Académique Documents
Professionnel Documents
Culture Documents
COUNTERING
CORRUPTION AND FRAUD
SYSTEM-BASED PROTECTION
OF WHISTLEBLOWERS
COUNTERING CORRUPTION AND FRAUD COUNTERING CORRUPTION AND FRAUD
COMPANY ESTIMATED LOSSES US$ DATE SCANDAL IMPACT COMPANY ESTIMATED LOSSES US$ DATE SCANDAL IMPACT
WORLDCOM 107 billion 2002 Accounting fraud The biggest bankruptcy INTERNATIONAL 9 billion 2012 Rigging of the LIBOR
interest rate benchmark
Fines and prosecution
charges, public loss of
in US corporate history;
20,000 workers
BANKS (in fines)
confidence in the financial
lost their jobs. (10) sector may drive down
the sector’s profits for years.
VOLKSWAGEN 87 billion 2015 11 million cars worldwide
fitted with a so-called
Impact of corruption scandal
still unfolding significant
„defeat device” that ran damage to Volkswagen’s
the car below normal brand and the wider German
power and performance manufacturing sector and AIG 3.6 billion 2005 Accounting fraud Largest quarterly loss
in 2008, bailed out
when an emission the automotive industry.
test was occurring by US taxpayer.
• Loss of potential business opportunities, THREE MOST CHALLENGING INTERNAL ANTI-CORRUTION AND COMPLIANCE ISSUES
markets, partners, customers;
71.6% 1
2
• The burden of hefty fines;
15.7 57.6% 3
16.5 Substantially
reduce corruption
and briber y in all their forms
8.8 Protect labor rights and promote
safe and secure working
environment s for all workers, including
Source: A 2014/2015 CONTROL RISKS survey of over 600 companies, sustainabledevelopment.un.org
1 6 . 5.2 Proportion of
businesses
and those in precarious employment In addition to stringent national legislation, reducing the appeal of corrupt practices requires greater transparency of
financial transactions as well as standardized internal and external control procedures. This applies both to the ‘demand-
that had at least one contact with
a public official and that paid a bribe
to a public official, or were asked
8.8.2 Increase in national compliance
of labor right s (freedom of
association and collective bargaining) based on
side’ (primarily involving – though not exclusively – public officials) and the ‘supply-side’ (representatives of corporate
interests).
for a bribe by those public officials International Labor Organization (ILO) textual sources
during the previous 12 months and national legislation, by sex and migrant status
Source: sustainabledevelopment.un.org
LONG TERM
in corruption in their daily business for membership
INITIATIVE
Public commitment leads to enforement Adoption of membership requirements
SUPPLY- SIDE ANTI-CORRUPTION TOOLS: by honor checked by external audits
• Incentive systems (that take into account Industry self-regulation can also substitute lacking or faulty legislation or weak state institutions.
Industry-wide self-regulation can also curtail the ‘fare dodging’ practice of those process participants who seek to take
long-term factors designed to curtail advantage of other participants’ efforts towards greater transparency and clear rules of conduct without bearing the
the myopic pursuit of spoils by any costs involved or changing their own conduct.
means and at any cost). Public sector agencies may participate in the process as promoters
or as parties to such joint anti-corruption arrangements.
The role of third-party institutions, such as UN Global
A growing number of companies, governments and non-governmental organizations have Compact, can be the role of a process facilitator.
been exploring ways to further advance the effectiveness of anti-corruption programs within
businesses themselves. This means a greater significance and appreciation of the role of joint efforts. The idea Multinational enterprises (MNEs) have a special role to play in this regard. They operate in highly
is relatively straightforward: companies start working with competitors and other stakeholders to create the necessary diversified environments, while being morally obliged to improve the quality and correctness of business practices due
conditions to ensure fair competition in the market or in specific processes or area. Fair competition ensures that e.g. to practices prevailing in their home countries, organizational culture, global image, but are also better placed to run
transactions are decided on commonly agreed factors such as quality and price, rather than being skewed by bribing such programs driven by their market power. MNEs tend to enjoy greater financial, and often political, backing to perse-
and cheating. This process helps to create safe environments for good business practices. It minimizes vere through performance problems stemming from lost projects, unreasonable red tape, etc., that could be resolved
opportunities to operate outside the rule of law and levels the playing field for players irrespective of their size or by bribes.
location in the value chain.
