On June 1, 2023, Act No. 189/2023 Coll. was published in the Collection of Laws of the Slovak Republic, amending Act No. 54/2019 Coll. on the Protection of Whistleblowers and on Amendments to Certain Acts (hereinafter also referred to as the “Act”) and amending Act No. 327/2005 Coll. on the Provision of Legal Aid to Persons in Material Need and Amending Act No. 586/2003 Coll. on the Legal Profession and on the amendment and supplementation of Act No. 455/1991 Coll. on Trade Licensing (Trade Licensing Act), as amended by subsequent regulations, as amended by Act No. 8/2005 Coll., as amended by subsequent regulations (hereinafter also referred to as the “Amendment”). The purpose of this article is to familiarize affected parties as well as the public with the content of this Amendment, the history of the Act itself, its subsequent legal amendments during its effective period, and the changes introduced by the Amendment to the Act as of July 1, 2023. Equally important is providing information on the obligations that arise or are newly regulated for certain entities, particularly employers, in connection with the Act and its legal provisions.

History of the Act and Reasons for Adopting Subsequent Amendments

Prior to the adoption of the Act, the reporting of anti-social conduct was governed by Act No. 307/2014 Coll. on Certain Measures Related to the Reporting of Anti-Social Conduct and on Amendments to Certain Acts, which took effect on June 1, 2014. It was considered a tool for the legal protection of whistleblowers against actions by an employer or its management aimed at “punishing” the whistleblower. This Act regulated certain institutions, as we know them today (albeit in an amended form), namely the protection of whistleblowers in criminal proceedings, in proceedings concerning administrative offenses, when reporting serious anti-social activities, whistleblower compensation, the suspension of the effectiveness of labor law measures directed against the whistleblower by the Labor Inspectorate (the Office for the Protection of Whistleblowers had not yet been established), and others. According to the legislature, this law did not gain widespread public awareness and was therefore not utilized by the public.

For these reasons, it was replaced by the 2019 Act, which established the Office for the Protection of Whistleblowers of Anti-Social Activity, which assumed the powers of the labor inspectorates under the original legislation, defined many additional powers for it, and regulated the institutions for the protection of whistleblowers.

The main purpose of adopting the Amendment was, in particular, the transposition of Directive (EU) 2019/1937 of the European Parliament and of the Council of 23 October 2019 on the protection of persons who report breaches of Union law (OJ L 305, Nov. 26, 2019), as amended. As the legislator also stated in the explanatory memorandum to the Amendment, the Directive had not been sufficiently, fully, and correctly transposed into Slovak national law; consequently, the Slovak Republic faced the risk of failing to fulfill its obligations under the Treaty of Accession of the Slovak Republic to the European Union by failing to meet the deadline set for the transposition of this Directive. The 2023 amendment entered into force on July 1, 2023; provisions concerning internal reporting systems and sanctions will take effect on September 1, 2023 (due to a legislative gap, as the proposer considers it appropriate to provide a sufficiently long period for those subject to the law to familiarize themselves with the new regulations).

However, the purpose of adopting the Amendment was also to ensure the extension of protection to persons reporting violations of Union law, the extension of protection to a person who, in cases defined by law, disclosed information about anti-social activity, the extension of protection to a person who filed a report anonymously and whose identity was subsequently revealed, introducing a full obligation to appoint an internal responsible person upon meeting the criteria set forth in the law, while simultaneously narrowing the powers of an external responsible person when reviewing reports; expanding the obligations of employers; expanding the obligations of the Office; defining the scope of mandatory information that competent public authorities are required to disclose; expanding the duty of confidentiality, and increasing the rates of fines.

Office for the Protection of Whistleblowers

The Office for the Protection of Whistleblowers of Anti-Social Activity, abbreviated as the Office for the Protection of Whistleblowers (hereinafter also referred to as the “Office”) as of July 1, 2023, was established by a law that took effect on March 1, 2019. However, the Office itself did not begin operations until September 2, 2021, as it was initially necessary to establish its organizational structure, secure a headquarters for the Office, and equip it with basic infrastructure and facilities.

Under the Act, the Office is an independent state administration body with nationwide jurisdiction, whose primary mandate is to protect the rights and legitimate interests of whistleblowers when reporting anti-social activities. The Office is a budgetary organization; its approved budget may be reduced during the calendar year only by the National Council of the Slovak Republic. The Office is headquartered at Námestie slobody 29 in Bratislava and, in order to fulfill its tasks, may establish and dissolve branch offices outside its headquarters and determine the territorial scope of their jurisdiction.

For the purposes of this article, the Office’s primary purpose can be defined as providing protection to whistleblowers who wish to report misconduct they have encountered in the course of their work (e.g., reporting corruption, fraud, or other criminal or administrative offenses) against potential reprisals which could be inflicted upon these individuals within the context of their employment—such as reassignment to a different position, changes to their job duties, the withdrawal of various benefits (e.g., a company computer or phone), and ultimately, for example, termination—as well as against any other forms of intimidation or discrimination.

