Act No. 171 / 2023 Coll.
Law on the protection of notifiers
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Law
Effective from 01.08.2023
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171
THE LAW
of 2 June 2023
on the protection of notifiers
Parliament has decided on this law of the Czech Republic:
BASIC PROVISIONS
Subject matter
This law implements the relevant European Union Regulation (1) and provides for
(a) the submission and procedure for examining the notification of a possible infringement;
(b) the conditions for granting protection to the natural person who has made the notification (the notifier); and
(c) the jurisdiction of the Ministry of Justice ("the Ministry") in the area of the protection of notifiers.
Notification
(1) The notification shall include information on a possible infringement which has occurred or is to take place in the case of a person for whom the notifier has, albeit moderately, performed a job or other similar activity, or of a person with whom the notifier has been or is in contact with in connection with the performance of the work or other similar activity, and which:
(a) has the characteristics of a criminal offence;
b) has the characteristics of an offence for which the law sets a fine rate of at least CZK 100,000,
(c) infringes this law; or
(d) infringes other European Union legislation or regulation in the field of:
1. financial services, statutory audit and other verification services, financial products and financial markets;
2. corporation tax,
3. preventing the legalisation of proceeds from crime and terrorist financing;
4. consumer protection,
5. compliance with product requirements, including their safety;
6. road safety, transport and traffic safety,
7. environmental protection,
8. the safety and health of food and feed,
9. radiation protection and nuclear safety,
10. competition, public auctions and public procurement,
11. the protection of internal order and safety, life and health,
12. protection of personal data, privacy and security of electronic communications networks and information systems,
13. the protection of the financial interests of the European Union2), or
14. the functioning of the internal market3) including the protection of competition and State aid under European Union law.
(2) The notification shall contain details of the name, surname and date of birth, or other data from which the identity of the notifier may be derived; data on the identity of the notifier shall be deemed to be true. The notification may not contain the information referred to in the first sentence if it has been submitted by a person whose identity is known to the person concerned under Paragraph 10 or to a civil servant under Section 13.
(3) Work or other similar activity for the purposes of this Act shall mean:
(a) dependent work carried out in a basic employment relationship;
(b) service (4),
(c) self-employment;
(d) the exercise of rights associated with participation in a legal person;
(e) the performance of the duties of a member of an authority of a legal person;
(f) the performance of tasks in the course of the activity of a legal person, in its interest, on its behalf or on its behalf;
(g) the management of the trust fund;
(h) volunteering;
(i) professional experience, internship; or
(j) the exercise of rights and obligations arising out of a contract involving the provision of supplies, services, works or other similar services.
(4) For the purposes of this Act, work or other similar activity shall be understood as seeking work or other similar activity.
Exceptions to infringements of a contractual or legal obligation and information whose notification is not considered to be a notification
(1) Where the notifier had reasonable grounds to believe that the notification was necessary for the detection of an infringement pursuant to Article 2 (1), the notification is not a breach of banking secrecy, a contractual obligation to maintain confidentiality, an obligation to maintain confidentiality under the tax rules, or an obligation to maintain confidentiality under other legislation governing work or other similar activities, with the exception of
(a) to ensure the protection of classified information5) and of information the disclosure of which would manifestly jeopardise ongoing criminal proceedings or the protection of specific facts under the law governing crisis management;
(b) maintain confidentiality in the course of the activity;
1. notary, notarial candidate and notarial associates (6),
2. the Prosecutor, Assistant Prosecutor and the Legal Waire7),
3. the lawyer and the barrister),
4. court executor, executive candidate and executive associate (9),
5. a judge, a judge of the Constitutional Court, an assistant of a judge and a candidate of the judiciary (10);
6. an employee of a notary, a judicial executor, a lawyer and an employee of a company through which a lawyer carries out a lawyer as a partner under the law governing the conduct of a lawyer, or a similar foreign company, or any other person involved in the provision of legal services within that company,
(c) maintain confidentiality when providing legal assistance in proceedings before a court or other public authority; or
(d) maintain confidentiality when providing medical services 11).