Proactive approach Addressing challenges in such essential core areas necessitates the
effective management by companies misconduct detection procedures,
Taking a proactive approach requires a company to allocate some resources to moni- and performing due diligence on business partners and subcontractors.
tor a range of ambitious anti-corruption initiatives that may be used to start dialogue with However, it is a necessary way to mitigate risks or even losses arising
partners or stakeholders. Problems can be anticipated and opportunities can be seized by from unethical or criminal activities of individuals or companies. Pursued
engaging with stakeholders on anti-fraud and corruption issues. This builds mutual under- in a thought-out manner, it can also have a beneficial effect on the quality
standing between managers and investors, and lends credibility to board activities. of cooperation and attainability of business performance indicators also
in the long run. Respect for human rights declared by a vast majority
TO DO THIS, COMPANIES CAN USE AN ARRAY of companies is a pretext and prerequisite for taking measures of
OF COMMUNICATION TOOLS AND SOLUTIONS: strategic significance to a business, such as introducing ethical issues to
• website articles, press releases, publications for corporate strategy or ethical standards into daily business practices.
investors disseminated widely to reach all stakeholders; Source: Engaging on anti-bribery and corruption: a guide for investors and companies – UNPRI & UNGC 2016 Report
• an official letter from the board Dissemination and implementation of ethical standards and countering corruption within the
presenting its related strategy and its role business community and beyond is one of the biggest tasks for Global Compact in Poland.
in corporate governance processes; The effective implementation of the 10th Principle of UN Global Compact is part of the concepts forming two programs
currently underway, “Countering the Shadow Economy in Poland” and “Standard of Ethics in Poland”. Each focuses
• roadshows and ‘investor days’ to broadly on curbing negative or outright criminal phenomena in the functioning of business and institutions, by analyzing and
communicate strategies, with a focus developing tools detecting and preventing corporate fraud, bribery, corruption, position abuses, tax evasion, etc. The
on present and future investors; overriding goal is to develop universal practices, compliance and due diligence procedures, ethical standards and orga-
nizational culture, which will effectively prevent all the negative phenomena mentioned above in business practice and
• daily communication in response to human rights, or forming barriers to sustainable development.
queries, concerns or even allegations from
investors or other stakeholders; That is why in 2016 the Minimum Standard of the Ethical Program was developed, an outcome of a long effort of the
Coalition of Ethics Advocates and individual Working Groups. It is mainly a tool that supports self-assessment of compa-
nies and institutions as well as internal development of necessary conditions for the functioning of core components of
Policies and procedures Proactive Reactive the ethical system. In 2017, we started work on more detailed issues, elaborating on the Minimum Standard, concerning
anti-corruption measures and supporting whistleblower protection.
Responses
Top Commitment Communication Financial Risk Due Auditing
Reporting and This year, intensive measures will be taken to further supranational cooperation with countries in our region.
and policy and training controls assessment diligence and monitoring
investigations
Through joint debates, publications and analyses, we want to present effective policies and share experiences of their
implementation.
Source: LINKING HUMAN RIGHTS AND ANTI-CORRUPTION COMPLIANCE. A Good Practice Note Endorsed By
The United Nations Global Compact Human Rights And Labor Working Group. December 2016
Based on publications by UNGC and partners: Fighting Corruption in the supply chain: a guide for customers and suppliers, UNGC 2016; Engaging
on anti-bribery and corruption. A guide for investors and companies, UNGC & PRI 2016; Linking Human Rights and Anti-Corruption Compliance,
Taking a proactive approach requires a company to allocate some resources to monitor a range of ambitious UNGC Human Rights and Labor Working Group, 2016; A Practical Guide for Collective Action Against Corruption, UNGC 2016
anti-corruption initiatives that may be used to start dialogue with partners or stakeholders.
Łukasz Kolano
Global Compact Network Poland
CORRUPTION
public interest in Polish national law. To put is as this relationship seems quite
concisely as possible, the public interest is easy to identify, it becomes
a generalized objective of aspirations much more complicated in
I
n Poland, there is an extensive regulatory the practical implementation of such law may protection cannot be granted
framework supporting the prevention and be riddled with. Therefore, it is worth noting despite the act of corruption
countering of corruption, including laws a few challenges facing the addressees of the disclosed by the whistleblower.
and regulations in line with international Whistleblowers Act. The point of reference
standards. However, there is still no comprehen- is the set of assumptions to the Whistleblowers The above example brings to mind a number
sive legislative arrangement in place regulating Bill prepared by an expert group. of questions. For instance, what consequ-
the status of people who report corruption and ences may arise for the whistleblower
other abuses in the workplace, which would The first noteworthy challenge is to overcome who has reported corruption, but the
also provide effective legal protection for such difficulties that can arise between the scope of condition of a relationship existing
persons. The task facing the legislature is not the Act ratione personae and one of the pre- between the disclosure and the public
simple, for reasons such as the problems that requisites for the provision of protection to interest has not been fulfilled, and
therefore they cannot be afforded a relationship between corruption and the public
protection? How to make potential whistle- interest, and for whistleblowing where no such
blowers aware of the legal risks associated with relationship exists.
what is commonly called “blowing the whistle”?
