In the number 25 of 2019 of the Journal of Securities Market Law (Revista de Derecho del Mercado de Valores, RMV) we have published a study on the “Protection of whistleblowers` violations of the regulation of financial services in the European Union. Panoramic analysis of Directive (EU) 2019/1937”.
Abstract: The study offers a panoramic analysis of Directive (EU) 2019/1937 starting with the general aspects of its justification, its material and personal scope of application and its form of application. Then, the study’s focus is on the special importance of whistleblowers («whistleblowers») in the financial market, exposing, in particular, the rules affected in the banking market, in the market of financial instruments, in the insurance market and the norms established within the financial markets in general (transversal regulations). Later, it is analyzed how the whistleblower protection system operates («whistleblowers») exposing the general conditions of protection of the whistleblowers, the types of whistleblowers and the protection measures. In the final part, there is an analysis of the system for whistleblowers` protection in the current Spanish Securities Market Law. (TRLMV). And the study ends with conclusions about the process of transposition of Directive (EU) 2019/1937 into Spanish Law no later than December 17, 2021.
1st. We have verified that, in the current regulation of our financial system, there is a whistleblowers protection system in the Spanish Securities Market Law (TRLMV) that does not fully conform to the harmonizing mandates of Directive (EU) 2019/1937.
2nd. Therefore, not later than December 17, 2021, our legislator must enforce the legal, regulatory and administrative provisions necessary to comply with the provisions of the Directive in the three typical sectors of the financial market, namely: in the banking market, in the market of financial instruments and in the market of insurance and pension plans and funds.
3rd. The foregoing will require the direct modification of regulatory norms of the three mentioned sectors of the financial market as well as collaterally affected norms, such as labor standards that guarantee the whistleblowers´s indemnity.
4th. The regulatory process of adapting Spanish Law to Directive (EU) 2019/1937 will raise sensitive problems both in formal guarantees of administrative procedures for reporting and protecting whistleblowers and in preventing the fraudulent use by whistleblowers of their immunity and anonymity of alleged infractions as instruments of unfair competition between companies (for example, it is not necessary to make a great effort of imagination to appreciate the defensive power of this type of complaints against hostile takeover bids)