(2) The notification and conduct of the notifier or person referred to in Article 4 (2) (a) to (h) in the context of the detection of information which has subsequently become the content of the notification is not a breach of a contractual or legal obligation, except where a criminal offence is committed in the context of the detection of such information, or where the notifier or person referred to in Article 4 (2) (a) to (h) had no legitimate reason to believe that the notification was necessary to detect possible infringements. Paragraph 1 shall be without prejudice to this.
(3) The notification under this Act is not part of the notification which contains information
(a) whose notification could directly jeopardise the substantial security interest of the Czech Republic; the substantial security interest of the Czech Republic is understood for the purposes of this Act
1. sovereignty, territorial integrity and democratic foundations of the Czech Republic,
2. internal policy and security, including critical infrastructure and public administration information systems;
3. to a greater extent, the lives and health of persons;
4. the protection of information on public procurement in the field of defence or security, unless the award of such contracts is governed by European Union12),
5. the implementation of international defence obligations;
6. significant security operations; or
7. the fighting capability of the armed forces of the Czech Republic,
(b) the activities of the intelligence services of the Czech Republic; or
(c) the notification of which would constitute an infringement of the obligation to maintain the secrecy of the clergy in connection with the exercise of a confessional secret or a right equivalent to a confessional secret (13).
Measures in question
(1) For the purposes of this Act, a measure of liability shall mean action or omission in relation to work or other similar activities of the notifier which has been raised by the notification and which may cause harm to the notifier or person referred to in paragraph 2 (a) to (h); if these conditions are met, it shall be a retaliation measure in particular:
(a) untying or non-renewal of a fixed-term employment relationship;
(b) discharge, non-service or termination of service;
(c) the abolition of a legal relationship established by an agreement to carry out work or an agreement to work;
(d) removal from the post of Head of Staff or from the post represented;
(e) the imposition of disciplinary action or disciplinary action;
(f) a reduction in salary, salary or remuneration or the granting of a personal allowance;
(g) transfer or transfer to another job or post;
(h) service evaluation or work report;
(i) not allowing professional development;
(j) change in working or working time;
(k) requiring medical advice or occupational medical examinations;
(l) notice or withdrawal from the contract; or
(m) interference with the right of protection.
(2) The notifier may not be subject to a measure in question, or
(a) a person who has provided assistance in identifying information which is the content of the notification, submitting a notification or assessing its justification;
(b) a person close to the notifier;
(c) a person who is an employee or a fellow notifier;
(d) the person controlled by the notifier;
(e) the legal person in which the notifier has a participation, the person controlling it, the person controlled by it or the person controlled by the same controlling person with that legal person;
(f) a legal person whose chosen authority the notifier is a member, a person controlling, controlling or controlled by the same controlling person;
(g) the person for whom the notifier carries out the work or other similar activity; or
(h) a trust fund of which the notifier or legal person referred to in point (e) or (f) is a founder or a fortified or in respect of which the notifier or legal person referred to in point (e) or (f) is a person who substantially increases the assets of the trust fund by contract or acquisition in the event of death.
(3) Where a notification which does not contain data on the name, surname and date of birth, or other data from which the identity of the notifier can be derived, the protection provided for in this Law and other legislation shall be for the notifier and the persons referred to in paragraph 2 (a) to (h) from the moment their identity becomes apparent to the person who may issue the retaliation measure.
(4) The person for whom the notifier carries out work or other similar activity may not allow the notifier or the person referred to in paragraph 2 (a) to (h) to be subject to retaliation.
Right to adequate satisfaction
Those who must not be subject to retaliatory measures shall have the right to reasonable satisfaction if the retaliatory measure has been caused by non-property damage. The provisions of other legislation on special conditions for the exercise of the right to adequate satisfaction are not affected by this).
Surrender protection against retaliation
The waiver of the right to protection against retaliation shall not be taken into account.