How to prepare for reporting them? How is a whi- As can be seen, this issue alone can pose many
stleblower to collect evidence of a disclosed act practical problems for whistleblowers, but also
of corruption? Whose advice can or should a whi- for public authorities and employers, especially
stleblower seek? How to ensure confidentiality private ones. Unfortunately, more challenges
of advice and whistleblowing report? What is the Is the adoption of such may yet emerge, related to the entry into force
role of compliance officers, ethics advocates, a solution desirable if the of the Whistleblowers Act. Prima facie, it seems
etc.? proposed objective of the Act that the main addresses of the Act are whistle-
is to provide a comprehensive blowers, as it is them who are to be afforded
There are more doubts about the prerequisite and consistent regulatory protection in exchange for whistleblowing.
which provides that whistleblowers are eligible framework for the disclosure and other abuse is effective and efficient. What
for protection if there is a relationship between of abuse in public and private However, the role that public seems to be key to the achievement of this
the disclosure of corruption or other abuse and sector environments? authorities and employers have objective is that the addressees of the future
the public interest. The introduction of this pre- Are whistleblowers employed to play is no less important, Act should be simply aware of its provisions and
requisite may significantly limit the scope of in the private sector who and perhaps even more crucial. prepared to apply them, before anyone blows the
potential whistleblowing reports in the priva- report on corruption unrelated It is largely up to the former whistle.
te sector by excluding reports unrelated to the to the public interest how efficiently information will
public interest. Answers should be sought to fur- intentionally deprived of the be verified and whistleblowers Robert Lizak, PhD
Central Anti-Corruption Bureau
ther questions. right to seek protection? will be afforded protection.
Will an alternative solution For their part, employers have
be proposed for this their own challenge which is
whistleblower group? to develop an algorithm that
would, on the one hand, protect
Let us refer again to the example of private employers’ interests and,
bank employee. Let us assume, hypothetically, on the other hand, prevent
that no protection can be provided in the situ- employers from retaliating
ation described despite the act of corruption or covering up a case.
disclosed by the whistleblower. In practice, this
means that many years may pass before the To sum up, the adoption of the Whistleblower
court decides that the relationship does not Act is unquestionably necessary. The whistle-
exist. For certain, during that time, all the parties blower institution is an instrument for
protecting their interests, i.e. public authorities, the pursuit of integrity in public and
employers and whistleblowers, will bear financial, private life by eliminating unlawful
moral, image-related, professional, and other activities. The introduction of the whistle-
costs. In the end, it may turn out that the ratio blowing system is not easy but not impossible.
legis of the Act has not been achieved. Perhaps Hopefully, it will be possible to reconcile the
it is worth considering the adoption of different interests of all the addressees of the Act so
procedures for whistleblowing representing that the system of whistleblowing on corruption
- A NATIONAL AND INTERNATIONAL capturing (private firms, political leaders, or PROMOTING OR BLOCKING NEW ACTS
OR AMENDMENTS TO EXISTING ACTS
PERSPECTIVE.
narrow interest groups). All forms of state cap-
ture are directed toward extracting rents from • Malpractice in public procurement
the state for a narrow range of individuals, firms, (government contracts)
Despite many years’ fight and efforts of many international or sectors through distorting the basic legal and
organizations such as the UN, OECD, European Commission, regulatory framework, with potentially enormo-
us losses for the society at large. These practices
• Manipulation of privatization
GRECO, World Bank, International Monetary Fund, thrive where economic power is highly concen- • Interference in the award of concessions,
and numerous civic society organizations, corruption trated, countervailing social interests are weak, licenses and tax exemptions
continues to present a serious problem the world over. and the formal channels of political influence and
interest intermediation are underdeveloped. • Conflict of interest in appointments
As reported by Transparency International, to boards of State-owned enterprises and
about 68% of states around the world have The World Bank also notes the corruptive consequent links with contracts issued by
serious problems with this phenomenon. phenomenon of “regulatory capture” where a these enterprises
regulatory body is captured by groups of inte-
T
rest. This phenomenon is described in depth • Improper pressure on Customs
he adverse impact of corruption on maintain or consolidate power even if driven by by Łukasz Afeltowicz in his 2010 article “State enforcement
social and economic development has high ideals. capture, social networks and sociological ima-
already become obvious and does not gination: a critical analysis of the state capture • A typical example would be the creation by
have to be proved, while until the early In its 1999 report “Corruption in Poland”, the concept” a Ministry of an agency that would extend
1990s the term had not been used as one refer- World Bankdefines corruption as the contracts to companies that would in turn
ring to a major problem by many institutions, abuse of public office for private gain. Specific examples of state capture are given in funnel money back to the relevant Minister,
including the World Bank. While this definition does not include wholly the above-mentioned 1999 World Bank Report officials, or political party
In mid-1980s, this approach changed, largely private sector corruption, it does include the on Poland:
on the initiative of the then President of the interface between private and public sectors • Unconstrained lobbying
World Bank, James Wolfensohn, and pressure without which much private sector corruption
from civic society organizations. This is also when could not occur. Also strictly connected with cor- • Nepotism in public sector appointments,
corruption phenomena started to be studies in a ruption are shadow economy phenomena which and trading favors generally throughout the
systematic way. AT Kearny estimates at about 2 trillion Euros in arena of public decision making. This ten
Europe alone. dency is exacerbated by the practice
One of the definitions of corruption describes of making political appointments down to
it as the abuse of authority, usually for private Another significant area of corruption which medium levels in the administration.
