Comments on the Romanian Transposition of the Whistleblowing Directive (1)

In the past couple months, I have seen a lot of comments from various lawyers on the Romanian proposal for the transposition of the Whistleblowing Directive. Some are enthusiastic, hoping to get a chunk of the business pie out of the implementation of the regulatory requirements, while others really don’t see the implications of a poorly written law (“lege strâmbă”). It is similar to the transposition of the GDPR, from this perspective, when a lot of people were advertising their consulting services indicating the highest level of the possible fines. Contrary to that moment, few people really know the subject at stake. So, I will be posting a few things in the coming weeks so you get well informed about the current situation of the transposition of the WBD in the Romanian legislation.

First of all, there are 2 project: one prepared the Romanian Ministry of Justice, dating from the late 2020 – early 2021. Back then, it was discussed several times at the Ministry of Justice, with the minister of Justice, Stelian Ion, his team and some cocky civil servants. The civil society, the organizations I represent included, asked for public debate and provided extensive opinions on the transposition. Unfortunately, the same civil servants refused to see the wisdom in that and accepted minimal modifications. Moreover, Stelian Ion’s team started drafting another transposition proposal, one that was on the right track with the protection of whistleblowers. But Stelian Ion was fired by the PM before finalizing the proposal and his team’s project was lost between his former office room and the office room of the same civil servants that wrote the 1st draft.

Soon after he left the government and returned to the Romanian Parliament, Stelian Ion introduced a proposal for transposition of WBD. This second proposal is the best document so far. It includes most of all, if not all, the proposals coming the civil society and the business sector. It makes use of the 1st proposal, but in certain parts of the document rearranges the content and introduce real, active protection for whistleblowers.

Now, the Ministry of Justice tried at least 2 times to see its 1st draft approved, but something happened and didn’t make it out of the government official meeting (“ședința de guvern”). Now, Romania has a different minister of Justice, Mr. Catalin Predoiu, who is not too interested in reforming the justice system or in seeing approved laws that strengthen the rule-of-law or provide means to anti-corruption institutions (see the case of SIIJ, a toxic institution that affects the independence of the magistrates). Mr. Predoiu is a member of the National Liberal Party, the 2nd most important party in the Romanian Parliament and one of the members of the governmental coalition, along with Social-Democrat Party and the party of the Hungarian minority.

If the 1st draft gets adopted by the Romanian Government, then it will be sent to the Romanian Parliament for ratification. But the Parliament will have to discuss it along with the proposal of Mr. Stelian Ion, who is a member of the Save Romania Union, which is a former member of the governmental coalition (with the Liberals and the Hungarian minority party) and doesn’t have sufficient votes to see its own laws adopted in the Parliament.

So, now, we are expecting the next move of the Romanian Government. But we also make some final efforts to stop that 1st draft from being adopted. It is so poorly done that will make people think six times before reporting anything. For instance, there are no penalties for those who decide retaliation measures against whistleblowers. I will come back with more details on this in another post.