On 4 February 2022 “The Protection of Persons who Report Breaches of Union and National Law, Law of 2022”, L.6 (I)/2022 (“Law L.6 (I)/2022”) was published. Its purpose is to establish an efficient framework of special legal protection for persons working in the public or private sector who disclose information and data which came to their possession or attention, respectively, within their workplace and for which they have reasonable belief that such are true and are related to breaches of union and/or national law. These persons will be deemed as whistleblowers and they will benefit from the protection provided by the Law L. 6(I)/2022, provided that the report is made by name and that there are reasonable suspicions that the information regarding the breaches is true. Nevertheless, the said Law also applies in case of anonymous reports of violations, where after the anonymous report the informant is identified and suffers retaliation.
"Report" is the submission of information/complaint to a competent person or "Competent Authority" by the whistleblower in relation to potential breaches. The object of the report must relate to breaches of specific national legislation or European Union (“EU”) Law. In this case, the Commission for the Protection of Competition is the competent authority and reports submitted to it should concern infringements of Articles 3(1) and 6(1) of the Protection of Competition Law of 2022 (“Law”), as well as infringements of Articles 101 and 102 of the Treaty on the Functioning of the European Union (“TFEU”). For instance, the disclosure may concern, inter alia, the agreement or coordination between competing undertakings to fix purchase or sale prices or bid-rigging in public tenders (article 3(1) of the Law and 101 of TFEU). Also, the disclosure of information may concern abuse by one or more undertakings holding dominant position in the market, where with their behavior and/or practices they seek to exclude competitors from the market or exploit their customers e.g. by imposing unfair purchase prices or other unfair conditions, etc.
WHISTLEBLOWERS
“The Protection of Persons who Report Breaches of Union and National Law, 2022”, L.6(I)-2022
Α. Requirements for the protection of reporting persons (whistleblowers)
A reporting person (or whistleblower) is protected by virtue of the Protection of Persons who Report Breaches of Union and National Law, 2022 (hereinafter “Law 6(Ι)/2022”) when all of the below requirements are met:
1. The said person falls within the categories of persons stipulated in sections 5 and 32 of the Law 6(Ι)/2022 and has gathered information and data within his/her workplace.
2. The information concerns breaches of national or European Union law, as stipulated in section 4 and section 31 of Law 6(Ι)/2022, respectively.
3. They have reasonable grounds for the said person to believe that such information was true, at the time of reporting.
4. The report was filed through internal reporting channels, or externally to a competent authority, or the reporting person (or whistleblower) proceeded to a public disclosure in accordance with the requirements set out by Law 6(Ι)/2022.
5. The information provided should not been provided in breach of any rules relating to classified information, the protection of the legal or medical professional privilege, the secrecy of judicial deliberations and of the criminal procedure rules; or that the access to such information or publication of such information does not amount to a criminal offence.
It should be noted that the Law 6(Ι)/2022 also applies to breaches of the Law reported anonymously, provided that the reporting person (whistleblower) is subsequently identified after the anonymous report. In this case and if the reporting person (or whistleblower) has endured acts of retaliation, then the reporting person shall have a right of protection.
Β. Contact details of the Competent Authority
The Commission for the Protection of Competition (hereafter the “Commission”) has established a reporting channel, for the receipt and follow-up of “external reports”, which may be submitted either in writing or orally and/or in both ways.
a) Telephone contact line: +357 22606633
* Any discussions exchanged through the use of the said telephone line, shall be recorded in a durable and retrievable form, subject to obtaining the prior consent of the whistleblower. Alternatively, a complete and accurate transcript of the conversation shall be kept. In the cases where the whistleblower has disclosed his/her identity, he/she is offered the opportunity to check, rectify and agree with the transcript of the telephone call, by signing it.
b) E-mail: whistleblower@competition.gov.cy
d) Postal address: 53 Strovolos Avenue, Victory Building, 2018 Strovolos, Nicosia P.O. Box 23467, 1683 Nicosia for the attention of the designated officers responsible for handling reports with the indication “CONFIDENTIAL INFORMATION / RESTRICTED ACCESS”.
d) Following the whistleblower’s communication via the telephone stated in paragraph (a) above, the arrangement of a meeting in person shall be arranged. In such a case, the same procedures apply as the recording of the conversation and/or the keeping of the minutes described in paragraph (a).
C. Procedures for the handling of reports and follow-up measures
An acknowledgement of receipt is issued to the reporting person (whistleblower) upon receipt of the report and within seven (7) days from the date of that receipt. The said acknowledgment of receipt is either written and dispatched to the postal address or e-mail address of the whistleblower, if the latter has been provided, or it is made orally via telephone. Upon receiving the said acknowledgment of receipt of the report, the reporting person (whistleblower) shall also be notified about the timeframe within which he/she will be provided with feedback about the course of the report’s investigation, which shall not exceed three (3) months from the date of dispatch of the report’s acknowledgement of receipt or six (6) months in duly justified cases.