purposes, or for the benefit of the social group is often omitted in research is state capture. The
with which the corrupt person is connected. term was defined by the World Bank in its 2000 • Conflict of interest and political party
Corruption can be motivated by greed, desire to report “Anticorruption in Transition”. financing
WHISTLEBLOWERS IN POLAND
– CURRENT SITUATION AND APART FROM THE LABOR CODE, FRAGMENTARY PROVISIONS
ON THE ISSUE OF WHISTLEBLOWING AND PROTECTION OF
T
to disclose information that an anonymous reporting to a as a witness in cases and method of
he issue of reporting irregularities at awareness, which can lead to high tolerance for
1
A. Kobylińska, M. Folta, Sygnaliści – audit is carried out in response designated management involving a criminal anonymization and the
ludzie, którzy nie potrafią milczeć.
work through whistleblowing is not irregularities at work and a passive attitude of Doświadczenia osób ujawniających nie- to a complaint unless the board member or, in specific offence or criminal questioning process
prawidłowości w instytucjach i firmach
comprehensively regulated by the their witnesses. This phenomenon has a signifi- party filing the complaint cases, to the supervisory board fiscal offence
w Polsce [Whistleblowers – people
Polish legal system. The provisions cant corruption potential, which adversely affects who can’t keep quiet. Experience of has given written consent of the bank, any breaches of committed in an
those who disclose irregularities in
currently in force are fragmented and fragmen- the competitiveness of the Polish economy. institutions and companies in Poland],
thereto (Article 44(3)), the law as well as procedures organized group
tary. They are scattered among various legal Institute of Public Affairs, Warsaw 2015. and standards of ethics in force or association
2
An employee can also invoke the pro-
acts, and do not provide effective protection In the current legal situation, the visions of the Labor Code that prohibit • labor inspector shall be at the bank (Article 9 (2a)),
to whistleblowers. Consequently, while whistle- obligation to blow the whistle, i.e. to mobbing (Article 943) or the provisions solely authorized to decide
on equal treatment in employment
blowing is a favorable phenomenon from the report irregularities found, is stipulated by Article (Article 183). However, studies of the whether or not to keep • The requirement to ensure
case law of labor courts show that
point of view of the public interest and employ- 304 § 1 of the Code of Criminal Procedure (the confidential circumstances that employees who report
the provisions usually fail to provide
ers’ interests, the disclosure of irregularities is a obligation of the public to report a suspicion proper protection to the whistleblowing that allow the identity of infringements are granted
employee (A. Wojciechowska-Nowak,
high-risk activity in Poland. According to a 2016 of an offense) and in Article 100 § 2 (4) of the Założenia do ustawy o ochronie osób the employee disclosing at least protection against
survey into the situation of persons who report Labor Code (the obligation to blow the whistle on sygnalizujących nieprawidłowości information on irregularities to repressive measures,
w środowisku zawodowym. Jak polski
on irregularities in institutions and enterprises irregularities in the workplace). However, these ustawodawca może czerpać z doświ- be established, including their discrimination or any kind of
in Poland, whistleblowers often face “negative obligations are currently not accompanied by adczeń państw obcych? [Assumptions personal details (Article 23 (2)) unfair treatment (Article 9 (2b))
to the Act on the Protection of
or even hostile reactions of their community” any special form of legal protection of whistle- Whistleblowers in a Professional
Environment. How can the Polish
and experience various forms of retaliation blowers. Under rules of general application, in
law-maker draw on the experience of
from employers, including “attempts to get rid principle, only persons in an employment rela- foreign states?], Warsaw 2012).
3
Cf. M. Raczkowski, Ekspertyza
of [them] from the organization, marginalize tionship, and the level of guarantees they are w sprawie ochrony osób sygnali-
[their] professional position by not giving them entitled varies depending on the basis of employ- zujących nieprawidłowości przed ON THE OTHER HAND, DUE TO THE ABSENCE OF A SPECIAL LEGAL PROTECTION REGIME FOR WHISTLEBLOWERS,
nadużyciami ze strony podmiotu
responsible tasks to perform (and, additionally, ment (higher for indefinite-term contracts of zatrudniającego [Expert opinion on the THE MAIN (BUT NOT ONLY) SOURCES OF LEGAL RISK ASSOCIATED WITH WHISTLEBLOWING ARE AS FOLLOWS:
blocking their access to information), various employment, lower for fixed-term contracts, protection of whistleblowers against • Provisions of the Civil Code governing liability for infringement of personal rights (Article 24),
abuse by the employer], Kielce 2009.
forms of mobbing and psychological pressure”. employment by appointment and nomination).
