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Internal information channel

Law 2/2023, 20th of February, regulatory of the protection of the people that informs about normative infractions and the fight against corruption.

The present internal information channel is designed under and with full follow up of the requirements established at the Law 2/2023, singularly taking into consideration the prospects established on the articles 10 (regulated entities in the private sector) 2 (material scope of application), 3 (personal scope of application) and the Second Transitory Provision (Maximum deadline for the establishment of Internal Information and adaptation Systems of the already existent ones).

The purpose of the Law, following the spirit of the Directive, is not other than to protect the people that inform about certain events and behaviors that can lead to infractions or illegal actions of the legal order (on the terms that will be described at the material scope), protection that as well is proclaimed as an essential element for the detection and prevention of the behaviors. By virtue of it, the informants without granted protection by the Law, in a lot of cases, will not communicate the information under fear of reprisals and, also, the behavior said people was trying to denounce will not be detected.

Therefore, the rule pursues protecting the people that in a work or professional context detect serious or very serious criminal or administrative infractions and that they communicate them by mechanisms regulated on the said rule, expanding for it the material scope of the Directive to the infractions of national order, but limited to serious or very serious criminal and administrative ones to allow that both the internal information channels and the external ones can concentrate their investigative activity on the violations that they consider affect on a major level to society at large. This protection is extended advocating retroactivity of the protective measures against the reprisals to the communications that have taken place from the 16th of December2019 (date of entry into force of the Whistleblowing Directive).

This protection is defined in the very Explanatory Memorandum of the Law being configurated as the central axis on which all the regulation established at the Law turns, as well as the need to give security to the informants, security without which the informant would not, in many cases, communicate the events or behaviors in which they are supposed to intervene. It is worth transcribing: “The good faith, the honest conscience that had happened or can happen harmful and serious events constitutes an indispensable requirement for the informant’s protection. That good faith is the expression of their civic behavior and that is opposed to other actions that, on the contrary, results indispensable excluding from the protection, those as the remission of false or misrepresented information, as well as those that have been obtained illegally.” The configuration of the Internal information System must meet certain requirements, among others, the affordable use, the confidentiality guarantees, the correct practice of the follow up, investigation and protection of the informant, requirements of which a specific reference in sections will be made that are developed or can have singular incidents.

The object and nature of the internal information system, following the spirit of the Directive, pursues dealing swiftly with any sign of serious or very serious criminal or administrative infraction against general interest, searching the eradication and/or prevention of any fraud, getting ahead exponentially with the knowledge that someone is committing irregularities and has de advantage that it can be stopped as swiftly as possible, avoiding major damages that would exist on a late detection.

Besides, the Law does not limit the information channels to which this (internal) regulation is an object, but it complements the alternative mechanisms like the public revelation or the external systems. This external channel, assigned to the Independent Authority of Informant Protection, is not compatible with the internal channel implemented by this entity, for this, although being conformed as preferent, it does not mean it exclusive of the external channel, in this way they can be compatible and, also, attend only and exclusively to the mentioned external channel.

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