The protection of whistleblowers constitutes a new and innovative regulation in our legal system at the state level, establishing a regime that stands out and differs from the various 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 offending behavior from a preventive perspective, through the establishment of communication channels with guarantees of protection for those people who report violations committed or in progress. This creates a general preventive effect in the event of an immediate and imminent audit, since anyone can report, even anonymously, the commission of irregular actions through the channels created for this purpose.

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

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

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 by introducing a new mechanism that facilitates the elimination of unlawful conduct that causes 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 noteworthy historical background, the United States has been a pioneer in this matter, and already in 1988 it enacted its Whistleblower Protection Act (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 which not only has a legal dimension, but also profound moral, philosophical and social implications. 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 is therefore based on the following fundamental aspects:

1. Preservation of the identity of the informant and the persons affected by means of appropriate technical and administrative measures to guarantee the confidentiality of the data.
2. Support measures for the informant, consisting of the information and advice required by the Administration, and where appropriate, through the necessary legal assistance in judicial proceedings arising from or related to the communication made.
3. Prohibition of retaliation, including threats of retaliation and attempts at retaliation.
4. Effective protection of whistleblowers against reprisals by adopting administrative measures to counteract any reprisals that have been effectively verified, as well as establishing 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 upward vertical effectiveness, so that individuals could invoke its application.

The urgency of the transposition deadlines determined the speed with which the promulgation of the Law on the protection of whistleblowers and the establishment of the necessary means for the effectiveness of the measures contemplated had to be carried out; 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, by which a channel for reporting the conduct of its staff was created.

The system is now active within the Tax Agency, finally, the promulgation of Law 2/2023, of February 20, regulating the protection of persons who report regulatory violations 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.

Among the issues of relevant interest regarding the channel, we can highlight the following:

• An easily accessible web form has been incorporated into the corporate website that allows the submission of electronic communications with a guarantee of confidentiality.
• Anonymous communications may be submitted and processed without the need to disclose the identity of the informant.
• The responsibility for the 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 the utmost secrecy. Absolute priority has been given, even over other considerations, to taking extreme precautions and guarantees aimed at protecting the confidentiality of the informant, who, on the other hand, may be anonymous.
• The provision is made regarding the possibility for the informant to request 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 optional nature of the information is guaranteed, allowing the informant to choose between the internal and external channels, since the preference for the internal channel is not established as mandatory, and thus the informant can choose to communicate the information in the external channel, the management of which will be the responsibility of the Independent Authority for the Protection of Informants.

Finally, it is worth mentioning, regarding the beginning of its journey, that some of the communications made refer to unrelated objects, such as tax claims submitted 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 small number of complaints received responds to what is expected and expected in an organization such as the Tax Agency, in which its public employees demonstrate day after day their vocation for public service with the utmost rigor.