At the same time, “the majority of whistleblo- Protection is not available to persons who per- • Provisions of the Civil Code governing:
wers feel alone in their efforts, and some suffer form work under civil-law contracts and those in
a lack of knowledge and understanding of how service relationship. Legal protection of employ- • Criminal liability for slander (Article 212),
they should behave, what institutions they should ees is of a follow-up nature and it takes effect
turn to and whom they should ask for support”1. only in proceedings before the labor court in case • Criminal liability for the disclosure of secrets protected by law (Article 265-267),
A lack of a comprehensive regulation on whi- of notice of termination of the employment con-
stleblowing translates into a low level of public tract, termination of the employment contract • Liability for malicious or persistent violation of employee rights (Article 218).
THE ARRANGEMENTS IN FORCE IN POLAND ARE The implementation of the functions in question requires the adoption of appropriate
assumptions, including the outlining of the substantive and personal scope adequate
CONSIDERED TO BE INSUFFICIENT FROM THE POINT OF
to the specificities of whistleblowing. From the point of view of the aforementioned
VIEW OF INTERNATIONAL STANDARDS OF WHISTLEBLOWER objectives – above all, in order to ensure a balanced and rational protection of all
PROTECTION ARISING FROM SOURCES SUCH AS: crisscrossing interests – it seems appropriate to adopt the following solutions:
COUNCIL OF EUROPE PARLIAMENTARY ASSEMBLY RESOLUTION 1729 (2010)
– Protection of “whistle-blowers”
DEFINITION OF WHISTLEBLOWER
The personal scope of the future regulation should be determined by a definition of “whistleblower”, that is, a person
COUNCIL OF EUROPE PARLIAMENTARY ASSEMBLY RECOMMENDATION 1916 who has disclosed irregularities in the professional environment or who has assisted in disclosing irregularities by
(2010) – Protection of “whistle-blowers” another person by providing information about irregularities or by actively participating in the disclosure process.
RECOMMENDATION CM/REC (2014) OF THE COMMITTEE OF MINISTERS In order to ensure the completeness of regulation and effectiveness of proposed solutions, it is advisable to adopt the
ON THE PROTECTION OF WHISTLEBLOWERS broadest possible personal scope. This scope should cover all workers, regardless of the basis of employment. Therefore,
not only a person in an employment relationship in the strict sense can be a whistleblower, but also a person employed
REPORT OF THE UN SPECIAL RAPPORTEUR ON THE PROMOTION AND under a civil-law contract or providing services to a given entity - both in the private and in the public sector.
PROTECTION OF THE RIGHT TO FREEDOM OF OPINION AND EXPRESSION ON
THE PROTECTION OF SOURCES AND WHISTLEBLOWERS (document A/70/361) NATURE AND OBJECT OF WHISTLEBLOWING
Disclosure of irregularities (whistleblowing) means any transmission of information about an infringement or information
REPORT OF THE COUNCIL OF EUROPE PARLIAMENTARY ASSEMBLY justifying its suspicion made by a whistleblower within an organization (internal whistleblowing), or, in the absence of an
COMMITTEE ON LEGAL AFFAIRS AND HUMAN RIGHTS “THE PROTECTION OF appropriate internal reporting procedure or in the absence of response from the organization, to the competent external
WHISTLE-BLOWERS” authorities or entities (external whistleblowing).
Only the activities leading to the disclosure of irregularities in the professional environment, which are made in good faith
CASE LAW OF THE EUROPEAN COURT OF HUMAN RIGHTS and in the public interest, should be regarded as whistleblowing. No protection should be available to activities motivated
by desire for revenge or seeking to achieve private or financial gain. At the same time, whistleblowing should be based at
least on justified suspicion of irregularities, i.e., suspicion based on information in the whistleblower’s possession, which
4
Public Opinion Research Center (CBOS) survey commissioned by Stefan Batory Foundation: Heroes or informants? What Poles think about whistleblo-
wers at the workplace? Quantitative survey report, Warsaw 2012. objectively substantiates the irregularities reported. The requirement of good faith should be considered fulfilled if the
5
D. Głowacka, A. Ploszka, M. Sczaniecki, Wiem i powiem. Ochrona sygnalistów i dziennikarskich źródeł informacji [I know and I’ll tell. Protection of whi-
stleblowers and the journalist’s information sources], Warsaw 2016, p. 11.
whistleblower is sincerely convinced that the information is true.
6
Economic Crime Survey. Poland 2011. Cybercrime as a Growing Threat to Business, PwC 2011.
