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The protection of informants in the field of the Tax Agency

The protection of informants constitutes a new and innovative regulation in our legal system at the state level, establishing a regime that stands out and differentiates itself from the different reporting regimes previously established.

Directive (EU) 2019/1937 of 23 October on persons reporting infringements of Union law uses the terms “ whistleblower ” and “ complaint ” to refer to what is referred to in the English version as “whistleblower”. However, it is more consistent with this matter to use the terms “informant” or “whistleblower”, “information”, “communication” or “alert” and “information, communication or alert channels”.

The objective pursued is to eradicate all infringing behavior from a preventive perspective, through the establishment of communication channels with guarantees of protection for those people who report committed or ongoing infringements. This gives rise to a general prevention effect in the face of immediate and imminent inspection, since any person can report, even anonymously, the commission of irregular actions through the channels created for this purpose.

To achieve this objective, it is essential to offer a protection framework to potential informants, who often refuse to report their concerns or suspicions, for fear of reprisals.

The existence of reprisals and their deterrent effect has led to full awareness, at both European Union and international level, of the importance of providing balanced and, above all, effective protection to informants.

This is a basic condition for the eradication of illicit practices and corruption. The aim is to achieve the public interest and satisfy the general interest, introducing a new mechanism that facilitates the elimination of illegal conduct that entails obvious harm to society.

Hence, we speak of “informants”, and the mental framework introduced is that of satisfaction of the public interest. Therefore, we are not talking about “accusation” or “informers”, which are accompanied by a pejorative nuance, but rather about informants who are provides a framework of protection, accompanied as a counterpart by adequate guarantees in favour of the people about whom information is provided, who fully enjoy the presumption of innocence and all the defense mechanisms recognized by the law. In short, it is about promoting civic actions by warning the competent authorities of the existence of illicit, irregular or corrupt practices.

As a notable historical background, the United States has been a pioneer in this matter, and in 1988 it enacted its Whistleblower Protection Law (Whistleblower Protection Act). In general, the doctrine has always highlighted in a very positive way the proliferation of norms on this matter that has occurred in the United States in the last two decades, and that not only has a legal dimension, but also profound moral, philosophical and social. Some scandals from the early 2000s in the United States are well-known, such as the Worldcom, FBI and Enron cases. Likewise, in the EU we find scandals whose knowledge came about through informants, such as the VW emissions or Dieselgate, as well as the Luxleaks affair.

The new whistleblower protection statute therefore hinges on the following fundamental aspects:

  1. Preservation of the identity of the informant and the affected persons through appropriate technical and administrative measures to guarantee the confidentiality of the data.
  2. Measures to support the informant, consisting of the information and advice necessary by the Administration, and, where appropriate, through the necessary legal assistance in judicial processes derived from or related to the communication made.
  3. Prohibition of retaliation, including threats of retaliation and attempted retaliation.
  4. Effective protection of the informant against retaliation through the adoption of administrative measures that counteract retaliation that has been effectively verified, as well as the establishment of a sanctioning regime for this purpose.

Directive (EU) 2019/1937, of October 23, had a transposition deadline of December 17, 2021. The expiration of the term determined a series of implications related to its direct vertical upward effectiveness, so that individuals could invoke its application.

The urgency of the transposition deadlines determined the speed with which the promulgation of the Whistleblower Protection Law had to be carried out and the establishment of the means necessary for the effectiveness of the contemplated measures; However, due to its legislative processing, the promulgation did not arrive.

In view of this, the Tax Agency, even without the promulgation of the transposition law, was already a pioneer in the implementation of the system, for which purpose it approved Instruction 1/2022, of January 25, 2022, of the General Directorate of the State Tax Administration Agency, which created a channel for complaints about conduct of its staff.

With the system already active within the Tax Agency, finally, the promulgation of Law 2/2023, of February 20, regulating the protection of people who report regulatory infractions and the fight against corruption, determined the adaptation of the internal system, which was carried out through the Resolution of June 12, 2023, of the general directorate of the Tax Agency, by which an internal information system is implemented in the State Tax Administration Agency, in compliance with the provisions of law 2/2023, of February 20. This internal information system adapts the structure of the channel to the specificities finally adopted in the current Law.

As issues of relevant interest related to the channel, we can highlight the following:

  • An easy-access web form has been incorporated into the corporate website that allows the presentation of telematic communications with a guarantee of confidentiality.
  • Presentation and processing of anonymous communications is permitted without the need to communicate the identity of the informant.
  • The responsibility for knowledge and management of communications corresponds to the Internal Audit Service — SAI —. It is governed by an exquisite guarantee of confidentiality. Access to communications is very restricted to a small group of people who are responsible for carrying out the investigation with maximum secrecy. It has been absolutely prioritized, even over other considerations, to take extreme precautions and guarantees aimed at protecting the confidentiality of the informant, who, on the other hand, may be anonymous.
  • The provision is contained regarding the possibility that the informant requests to hold a face-to-face meeting to make the communication, in which case it must be held within a maximum period of seven days from the formulation of the request.
  • The preservation of the optional nature is guaranteed, allowing the informant to choose between the internal and external channel, since the preference of the internal channel is not established with a mandatory nature, and thus the informant can choose to communicate the information in the external channel whose management will correspond to the Independent Whistleblower Protection Authority.

Finally, it is worth mentioning, regarding the beginning of its journey, that a part of the communications made refer to unrelated objects, such as tax complaints presented through this channel that must be reclassified and redirected to the corresponding channel. In the communications of the information channel, it has begun to operate in a very satisfactory manner, which demonstrates the convenience of its existence, although the low number of complaints received responds to what is expected and to be expected in an organization like the Tax Agency. , in which its public employees demonstrate their vocation for public service with the utmost rigor every day.