Slovenia: What you need to know about whistleblowing
The Act on the Protection of Whistleblowers ('ZZPri') was recently published in the Official Gazette of the Republic of Slovenia on 7 February 2023, and took effect on 22 February 2023. The ZZPri implements the Directive on the Protection of Persons who Report Breaches of Union Law (Directive (EU) 2019/1937) ('the Whistleblowing Directive') into Slovenia's legal system. While the implementation was delayed, Slovenia is now in compliance with the Whistleblowing Directive, which required implementation by December 2021.
In this Insight article, Martin Šafar, Partner at Odvetniška pisarana Šafar in partnerji, d.o.o., explores key provisions under the ZZPri.
The ZZPri, which incorporates input from various stakeholders, including non-governmental organisations, was adopted and has significantly different provisions from the initial proposal. Its main goals are to encourage whistleblowers to report perceived violations of regulations in their work environment and establish adequate protection for them, including prohibiting retaliatory measures and providing safeguards. Additionally, the ZZPri mandates further requirements for entities in the public and private sectors, as well as organisations to establish an internal reporting system.
Duty of confidentiality
One of the key measures to encourage whistleblowers to come forward and build trust that they will be protected from retaliation is the ban on disclosing their identity. To ensure this protection, the internal reporting process must be designed in a way that only the designated recipient of the report becomes aware of the whistleblower's identity.
The ZZPri lists several examples of retaliatory measures that are strictly prohibited, and it also considers threats or attempted retaliation as forms of retaliation. By providing strong legal protections against retaliation, the ZZPri aims to create a safe and secure environment for whistleblowers to report perceived violations of regulations in their work environment.
Scope of whistleblower protection
Under the ZZPri, individuals who report or publicly disclose information on breaches acquired in the context of their work-related activities are protected, regardless of their employment status. These individuals must have reasonable grounds to believe that the information they reported is true and must make the report within two years of the cessation of the breach, in accordance with ZZPri provisions. The legislation provides protection against retaliatory measures to individuals in comparable circumstances, not just employees. It is worth noting that the ZZPri applies to violations of laws or regulations in the public or private sector.
Whistleblowers who report violations of regulations will be afforded protection under the ZZPri. This includes protection from disclosure of their identity, exemption from responsibility for the application, and protection against retaliation.
Whistleblowers will be able to claim judicial protection, with a legal presumption that any adverse measures taken against them by their employer after submitting an application were done as a retaliatory measure. Whistleblowers are also entitled to seek a temporary injunction and free legal aid, regardless of their financial situation.
In addition, they can claim unemployment benefits, even if their contract is terminated for reasons of fault, although they will need to return the amount of the unemployment benefit if they do not succeed in the court case regarding the unlawful termination.
Psychological support is also available for whistleblowers.
To obtain protective measures, the whistleblower must apply for a certificate of eligibility from the Commission for the Prevention of Corruption ('the Commission'). The Commission's responsibilities have been expanded by law, including providing information to the public, which may increase its workload.
Management of whistleblowing schemes
Under the ZZPri, liable parties in the public and private sectors include organisations with 50 or more employees, entities with at least 10 employees engaged in fields, such as health and wastewater management, and specific state authorities and local self-governing bodies. These organisations are required to establish secure reporting channels, appoint a confidant to handle reported violations (joint appointments are allowed under certain conditions), and adopt an internal act defining the reporting, investigation, and corrective procedure, as well as informing management about it. Private sector organisations with over 250 employees and all public sector organisations must establish an internal registration procedure by 23 May 2023. Other private sector organisations have until 17 December 2023, to comply with the same requirement.
Role of confidants
The ZZPri does not impose any specific requirements, such as level of education or other qualifications, for the appointment of a confidant, leaving it up to the organisation to choose an appropriate person.