Subsequently, the designated officers responsible for handling of reports, shall follow-up the report, evaluate the accuracy of its allegations as well as the possibility of undertaking further measures in order to handle the reported breach. Specifically, the officers responsible for handling reports, shall evaluate whether they shall proceed to further follow-up measures, such as to forward the case for the instigation of criminal proceedings, or to the referral of the report to another competent authority for further actions or to proceed to closure of the procedure due to insufficient evidence. This assessment shall follow, as a result of an investigation which shall be undertaken by the Commission, pursuant to the powers afforded to the Commission by virtue of the national law.
During the follow-up of the report, the officers responsible for handling reports, can either dispatch a written request to the postal address or to the e-mail address of the whistleblower, if the latter has been provided; or may orally request the whistleblower via telephone to clarify the information reported or to provide additional information which is at the whistleblower’s disposal.
The information provided to the reporting person (whistleblower), which includes the findings/results of the investigation of the report, shall be communicated in the same way as that of the acknowledgement of receipt of the report, as described above. In the event that the whistleblower has not provided any contact details through which he/she could receive the above information, he/she can receive the abovementioned information by contacting the Officers for the handling of reports via the telephone number +357 22606633 mentioned above.
Any information received, exchanged or transmitted when receiving reports for potential infringements of union and/or national law, shall be handled in accordance with requirements established for maintaining confidentiality, as stipulated in section 17 of the Law 6(Ι)/2022.
D. Confidentiality status and the processing of personal data
In relation to the confidentiality status applied to the reports, the Commission seeks to raise the attention of reporting persons (whistleblowers) to the instances below, where confidential information of a reporting person (whistleblower) could be publicised:
(a) In the context of civil or criminal or other judicial proceedings, whereby the Commission is sought to provide evidence or testimony; or at criminal or disciplinary proceedings.
(b) In the event where the Commission makes a disclosure where this is deemed a necessary and proportionate obligation imposed by union or national law, in the context of investigations by national authorities or judicial proceedings, inter alia, with a view of safeguarding the rights of defense of the person concerned.
(c) In the context of the concerned person’s right to a hearing, by allowing the said person to access information in the relevant administrative file. In case where the union and/or national competition law applies, the provisions of sections 42 and 58 of the Protection of Competition Laws 2022 are applied.
In addition to the above, it is noted that according to section 40(1) of the Protection of Competition Laws of 2022, the Chairman and the other members of the Commission, officers of the Service and other public officers, persons working for the Commission on the basis of contracts for the provision of services and/or under any other status and persons who are posted or seconded to the Commission who, as a result of their post or in the performance of their official duties, obtain information on business secrets and/or confidential information as well as personal data, shall be under a duty of confidentiality and shall be obliged not to communicate and/or publicise such information, except in so far as this is necessary in order to:
(a) prove any infringement of this Law and Article 101 TFEU and of Article 102 TFEU;
(b) implement the provisions of this Law;
(c) comply with a decision of a competent Court.
In relation to the processing of personal data carried out within the context of “external reporting” for infringements of national and/or union Law, the Commission, without prejudice to the Protection of Competition Laws of 2022 and specifically to sections 26(4) and 42, shall comply with Regulation (EU) 2016/679 on the Protection of Natural Persons with Regard to the Processing of Personal Data And on the Free Movement Of Such Data, the Law Providing for the Protection of Natural Persons with Regard to the Processing of Personal Data and for the free Movement of such Data of 2018 (L. 125(I)/2018) and the Law on the Protection of Natural Persons Regarding the Processing of Personal Data by Competent Authorities for the Purposes of the Prevention, Investigation, Detection or Prosecution of Criminal Offenses or Execution of Criminal Penalties and for the Free Movement of Such Data of 2019 (L.44(I)/2019). Furthermore, any exchange or transmission of information by Union institutions, or other bodies, offices or agencies shall be undertaken in accordance with Regulation EU 2018/1725.
It is clarified, that personal data gathered in the context of receiving reports shall be deleted within three (3) months from the date of closure of the procedure
In the event that court proceedings or other disciplinary proceedings against the person concerned or the reporting person (whistleblower) have commenced, then the personal data shall be maintained for the whole duration of the said proceedings, including the case where there is exercise of the right of appeal or opposition, and after the expiration of one (1) year from the date of their closure, they shall be deleted.
E. Remedies and procedures for protection against retaliation
A reporting person (whistleblower), who files a report, in accordance with the provisions of Law 6(I)/2022, is automatically protected from a series of actions that could be characterized as vindictive behavior or retaliation, whilst, he/she contemporaneously enjoys important protection measures.
1. Legal measures to stop retaliatory conduct and to claim compensation
In case a reporting person (whistleblower) suffers any retaliatory conduct or detriment, he/she has the right to apply to a competent court (Industrial Disputes Tribunal or District Court or Administrative Court, as the case may be), to revoke any retaliation, and at the same time, to claim any compensatory damages.
