The responsible for the internal reporting channel

14 May, 2024
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Compliance
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MES Advocats


The Spanish Law 2/2023, 20th of February, regulating the protection of persons who report regulatory infringements and the fight against corruption (hereinafter “Law 2/2023”), which transposes Directive (EU) 2019/1937 of the European Parliament and of the Council of October 23, 2019, on the protection of persons reporting breaches of Union law, requires the existence of a responsible person for the internal reporting channel (hereinafter “The Responsible”).

The Responsible is the person or body designated by the company to ensure compliance with the obligations established in Law 2/2023, as well as to efficiently manage the internal reporting channel.

Profile of the Responsible

As we will see below, not just anyone can be the Responsible. Law 2/2023, in its article 8, regulates who can be designated as such.

First, what kind of person can it be? It can be either a natural person or a collegiate body. If the entity opts for the latter, “the powers to manage the internal information system and to process investigation files shall be delegated to one of its members.” In other words, the functions must be delegated to a natural person who is a member of said collegiate body.

Focusing on the private sector, in general terms, the Responsible must be a company executive and must exercise their role independently of the company’s management or governing body.

If due to the size or structure of the entity it is not possible, Law 2/2023 authorizes a manager to exercise, in addition to their usual responsibilities, those of the Responsible, provided that any possible conflict of interest is avoided.

When there already exists in the company a person responsible for compliance or integrity policies (colloquially known as a “Compliance Officer”), this person may be designated as the Responsible. All this without prejudice to also complying with the requirements established in Law 2/2023, which we will explain below.

Each company must assess the suitability of the person designated as Responsible, ensuring that they have the independence and autonomy required to carry out their responsibilities, as well as the necessary preparation and training.

For groups of companies, article 11.2 of Law 2/2023 establishes the possibility of having a single Responsible for the entire group, although each member company may choose to designate its own Responsible.

Appointment and Termination

The appointment, dismissal, and termination of the Responsible natural person is the responsibility of the management or governing body of each company (Article 8 of Law 2/2023).

But, within what period must notification be made to the Independent Whistleblower Protection Authority or, where applicable, to the competent authorities or bodies of the autonomous communities within the scope of their respective competences (such as the Anti-Fraud Office of Catalonia)?

Within ten business days following their appointment, dismissal, and/or termination. In the latter case, the reasons justifying it must also be stated.

As explained above, the entity or body must avoid any conflict of interest in the appointment of the Responsible. In this sense, although it is not obligatory, it is advisable to designate a substitute as Responsible so that, in cases of conflicts of interest of the Responsible, they can perform their functions.

Functions

Among the main functions of the Responsible, the following stand out:

1) They are ultimately responsible for ensuring the proper functioning of the internal reporting channel. Therefore, they must ensure diligent processing of the information management procedure.

2) They guarantee the confidentiality of the information received.

3) They ensure the independence of the internal reporting channel.

4) They ensure the application of the guarantees for the protection of whistleblowers provided for in Law 2/2023.

5) They make decisions regarding preventive measures to protect the whistleblower or persons implicated in a received complaint.

In conclusion, the Responsible must carry out their functions with the utmost professionalism, independence, and autonomy, that is, without receiving any instructions from the other organs of the company. In fact, the Responsible may be subject to fines ranging from 1,001 to 10,000 euros for failing to submit complete information to the Independent Whistleblower Protection Authority, or for submitting it outside the deadline granted for this purpose.

At MES Advocats, we offer legal advice services to any Responsible for the internal reporting channel to comply with all obligations imposed by Law 2/2023. If you need more information or are interested in obtaining a quote, you can contact us through this link.

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Internat reporting channel

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