IT SEEMS THAT MAINLY THE FOLLOWING CATEGORIES SCOPE OF PROTECTION PROVIDED TO WHISTLEBLOWERS
OF INFRINGEMENTS CAN BE THE OBJECT OF WHISTLEBLOWING: From the point of view of the scope of protection provided to whistleblowers under this special regime, it is important to
• Violations of human rights that pose or can pose risks to life, health or personal freedom define precisely the areas of risk associated with their activities, in particular the statutory attempt to
capture the phenomenon of retaliation, the protection of whistleblowers’ anonymity and the burden of proof, and with
• Violations of labor rights, including mobbing and discrimination, and all forms regard to procedural risk – the establishment of a specific lex specialis in relation to the general rules of criminal and civil
of abuse of dependency in employee or service relationships liability of whistleblowers.
• Violations that pose or could pose a threat to public safety or the environment • Retaliation
• Corruptive activities, including active or passive bribery, fraud, counterfeiting, RETALIATION MEANS ANY ACTIVITIES THAT: .
deception, or false statements, etc. • Have been taken in connection with the employee’s whistleblowing, i.e.
there is a link between adverse consequences for the whistleblower and the
• Violations of public law obligations, including taxation fact that he has disclosed irregularities or assisted with their disclosure, and
• Activity aimed at concealing any of the above- violations • Lead to the deterioration of his situation, cause damage or harm to him.
SPECIFIC PREREQUISITES FOR THE PROVISION OF PROTECTION This does not mean that any decision with negative consequences for a worker is retaliation. Both of the above-men-
The future Act should clearly specify the prerequisites for the provision of protection to tioned conditions should be met jointly, and therefore it is also necessary to establish the causal link between these
whistleblowers, i.e. the conditions that have to be fulfilled jointly for a disclosure to be classified as protected whi- decisions or actions with the whistleblowing. Future regulation should explicitly prohibit such retaliatory
stleblowing. These prerequisites should be in line with the standards developed in the case-law of the European Court actions. These actions should be considered a criminal offense, and any disciplinary decisions taken in retaliation
of Human Rights and should be proportionate to the objectives of the Act, guaranteeing the effective implementation should be deemed void by law.
of its basic assumptions.
• Guarantees of anonymity
THESE PREREQUISITES INCLUDE: One of the elements of the special protection regime for whistleblowers should be the statutory guarantees of anony-
• The existence of a link between the disclosure of irregularities and the public interest – mity. In order to prevent the abuse of the mechanisms provided for in the Act, however, it is necessary to stipulate that
the whistleblower acts in the public interest and the disclosure is not for the individual’s private gain; the party receiving a whistleblower’s report is not obliged to consider an anonymous report unless it provides evidence
of that lends credibility to the existence of an irregularity8.
• Acting in good faith and authenticity of the information disclosed – the whistleblower
acts in the legitimate (sincere) belief that the information disclosed by him, indicating IN PRINCIPLE, THE WHISTLEBLOWER’S PERSONAL
the existence of an irregularity, is true; the presumption of good faith is nullified by DATA SHOULD BE CONFIDENTIAL AND ANY DEPARTURE
acting for a purpose contrary to the law or principles of social coexistence; FROM THIS PRINCIPLE IS ACCEPTABLE ONLY:
• On the basis of the express consent of the party concerned
• Subsidiarity of external disclosure - Prior to external disclosure, the whistleblower used internal
whistleblowing mechanisms available to him (he was acting within an internal compliance procedure, • With the court’s consent
and in the absence of such a procedure, he notified the supervisor or other competent authority
or entity), unless the use of such mechanisms would be impossible, or obviously impractical7; • When it is necessary to protect an important
public interest or the rights of others
• Proportionality of possible damage resulting from the disclosure of irregularities to benefits
arising from the whistleblower’s activity – to safeguard the interests of employers, the benefits Disclosure of information in circumstances other than those specified should constitute a criminal offense. Acceptance
of disclosure of irregularities should outweigh its costs; the whistleblower should act on the basis of of a whistleblower’s report cannot be subject to prior approval of the disclosure by the person reporting the irregularity.
a reasonable belief that there is an appropriate proportion in the account of such gains and losses as
a basis for assuming the potential damage and benefits that his action may bring to the public interest.
7
Such a solution is recommended by the Council of Europe Parliamentary Assembly Resolution on the Protection of whistle-blowers, according to which
external whistleblowing can be resorted to where internal channels either do not exist, have not functioned properly or could reasonably be expected
not to function properly given the nature of the problem raised by the whistleblower.
8
An identical solution has been adopted in the Hungarian Act– Article 5(7)
They are subject to periodic review for correctness and effectiveness of their operation
The circumstances of the case concerned or the nature of the irregularity reported
do not prevent the use of internal procedures.
In the event of failure to fulfil the above obligation, no special legal protection provided for by law will be available to the
whistleblower – such actions will be subject to protection under rules of general application.