The Office, pursuant to the Act

• primarily decides on matters concerning the protection of whistleblowers when reporting serious anti-social activities and on matters concerning the suspension of the effectiveness of labor-law actions (preventive and subsequent protection against any negative labor-law actions by the employer)
• performs supervisory functions—it monitors the application of the Act (in accordance with the rules of supervisory activities under Act No. 10/1996 Coll. on Supervision in Public Administration), monitors compliance with provisions on the provision and exercise of protection, monitors how the employer treated the whistleblower after the report was filed, and also monitors compliance with provisions on the internal system for reviewing reports
• notifies the competent authorities of any suspicion of retaliation against an employee in connection with a report of anti-social activity,
• provides advice to employers on the development of internal regulations and mechanisms for their enforcement, issues expert opinions and methodological guidelines on matters of whistleblower protection,
• receives reports of corruption, fraud, serious violations of the law, or other unfair practices that impact the public interest,
• last but not least, it cooperates with the Slovak National Center for Human Rights and non-governmental organizations on matters of whistleblower protection, as well as with similar institutions and organizations in the European Union and other countries.

The Office is a relatively “small” agency with a simple organizational structure headed by the Office Chair, who is responsible for the Office’s activities. The Chairperson of the Office is elected and dismissed by the National Council of the Slovak Republic from among candidates nominated by the government—among other requirements, the candidate must demonstrate through their past conduct in personal, public, and professional life that they will perform their duties properly, honestly, and responsibly.

The Office itself considers the most significant changes adopted under the Amendment to be the expansion of the definition of a whistleblower (which now includes not only whistleblowers in an employment relationship but also those in other similar relationships—e.g., a member of a statutory body of a legal entity, a volunteer, etc.), the expansion of the scope of criminal offenses considered serious anti-social conduct, the possibility to report facts concerning trade secrets, an increase in penalties from €2,000 to €6,000, introduction of a fine of up to €100,000 for the employer, explicit designation of external channels—authorities competent to receive reports (the Office, the Public Prosecutor’s Office, and administrative authorities), definition of retaliatory measures that the employer may take.

Subject matter of the Act – who is a whistleblower and how are they protected

The Act establishes the basic legal and institutional conditions for the protection of natural persons in an employment relationship (and, as of July 1, 2023, in other similar relationships) in connection with the reporting of criminal activity or other anti-social conduct.

The Act protects the whistleblower, defined as a natural person who, in good faith, makes a report to the competent authority, agency, or employer; a close relative of the whistleblower who is in an employment relationship with the same employer as the whistleblower is also considered a whistleblower, to an employer who is a dependent entity in relation to the whistleblower’s employer or to an employer established or set up by the whistleblower’s employer.

However, as of July 1, 2023, a new, expanded definition applies, stipulating that a whistleblower is any natural person who, in good faith, makes a report to the authority competent to receive the report or to the employer. A natural person is also considered a whistleblower if, in good faith:

a) they make a report and their employment relationship or other similar relationship has ended, provided they learned of the information regarding anti-social activity during the term of that employment relationship or other similar relationship,

b) makes a report and their employment relationship or other similar relationship has not yet been established, provided they learned of the information regarding anti-social activity during a selection process or within the framework of pre-contractual relationships,

c) made a report anonymously and their identity was revealed,

d) disclosed information regarding anti-social activity, which they learned during the selection process or within the framework of pre-contractual relations and their employment relationship or other similar relationship has not yet been established, or during the term of the employment relationship or other similar relationship, or after the termination of the employment relationship or other similar relationship, on the grounds that

- the employee made a report through the internal reporting system and was not informed of the outcome of the investigation, or appropriate measures were not taken, and subsequently made such a report to the competent authority and was not informed within a reasonable time of the status of the investigation or the outcome of the investigation,

- she filed a report with the competent authority and was not informed of the status of the investigation or the outcome of the investigation within a reasonable time,

- there is a reasonable concern that the anti-social activity may pose an immediate or obvious threat to the public interest, or

- there is a reasonable concern that, if a report were made to the competent authority, the whistleblower would face reprisals, or, given the specific circumstances of the case, there is a risk that the competent authorities will not ensure an impartial and independent investigation of the facts stated in the report,

Under the Act, a whistleblower is subsequently protected in criminal proceedings, in proceedings concerning administrative offenses, and when reporting serious anti-social conduct (against an employer).

How a whistleblower should proceed

If a whistleblower suspects anti-social activity or even serious anti-social activity, they may contact their employer or the authority competent to receive the report - An office, prosecutor’s office, or administrative authority competent to handle administrative offenses (or the relevant institution, body, office, or agency of the European Union).