The reporting person (whistleblower) must prove that he/she has filed a report or made a public disclosure and that as a result of such an action he/she suffered some detriment, e.g., he/she was dismissed from employment, or he/she was demoted, or that a disciplinary investigation was initiated against him/her etc. At that point, a rebuttable presumption is established that the detriment suffered, resulted from retaliation had been caused by the report filed. This means, that it is then up to the other person to prove that the measure that caused harm did not amount to a retaliatory action, but instead, that it was based on duly justified reasons, unrelated to the filing of the report.
If the Court decides that the reporting person (whistleblower) has indeed suffered any retaliation and/or detriment due to retaliatory conduct, it will then award compensatory damages covering both the material damage as well as any moral or physical harm suffered by the whistleblower. At the same time, any retaliatory measure suffered by the whistleblower is considered void ab initio, that is void from the beginning, i.e. as if such action never happened. In fact, if a person was dismissed because of the filing of a report and wishes to return to work, then the Industrial Disputes Tribunal will even order their reinstatement.
2. Protection from civil liability
In some cases, or during a public disclosure, the reporting person (whistleblower) in order to support his/her report, may need to communicate to the internal or external reporting channels any information, data, documents, to which some restriction applies, e.g. on confidentiality grounds or on protection of personal data grounds. If the employee has reasonable grounds to believe that the communication of this information has been necessary in order to disclose the violation, then he/she will not be considered to have breached these restrictions and therefore will not be burdened with civil liability. In particular, in accordance with section 36(8) of the Protection of Competition Law of 2022, in accordance with the law of the European Union, the communication of information to the Commission based on the provisions of this Law and/or Regulation (EC) no. 1/2003, is not considered to violate any restriction on the disclosure of information imposed by virtue of a contract or by virtue of a legislative, regulatory or administrative provision and does not entail for the person making the notification any legal liability in relation to said notification.
However, this protection does not extend to cases where obtaining or accessing this information constitutes a separate criminal offence. Therefore, if the whistleblower by sharing the information commits a criminal offense then he/she can be prosecuted.
In addition, the reporting person (whistleblower) who filed a report, pursuant to the provisions of Law 6(I)/2022, shall not incur any liability in civil proceedings such as: proceedings for defamation, infringement of intellectual property rights, breach of confidentiality, breach of data protection rules, disclosure of trade secrets, or for compensation claims based on private, public or on collective labour law.
In fact, if such a case is initiated against him/her, the reporting person (whistleblower) has the right to invoke that he/she submitted a report or made a public disclosure, pursuant to the provisions of Law 6(I)/2022 and to request the dismissal of the legal action.
*Note: Reporting persons (whistleblowers) are protected from liability for breach of confidentiality, provided the information has not been given in violation of the rules relating to the protection of classified information, the protection of the legal and medical professional privilege, the secrecy of judicial deliberations and the rules on criminal procedure; or provided that accessing and sharing them does not constitute a criminal offence, and provided that they do not involve violations of rules on defense or security matters or conventions, unless these are covered by the relevant acts of the European Union.
3. Witness in criminal proceedings
Depending on the nature of the content of the report and the seriousness of the case, criminal proceedings may be initiated against a person named in the report.
In such a case, it is possible that the reporting person (whistleblower) will have to testify as a witness before the Court to facilitate and in support of the allegation. The Law provides that in such cases, the reporting person (whistleblower) enjoys protection measures aiming mainly at preserving their anonymity,for example, to testify in the absence of the accused, to give the testimony through closed circuit television, to record his testimony on video. In fact, depending on the case, the said person can also be included in the Protection of Witnesses and Collaborators of Justice Scheme.
4. Employer’s obligation to co-operate
Every employer must protect his/her employees from any act of their superior, or a person responsible for him/her, which constitutes retaliation due to reporting and take all appropriate and timely measures to prevent such acts. Every employer, immediately after specific acts of retaliation comes to his/her attention due to the filing of a report, shall take any available measure for the waiver and non-repetition of retaliation, as well as for the waiver of its consequences
Where an employer does not take measures to prevent the aforementioned behavior then he/she shall be jointly responsible– in other words, he/she may be considered to be afforded with the same responsibility as if he/she, had carried out retaliation, threats or retaliatory actions against the reporting person (whistleblower).
F. Information
Further information on the procedures and remedies available for protection against retaliation and the rights of whistleblowers is available to the general public in the form of 'Guides' and can be found at the link below on the website of the Ministry of Justice and Public Order (125. Athalassas Avenue, 1461 Strovolos, Nicosia – CYPRUS, Tel (+357) 22805950/51, Fax: (+357) 22518356, Email: registry@mjpo.gov.cy).
https://www.mjpo.gov.cy/mjpo/mjpo.nsf/homee/homee?opendocument
The relevant Law 6(I)/2022 is herewith attached.
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