Some organisations may choose to designate an existing internal unit, such as the compliance department, to handle reports of violations, while others may opt to combine different functions, such as the person responsible for dealing with mobbing, personal data protection, and integrity planning. Organisations can also appoint two or more people to serve as confidants for whistleblowers. Self-governing local communities have the option to create a shared internal reporting system, which can be managed by one of the participating communities or a joint municipal administration.
The Commission plays an important role in training and supporting confidants.
The whistleblower can provide information about the violation directly using the external whistleblowing route if an internal whistleblowing route is not in stall, if an internal whistleblowing could not be dealt with effectively, or if the whistleblower believes there is a risk of retaliation in the event of an internal whistleblowing.
To establish an internal reporting system, a specific electronic address, telephone number, or other means of contact are designated to receive reports, and measures are taken to ensure that the whistleblower's identity remains confidential. Additionally, a confidential intermediary is appointed to handle the reporting process.
The confidant has the authority to reveal the identity of the person who made the report in three scenarios:
- Firstly, if the person making the report consents to the disclosure, the confidant will request their approval.
- Secondly, if the state prosecutor deems it necessary for investigating criminal offences, they may request the disclosure of the person's identity, but the whistleblower will be informed in advance.
- Thirdly, the court may require the disclosure of the person's identity for legal proceedings, including those related to protecting the rights of the person in question, and the whistleblower will be informed beforehand.
However, nobody is allowed to reveal the identity of the whistleblower if it would put their life in danger or seriously threaten public interest, security, or defence of the state. One of these authorities is also the Commission which has a special status under the ZZPri and which already has experience in protecting whistleblowers who have received retaliatory measures based on the Integrity and Prevention of Corruption Act ('ZIntPK').
The ZZPri incorporates some whistleblower protections that were already in the ZIntPK and other regulations. As a result, some provisions in the ZIntPK have been modified. For example, the previous option for whistleblowers who were public servants to request relocation to another equivalent position in the event of retaliatory measures has been removed. This change has raised concerns that the position of whistleblowers in cases of corruption may have been weakened to some extent, despite the goal of the ZZPri to maintain or increase the level of protection already in place.
Given the lack of a clear definition, it remains unclear when a disclosed violation of regulations by a whistleblower will be considered to be in the public interest. Therefore, it will be up to judicial practice to determine how to address this issue in practice.
The interpretation of the term 'regulations' that apply in Slovenia is a question that arises in the field of labour law, as valid collective bargaining agreements, which are not considered regulations, are often used. Additionally, it is unclear how to address violations of regulations that apply in Slovenia, especially since the Whistleblowing Directive deals with violations of EU law.
The ZZPri raises concerns about the potential risks of false whistleblowers making accusations against employers. However, the ZZPri provides strict conditions for public disclosure, as well as multiple reporting channels to prevent false accusations are provided (internal, external, and only then possibly public disclosure). The balance between the whistleblower's protection and the employer's rights is also addressed through criminal provisions, which penalise whistleblowers who make intentionally false claims.
The ZZPri classifies offences as minor, serious, and systemic, and the is responsible for conducting proceedings. Retaliatory measures taken against a whistleblower are considered a serious offence, and the perpetrator can be fined between €5,000 and €20,000. For medium or large-sized companies, the fine can range from €10,000 to €60,000. Responsible persons can also be fined up to €2,500.
Protecting whistleblowers is crucial in the fight against corruption, but it remains to be seen if the new legislation in Slovenia will make a significant difference. Will individuals who have knowledge of violations be willing to report them, knowing that they now have legal protections under the ZZPri, or will the fear of retaliation prevail?
Slovenia is a small country with a relatively young democracy, and corruption and nepotism remain entrenched in many businesses and public institutions. It is possible that whistleblowers will face social and professional isolation, and that word about their identity will inevitably leak out. Moreover, there are concerns about the impartiality of the external registration authorities, which may be influenced by politics.
Despite these challenges, it is important to continue to advocate for stronger whistleblower protections and to support those who have the courage to come forward.
Martin Šafar Partner
Odvetniška pisarana Šafar in partnerji, d.o.o., Ljubljana