A new Whistleblowing Act enters into force on 4 May 2023 in Bulgaria. It regulates the terms and conditions for the protection of persons in the public and private sectors (whistleblowers), who report or publicly disclose information on breaches of Bulgarian legislation or acts of the European Union, which has become known to them during or in connection with the performance of their employment or official duties or in any other work-related context.
The Bulgarian Commission for Personal Data Protection is the central authority for external reporting and protection of the whistleblowers.
As per May 4, 2023, companies with more than 249 employees must have in place their internal whistleblowing channels and procedures.
Companies having between 50 and 249 employees shall comply with the Whistleblowing Act not later than 17 December 2023.
Non-compliance leads to financial sanctions.
SCOPE OF THE LAW
The Whistleblowing Act applies to reports or public disclosure of information on breaches of the Bulgarian legislation or acts of the European Union in the areas of:
- public procurement;
- financial services, products and markets, and prevention of money laundering and terrorist financing;
- safety and compliance of products;
- transport safety;
- protection of the environment;
- food and feed safety, animal health and welfare;
- public health;
- consumer protection;
- respect for privacy and protection of personal data;
- security of network and information systems, etc.
The Law also applies to reports or public disclosure of information on breaches of Bulgarian law concerning:
- the rules for payment of outstanding public state and municipal receivables;
- the labour law;
- the legislation related to the performance of public service.
This Act does not apply to reports of breaches which have become known to persons exercising legal profession and for whom there is a legal duty to comply with the professional secrecy (e.g. lawyers).
Anonymous reports, as well as reports relating to breaches committed more than two years ago, shall not be proceed.
WHISTLEBLOWERS
A reporting person can be:
- a worker, an employee, a civil servant or another person who is employed, regardless of the nature of the work, the manner of pay and the source of the funding;
- a person who works without an employment contract and/or is a freelance worker and/or a craft worker;
- a volunteer or an intern;
- a partner, a shareholder, a sole owner of the capital, a member of the management or supervisory body of a company, a member of the audit committee;
- a person who works for a natural or legal person, its subcontractors or suppliers;
- a candidate for employment who has participated in a competition or another form of recruitment and who has received in that capacity information on a breach;
- a worker or an employee, where the information has been obtained in the framework of an employment or service relationship, which has been terminated at the time of the reporting or the public disclosure
- any other reporting person who reports a breach that has become known to him/her in a work-related context.
The report can be submitted in writing, including by e-mail, or orally. Oral reporting is possible by telephone, through other voice messaging systems and, at the request of the whistleblower, through a personal meeting.
OBLIGED PERSONS
The new Whistleblowing Act applies to:
- employers in the public sector;
- employers in the private sector with 50 or more workers or employees;
- employers in the private sector, regardless of the number of workers or employees, if the activity carried out by them falls within the scope of the specific acts of the European Union.
The obliged persons have to establish an internal channel for reporting of breaches. Employers in the private sector with a total number of 50 to 249 workers or employees may use a common internal reporting channel by designating one person or a separate unit.
As well, they shall provide clear and easily accessible information on the terms and conditions of reporting. The information shall be made available on their websites and in a prominent place in offices and business premises. Each employer shall adopt rules for internal reporting and follow-up on the reports received, as well as to set up and keep records of the reports on breaches.
Furthermore, they shall designate one or more employees who will be responsible for handling reports. For example, the data protection officer may perform these activities. The obliged entities may also assign the functions of receiving and registering reports of breaches to another natural or legal person outside its structure (e.g. law offices).
PROTECTION MEASURES
Any form of retaliation is prohibited against the whistleblowers, having the character of repression and putting them at a disadvantage, as well as threats or attempts for such actions, including in the form of:
- suspension, dismissal or application of another ground for termination of the employment relationship of the person;
- demotion or delaying promotion in office;
- change in the place or nature of the work, the length of working hours or a reduction in remuneration;
- withholding of training for maintenance and improvement of the professional qualification of the worker or employee;
- negative performance assessment, including employment reference;
- enforcement of financial and/or disciplinary liability, including the imposition of disciplinary penalties;
- direct or indirect discrimination, unequal or unfair treatment;
- failure to convert a temporary employment contract into a permanent one, where the worker or employee had legitimate expectations that he or she would be offered permanent employment;
- early termination of a temporary employment contract or refusal to renew it, where this is permissible by law;
- harm, including to the person’s reputation, particularly in social media;
- financial loss, including loss of business and loss of income;
- blacklisting on the basis of a sector or industry-wide informal or formal agreement, which may entail that the person will not, in the future, find employment or supply goods or services in the sector or industry;
- early termination or avoidance of a contract for the supply of goods or services, when the person is a supplier;
- cancellation of a licence or permit, etc.
We can assist you with the interpretation and application of the Bulgarian Whistleblowing Act. For more information please do not hesitate to contact us by e-mail: office@kgmp-legal.com
