information concerning the work progress on the lower chamber of the parliament’s website the Family and Social Policy Committee has a deadline of May 24, 2024, for submitting a report. It can be assumed (especially considering the fines imposed by the CJEU) that this time work on the Project will not only go faster but also further than previously, and therefore whistleblowers will become protected.

[1] Judgment of the Court (First Chamber) of April 25, 2024, C-147/23, ECLI:EU:C:2024:346.

[2] https://www.sejm.gov.pl/sejm10.nsf/PrzebiegProc.xsp?nr=317, accessed April 30, 2024.