NOTIFICATION AND PROCEDURE AFTER EVALUATION OF NOTIFICATION
INDICATOR PROTECTION
(1) Protection under this law belongs to the notifier who
(a) submitted through an internal notification system;
(b) submitted to the Ministry; or
(c) published if:
1. has submitted a notification through the internal notification system and the Ministry, or only to the Ministry, and appropriate measures have not been taken within the time limits laid down by this Act, in particular the person concerned has not considered the reason for the notification pursuant to Article 12 (3), the compulsory body has not taken any other appropriate measures pursuant to Article 12 (5) to prevent or remedy the unlawful situation, or the civil servant has not judged the notification pursuant to Article 13,
2. has a legitimate reason to believe that the infringement referred to in the notification may lead to an immediate or apparent threat to internal order or safety, life or health, the environment or other public interest or to irreparable harm; or
3. has a legitimate reason to believe that, in the event of notification to the Ministry, there is an increased risk, in the circumstances of the case, that he or the person referred to in Article 4 (2) (a) to (h) will be subject to retaliatory measures or that the procedure under Title III is at risk.
(2) Protection against retaliatory measures under this law also belongs to the person who has submitted the notification to the public authority responsible under another legislation or directly applicable European Union law.
(3) Protection against retaliation is not for the person who has made the notification without having reasonable grounds to believe that it is based on true information ("knowingly false notification").
INTERNAL NOTIFICATION SYSTEM
Establishment of an internal notification system
(1) The internal notification system shall be established by a compulsory body which, for the purposes of this Act, means:
(a) contracting authority under the law governing public procurement, with the exception of:
1. municipalities with less than 10,000 inhabitants,
2. legal persons employed on 1 January of the relevant calendar year on average of less than 50 employees, set up or set up to meet needs of the public interest and not having an industrial or commercial character, where the region or municipality principally finances it, exercises a decisive influence on it, appoint or withdraw a majority of persons who are members of its statutory or supervisory body, or have a share, directly or indirectly, of more than 25%;
(b) an employer employing at least 50 employees on 1 January of the relevant calendar year, unless he is a mandatory person under the law on certain measures against the legalisation of proceeds from crime and terrorist financing;
(c) a public authority exercising jurisdiction in the field of corporate tax administration or in the administration of payment for breaches of budgetary discipline;
(d) the public authority exercising its powers and the person carrying on the activity in:
1. civil aviation areas under the Civil Aviation Act;
2. maritime transport areas under § 12i, 12o or 13d of the Maritime Navigation Act; or
3. the offshore oil and gas sector under the Law on the exploration, exploration and extraction of mineral resources from the seabed and on the safety of offshore oil and gas activities; and
(e) an employer who is not a mandatory person under the law on certain measures against the legalisation of proceeds from crime and terrorist financing where:
1. by the person referred to in Article 135 (1) (i), (p), (u), (x), (za), (zc) and (zd) of the Capital Market Act;
2. by a person pursuant to § 534 (a) to (d) of the Investment Companies and Investment Funds Act,
3. a CCP or a trade repository pursuant to a directly applicable European Union regulation governing OTC derivatives, CCPs and trade repositories (15);
4. by a tied representative authorised to arrange consumer housing credit under the Consumer Credit Act,
5. insurance or reinsurance undertaking,
6. a person authorised to mediate insurance or reinsurance under the law governing the distribution of insurance and reinsurance,
7. an institution established in the Czech Republic under a law governing the activity of institutions for occupational retirement provision, or
8. A person publicly offering a cryptoasset other than a token linked to assets or an electronic cash token, a person seeking the admission of a cryptoasset other than a token linked to an asset or an electronic money token to trading or an issuer of a token linked to an asset pursuant to the directly applicable European Union regulation governing the markets for cryptoasset 16).
(2) The compulsory body may delegate the management of the internal notification system to another person. The delegation shall be without prejudice to his responsibility for the performance of his duties under Section 9.
(3) Compulsory bodies, with the exception of contracting authorities which, on 1 January of the relevant calendar year, employed a maximum of 249 employees, may share or benefit from an internal notification system established by another compulsory body if they designate the person responsible for carrying out the tasks referred to in Article 12 (1) and (2). The municipalities that are compulsory may share the internal notification system among themselves. The liability of obliged entities sharing or using an internal notification system established by another obliged entity for the breach of obligations under Article 9 shall not be affected by the provisions of this paragraph.
(4) The population of the municipality referred to in paragraph 1 (a) (1) shall be assessed on 1 May of the relevant calendar year on the basis of the population balance in municipalities processed by the Czech Statistical Office on 1 January of that calendar year.
