The Spanish Government approves the Statute for the Independent Authority for the Protection of Whistleblowers

Royal Decree 1101/2024 approves a Statute for the Independent Authority for the Protection of Whistleblowers (Autoridad Independiente de Protección del Informante, or API), thus fulfilling the mandate contained in Law 2/2023, of 20 February, on the protection of people who report regulatory breaches and on the fight against corruption (Law 2/2023).

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However, the API will not start operating until a later date, which will be set by order issued by the head of the Ministry of the Presidency, Justice and Parliamentary Relations. The key points of the API Statute are described below.

Nature, purpose and functions

The Statute defines the API as a state-wide independent administrative authority, with its own legal personality and full public and private standing. It must act with full autonomy and independence, from an institutional and functional perspective – however, from an organisational and budgetary perspective, it will be linked to the Ministry of the Presidency, Justice and Parliamentary Relations.

The purpose of the API – in line with the provisions of Law 2/2023 – is to guarantee the protection of persons who report regulatory breaches and act as a vital institutional cornerstone in the fight against corruption. The API has been entrusted with the following functions, among others, to achieve its goals:

• Processing the information and reports that it receives through the external reporting channel established by Law 2/2023.
• Opening, pursuing and resolving infringement proceedings and imposing sanctions for the breaches established by Law 2/2023.

The API is not able to investigate events or facts that are already subject to proceedings before a judge, the Public Prosecutor's Office or the Spanish Criminal Investigation Unit (Policía Judicial). Therefore, the API must suspend its investigation – except where related to whistleblower protection – as soon as it becomes aware that proceedings have been opened in respect of the same facts or events that it is investigating.

Structure

The API is structured as follows:

• Office of the Presidency (Presidencia): this is the API's highest representative and governing body; its head is appointed by Royal Decree enacted by the Spanish Council of Ministers, acting on the proposal made by the head of the Ministry of the Presidency, Justice and Parliamentary Relations.
• The Consultative Commission for Whistleblower Protection (Comisión Consultiva de Protección del Informante): this is a collective body that has as its primary purpose to provide advice (not binding) to the head of the Office of the Presidency. The Consultative Commission will have 13 members, composed of representatives from the different state institutions and regulatory authorities, including a representative for the most important whistleblower associations.

In turn, a number of other executive bodies also branch off the Office of the Presidency, which are at the same institutional level as a sub-directorate general:

• Whistleblower Protection Department (Departamento de Protección del Informante). Its primary functions are to adopt measures to protect and support whistleblowers, as well as management of the external reporting channel.
• Monitoring and Infringements Department (Departamento de Seguimiento y Régimen Sancionador). This department is mainly responsible for handling infringement proceedings and will also act as the secretariat for the Consultative Commission.
• Internal Management Department (La Gerencia). This body is responsible for the internal management and administration of the Consultative Commission.

Other areas of interest

The Statute establishes a specific obligation for API personnel to keep in the strictest confidence, even after they leave the API, any personal data and confidential information that that have obtained in the performance of their duties.

It is also established that the API will have its own financial resources independent from the General State Administration and that the State's General Attorney's Office will provide it with legal representation and counsel.