SUBSTANTIVE SCOPE PERSONAL SCOPE DEFINITION OF WHISTLEBLOWER PROTECTION PREREQUISITES SUBSTANTIVE SCOPE PERSONAL SCOPE DEFINITION OF WHISTLEBLOWER PROTECTION PREREQUISITES
MOLDOVA reporting acts of corruption a civil servant, a civil servant, including voluntary reporting • offense of fraudulent
and related corruptive including a special a special status worker, in good faith practices in connection with
behavior, breach of status worker, public official, and other public tenders and auctions,
regulations on property public official, public service provider offense punishable by
declarations and breach of and other public reporting voluntarily, imprisonment for at least
legal obligations concerning service provider in good faith and in the 3 years and administrative
conflicts of interest; public interest, on acts offense punished by a fine
of corruption and related of at least EUR 50 000
to corruption, instances
of corruptive behavior,
breach of the rules on
property declarations
and breach of legal
obligations concerning
conflicts of interest
NETHERLAND information about abusive in the private sector: in the private sector – suspicions should be based of such commitments, France, a unilateral act and proportionate to
practices in the workplace current and former a person suspected of abuse on reasonable grounds and laws, regulations or major issued by an international the protection of the
or other institution, which employees, as well as at their workplace or other be reported in good faith threats or detriment to organization on the basis interests in question, and
affect the public interest non-employees (e.g. company that affects the the public interest of such a commitment, law, the person intervenes in
present and former public interest (e.g. violation regulation or major threat accordance with legally
clients, trainees, etc.) of law, risk to health, safety or detriment to the public defined procedures and
or the environment); interest, of which the person meets the criteria of the
in the public sector: has personal knowledge whistleblower definition.
civil servants in the public sector: The intervention is made
civil servants to preserve transparency,
fight corruption and
modernize economic life,
however, the law does not
cover facts, information
or documents constituting
national defense secrets,
medical secrets or
secrets in the lawyer-
client relationship.
Whistleblowing, or bona fide disclosure of irregularities within an organization, is a very Counteracting (preventing and detecting) abuses and corruption requires
important process, as it is the main source of information about irregularities that the use of many different arrangements, usually closely interrelated.
threaten corporate values while being relevant to the public interest.
ERGO HESTIA Anna Szukalska, Piotr Bachurzewski, Marek Siemko, Mario Zamarripa
In its 2015 report, the Polish Chamber of Insurance (PIU) notes that the value
of insurance offenses disclosed in the insurance sector in Poland amounted
to approx. PLN 180 million, of which over 80% were traffic abuses, which represents
1.16% of all claims paid (about 15.5 bn) in the non-life insurance market in 2015.
Global Compact
Network Poland
STUDY EXPERTS
AND MEMBERS OF THE STEERING
COMMITTEE
PIOTR CHMIEL - One of the first people to build the Compliance Management System at T-Mobile Polska ANNA POTOCKA-DOMIN - Vice President of the Business Center Club, Director of the Institute
S.A. Previously worked as an auditor at PricewaterhouseCoopers, dealing with the analysis and design of Economic Intervention; member of the GC Poland Program Board. Graduated in journalism from
of control mechanisms in business processes and IT processes. His experience and skills are confirmed the Faculty of Journalism and Political Science at the University of Warsaw, completed postgraduate
by the Certified Fraud Examiner (CFE), CIA (Certified Internal Auditor) and CISA (Certified Information studies in marketing and advertising, and an MBA Executive course (GFKM, Rotterdam School of
Systems Auditor) certificates. He is President of the Polish ACFE Chapter (ACFE Chapter #183). Management), where she successfully defended her thesis on Corporate Social Responsibility (CSR).
MAGDALENA RZESZOTALSKA - Director for Corporate Communications and CSR, Polpharma SA – associated
MARIUSZ GACA - Vice-President of the Management Board for Consumer Market since January with Polpharma for 18 years. Responsible for all external and internal communication, corporate sponsorship and
2017. He is also Chairman of the Ethics Committee of Orange Poland. Since 2011 he has served as social responsibility activities of Polpharma. Engaged in key CSR projects of the Polpharma Group, such as the Ethics
Vice-President of Employers of Poland and Chairman of the Polish Section of the OECD’s BIAC. Program, Sustainable Supply Chain, CSR Strategy, Non-Financial Reporting, etc. Member of the Steering Committee
of the Coalition of Ethics Advocates and Global Compact Poland, and the CSR Team at the Ministry of Development.
DR MARCIN KILANOWSKI – Vice President of Kujawsko-Pomorskie Employers’ Organization Lewiatan MARIAN SZCZEŚNIAK - Representative of the Management Board for Social Affairs, Ethics Spokesman
and Vice-President of the Kujawsko-Pomorskie Voivodship Economic Assembly. Since 2013, Representative for PKP Energetyka S.A. Associated with PKP Energetyka S.A., which has evolved from Energetyka Kolejowa,
of the Polish Confederation Lewiatan for Human Rights and Business in the Corporate Social Responsibility since 1976. Graduate of the Adam Mickiewicz University, Faculty of Social Sciences, and Postgraduate
Group of the Prime Minister of the Republic of Poland and the Ministry of Economy, Studies in the field of Organization and Management of Human Resources and Strategic
and, since 2016, in the Sustainable Development and Corporate Social Responsibility Group. Human Resource Management.
