Changes to the Polish whistleblowing law – analysis of the 4th draft

Legal analysis of the 4^th draft of the upcoming Polish whistleblowing law, by Martyna Drobnicka, attorney-at-law at KTW.Legal.

The fourth (!) draft act on the protection of persons reporting violations of the law in legal entities – i.e., whistleblowers, was published on 4 August 2022.

The European Commission is issuing formal requests to comply with EU law

The publication is a result of the European Commission issuing reasoned opinions to certain Member states, due to their failure to fully transpose the Directive on the protection of whistleblowers on time. The deadline for transposition of the EU Whistleblowing Directive by the Member states expired on 17 December 2021.

In January 2022, the Commission sent letters of formal notice to 24 Member states for failing to transpose and notify the Commission of national transposition measures within the set deadline. Among these, 15 member states including Poland, have still not adopted transposition measures. They are now allowed two months to reply to the Commission’s reasoned opinions. If the answers are not satisfactory, the Commission may decide to bring cases before the Court of Justice of the European Union against the Member states concerned.

The 4th draft of the Polish whistleblowing law introduces new changes

The release of another draft is therefore associated with the final transfer of its content to the Commission. At the same time, as with previous published versions, new changes were introduced to the content:

1. The definition of reporting has been changed, clarifying that it should be understood as an oral or written internal report or an external report submitted in accordance with the requirements set out in the Act. Previous definitions did not refer to the method and form of a whistleblower report.
   
   
2. In connection with the above amendment, the current draft specifies that the methods of submitting reports should at least include the possibility of reporting orally or in writing, including electronic reporting. It also indicates that you can provide an e-mail address for contact.
   
   
3. The scope of reports may be extended to internal regulations or ethical standards enforced in the organisation. These can include only standards established by the legal entity on the basis of, and compliant with, generally applicable provisions of law.
   
   
4. Further, it has been clarified that the personal data of a whistleblower allowing identification of her/his identity, are not disclosed to unauthorized persons, unless explicit consent of the individual. Therefore, they eliminated from the scope of protection against disclosure other information on the basis of which the identity of the applicant can be directly or indirectly identified.
   
   
5. An oral report, made via an unrecorded telephone line or other unrecorded voice communication system, is to be documented in the form of a conversation protocol that transcribes the exact course of the conversation.
   
   
6. Register of whistleblower reports should include the personal data of the notifier and the person concerned, but only details necessary to identify these persons.
   
   
7. It has been established that individuals who make a report or public disclosure knowing that the information about the misconduct is untrue, are subject to a fine, restriction of liberty or imprisonment for up to 3 years. The previous draft penalized only conscious reporting in this regard, as well as assistance in making such reports.

There are still questions about interpretation of the Polish draft whistleblowing law

As we can see, the new draft to the Polish whistleblowing law again only clarifies and supplements certain provisions (sometimes not making the interpretation easier, for example in terms of determining the method of notifications). At the same time clarification of certain aspects important for entrepreneurs are omitted, such as legal sharing of resources with groups of larger entities.

An important notice is that the date of entry into force of the provisions for the first group of obliged entities has not changed. These will be up to two months from the date of the Whistleblower Act coming into force.

Let us hope that this is the final draft of the Polish whistleblowing law. Perhaps the intervention of the European Commission will actually contribute to the implementation of the act. Therefore, invariably observing the actions of the legislator, we encourage you to take legal steps in creating appropriate procedures for accepting whistleblower reports.

by Martyna Drobnicka, attorney-at-law at KTW.Legal.

Do you wish to learn more about a whistleblowing service and safe internal reporting channels? Read more about Whistlelink’s secure whistleblowing solution here. You can also speak directly to our Territory Manager in Poland, Urszula Bryś or book a free demo of our whistleblowing system!