Every natural person is authorized under the law (effective July 1, 2023) to make:

a) a report, i.e., to disclose facts that the natural person has learned in connection with an employment relationship or other similar relationship and that relate to anti-social activity

b) a qualified report, i.e., a report that may contribute or has contributed to clarifying serious anti-social activity or to identifying or convicting its perpetrator

The whistleblower may submit their report to the employer if they trust the employer (according to the Office, this option is faster and more effective). Under the internal system for reviewing reports effective July 1, 2023, an employer with at least 50 employees and an employer that is a public authority employing at least 5 employees, is required to designate an organizational unit or a person (hereinafter referred to as the “responsible person”) to perform the employer’s duties under the Act. The employer is required to make information about the internal system for reviewing reports available in a concise, understandable, clearly formulated, and easily accessible form. The employer is required to issue an internal regulation specifying the details regarding the submission of reports, the investigation of reports, and the responsibilities of the person in charge during the investigation of reports, maintaining confidentiality regarding the whistleblower’s identity, recording reports, informing the whistleblower of the outcome of the investigation of their report, and processing the personal data provided in the report.

However, if the whistleblower is concerned that the report might not be objectively investigated, they may submit the report to the Office—via an online form, the toll-free hotline at 0800 221 213, or in person at the Office’s reception desk.

In this context, it is essential to emphasize that protection applies not only to the whistleblower themselves but also to other individuals who may be affected by the report. Effective July 1, 2023, no one may threaten or take retaliatory measures against a whistleblower or a person close to the whistleblower, a natural person—an entrepreneur—or a legal entity controlled by the whistleblower, in which the whistleblower holds an interest, in which the whistleblower serves as a member of a governing body, or for which the whistleblower performs work, a natural person—entrepreneur or legal entity that controls a legal entity in which the whistleblower has a stake or in which the whistleblower serves as a member of a body of the legal entity, a person who provided assistance to the whistleblower in connection with the report, and the responsible person or a person who participates in the performance of the duties of the responsible person.

The authority to monitor compliance with the provisions on the provision and exercise of protection under the Act, as well as the manner in which the employer or the person concerned treated the whistleblower following the submission of the report, and the authority to monitor compliance with the provisions on the internal system for reviewing reports, is entrusted to the Office. Furthermore, the Office is obligated to subsequently report to the relevant authorities (e.g., the Labor Inspectorate) any suspicions of retaliation against a whistleblower in connection with a report of anti-social activity.

Employers’ Obligations Under the Act

1. Obligation to Designate a Responsible Person

An employer with at least 50 employees, and an employer that is a public authority with at least 5 employees, are required to designate an organizational unit or a person to perform the employer’s duties under paragraphs 4 through 7 and Section 11(1) of the Act; based on a contract with the employer, a person who is not an employee may also serve as the responsible person. The responsible person must possess the professional qualifications required to perform the duties under the Act. In a municipality and in a higher territorial unit, the chief auditor is the responsible person.

The employer is required to enable the responsible person to perform their duties independently, and the responsible person is bound only by the instructions of the employer’s statutory body or the statutory body of the parent company, unless the statutory body or a member of the statutory body is the responsible person.

The responsible person may also perform other tasks and duties; the employer is required to ensure that none of these other tasks or duties lead to a conflict of interest. The employer may not penalize the responsible person for the performance of their duties; if the responsible person is an organizational unit, the employer may not penalize the employees assigned to that unit.

The employer is required to provide the responsible person with the necessary cooperation in the performance of their duties; in particular, the employer is required to provide them with sufficient resources necessary to perform these duties and access to personal data and documents. The employer is also required to ensure that the responsible person maintains their professional qualifications on an ongoing basis.

The identification of the responsible person and the methods for submitting reports must be published and made available to all employees in a customary and generally accessible manner, such that at least one method for submitting reports must be available 24/7. The employer is required to make information about the internal system for reviewing reports available in a concise, understandable, clearly worded, and easily accessible form; the employer is also required to facilitate the submission of reports.

2. Obligation to Receive and Investigate Every Report

Pursuant to paragraph 1, the employer is required to receive and investigate every report within 90 days of its receipt; this period may be extended by an additional 30 days, provided that the employer notifies the reporter of the extension and states the reasons for it. The referral of a matter for handling in accordance with the Criminal Procedure Code or special regulations shall also be considered an investigation of the report.

3. Obligation to Maintain Confidentiality

When investigating reports, the employer is obligated to maintain confidentiality regarding the identity of the whistleblower.

4. Obligation to issue an internal regulation – internal directive

The employer is obligated to issue an internal regulation specifying details regarding

• a) the submission of reports,
• b) the investigation of reports and the authority of the responsible person during the investigation of reports,
• c) maintaining confidentiality regarding the identity of the whistleblower,
• d) the recording of reports
• e) informing the reporter of the outcome of the investigation into their report,
• f) the processing of personal data contained in the report

The law firm Hronček & Partners, s. r. o. is ready to provide you with comprehensive legal advice and services regarding the obligations arising from the Act, particularly the obligations of the responsible person and related advisory services. We also specialize in drafting thorough internal guidelines in accordance with the Act, which we prepare with a personalized approach tailored to your needs.