BEATA KOPYT – Journalist, coordinator of special projects at Kulczyk Foundation. She deals with JACEK WOJCIECHOWICZ - GCP expert, economist and sociologist – studied in Poland and Australia.
a key aspect of CSR – the relationship between man, his goals and needs, and business. Creates projects Working with PKP S.A, where he was spokesman for ethics of the PKP Group and created the Group’s first
focused on building internal relationships, emphasizing the role and capabilities of the employee code of ethics and managed its implementation in PKP companies. Former long-term employee of the World
and inspiring business towards social change in its immediate and further environment. Bank. Expert of the European Commission and United Nations Economic Commission for Europe.
DR ROBERT LIZAK – Doctor of Laws. Expert of the Central Anti-Corruption Bureau. Expert of the MARIO EVERARDO ZAMARRIPA GONZALEZ - Director responsible for the Sustainable Development
project NCN OPUS 11 „Compliance as a tool to counter corruption” implemented at the Institute of project of ERGO Hestia Group. Associated with the insurance industry since 1995. Worked with the ABA Seguros
Legal Studies of the Polish Academy of Sciences. Former expert of the European Commission for insurance company in Mexico. Has been working with the ERGO Hestia Group since 1998, responsible e.g. for
the avoidance of conflicts of interest (2014-2016). Former Deputy Director of the Department of Hestia Kontakt – C. O. K., sales network management, the You Can Drive brand project. He is currently involved
Financial Information of the Ministry of Finance (2016-2017). He specializes in ethics, comparative in activities in the field of responsible business and sustainable development, including the implementation
criminal law, compliance, white-collar crime and widely understood repressive law. of a CSR strategy and a social reporting process. Engaged in the field of health insurance.
dr Anna Partyka-Opiela - Legal adviser, Senior Associate at the law firm Domański Zakrzewski Palinka,
MARCIN MUSIAŁ – Legal Adviser. With Polpharma since 2003. Currently he deals with ethics and
Compliance Team leader. Doctor of law, continuously advising on issues of compliance, fraud risk management,
compliance issues in the Polpharma Group. Leader of the Ethics Program Team in the Polpharma
pharmaceutical law and healthcare. Dealing for many years with issues related to the transparency of internal and
Group. Graduated in Finance and Banking from the Warsaw School of Economics and Faculty of Law
external processes, advertising, corruption, corporate governance, communication, as well as the redevelopment
and Administration, University of Warsaw. Former teacher at the Department of Economic Law,
and optimization of systems and enterprises. She has conducted a number of projects in the field of compliance
Warsaw School of Economics. Member of the Warsaw District Chamber of Legal Counsel.
audits and investigation audits, as well as implementation and improvement of processes and procedures.
JUSTYNA OLSZEWSKA – Graduated from Jan Kochanowski University in Kielce and Kielce University ŁUKASZ KOLANO - Working for the UN system for 12 years – with UNDP, UNV, UNFPA. Associated with GCP since 2003.
of Technology. Doctoral student of Kozminski University in Warsaw in economic sciences, majoring in Specializes in development cooperation and knowledge transfer. At GCP, he focuses on the introduction of UN and EU goals
management sciences. She has dealt with the media, internal and external communication in organizations, and standards into business strategies, analyzing the impact of business activities on communities and the environment.
served as editor-in-chief of Skanska publications, led projects promoting ethics, sustainability and Boasts extensive experience in the implementation of EU projects under the Phare, ESF and POKL funds, as well as aid and
security in the construction industry. She currently serves as Skanska’s Ethics Advisor Manager. development programs of the UN system. He is a graduate of the Faculty of Economics at the University of Warsaw.
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SUPPORTING
I M P L E M E N TAT I O N
O F S D G TA R G E T S :
16.5
Subs t antially reduc e c or r up tion
and br iber y in all their for ms
16.5.2
Propor tion of busine ss e s that
had at leas t one c ont ac t w i th
a public of f icial and that paid a br ibe
to a public of f icial , or were asked
for a br ibe by thos e public of f icial s
dur ing the prev ious 1 2 months
8.8
Protec t l abour r ight s and
promote s afe and s ecure wor k ing
env ironment s for all wor ker s,
including migrant wor ker s,
in par ticul ar women migrant s,
and thos e in prec ar ious employment
8.8.2
Increas e in national c omplianc e
of l abour r ight s (f ree dom
of ass ociation and c ollec tive
bargaining) bas ed on Inter national
L abour Organization (ILO) tex tual
s ourc e s and national legisl ation,
by s ex and migrant s t atus
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