Obligations of the compulsory body
(1) The compulsory body shall designate the relevant person or persons to carry on the activity referred to in Article 11.
(2) Furthermore, the compulsory body shall ensure:
(a) the possibility for the notifier to submit a notification through the internal notification system in writing, orally or at his request in person; for a person who does not carry out a job or other similar activity for a compulsory entity under § 2 (3) (a), (b), (h) or (i), this shall apply only if the obliged entity has not excluded the receipt of a notification from that person;
(b) the publication of the following information in a way that allows remote access:
1. the means of notification through the Internal Notification System and the Ministry;
2. an indication of the person concerned, his telephone number and e-mail address or another address for delivery; and
3. whether the compulsory body excludes the receipt of notifications from a person who does not carry out work or other similar activity for the compulsory body pursuant to Article 2 (3) (a), (b), (h) or (i);
(c) a lesson to the person concerned on the rights and obligations under this law; an alert shall be drawn up by the obliged entity with the relevant person;
(d) that only the relevant person may be acquainted with the notifications submitted and that the prohibition on the provision of data pursuant to Article 20 is complied with;
(e) an assessment of the justification of the notification by the relevant person;
(f) notification by the notifier of receipt of the notification pursuant to Article 12 (2) and the results of the assessment of the justification of the notification pursuant to Article 12 (3); and
(g) to take appropriate measures to remedy or prevent the unlawful situation following the notification.
Person concerned
(1) Only a natural person who is fit, mature and fully competent may be the person concerned.
(2) For the purposes of this Act, a person who has not been
(a) be convicted of an intentional offence for which the Criminal Code provides for a maximum sentence of imprisonment of more than 2 years, or of an offence committed in connection with the performance of work or other similar activities, unless its conviction for such offences has been destroyed or is, for other reason, regarded as not being convicted; or
(b) in the last 5 years, the guilty of an offence referred to in Article 24 (1) has been definitively recognised.
(3) The integrity referred to in paragraph 2 (a) is certified by an extract from the Register of Penalties which may not exceed 3 months. A person who is not a national citizen of the Czech Republic certifies integrity by means of a similar document, which may not be older than 3 months, certifying integrity, issued by the State of which he is a national citizen, or by the State in which the person has remained continuously over the last 3 years for more than 6 months, and accompanied by an official translation into the Czech language; where such a document is not issued by that State, proof shall be furnished by written declaration of honour. A person who is, or has been, a national of another Member State of the European Union, or has or has had his address in another Member State of the European Union, may, instead of an extract from a register similar to the Register of Penalties, provide proof of integrity with an extract from the Register of Penalties with an annex containing information on his final convictions for offences and subsequent particulars of those convictions entered in the register of that State.
(4) In order to verify whether a person who is a citizen of the Czech Republic and is to be designated as a competent person fulfils the condition of integrity, the public authority may request from the Register of Penalties an extract from the Register of Penalties relating to that person. The application shall be made in electronic form, in a way that allows remote access.
(5) The integrity referred to in paragraph 2 (b) shall be certified at the request of the compulsory body or of the person entrusted with the management of the internal notification system by a solemn declaration stating that the person to be designated by the person concerned has not been guilty of the offence referred to in Article 24 (1) in the last 5 years.
(6) The relevant person shall be obliged to notify that he has ceased to comply with the condition of integrity referred to in paragraph 2, the compulsory body or the person entrusted with the management of the internal notification system within 10 days of the date on which this occurred.
(7) Where the obliged entity is informed that the person concerned has ceased to comply with the condition of integrity referred to in paragraph 2, it shall, without undue delay, withdraw the designation of that person and, if, as a consequence, he shall not have any relevant person, at the same time designate another relevant person.
Activity of the relevant person
(1) Person concerned
(a) accept and assess the justification for the notification made through the internal notification system;
(b) propose to the compulsory body measures to remedy or prevent the unlawful situation following the notification, unless the identity of the notifier or the person referred to in points (a) to (h) of Article 4 (2) could be disclosed by this procedure;
(c) comply with the instructions of the compulsory body, unless they threaten or impede the pursuit of its activities under this law;
(d) proceed impartially in the performance of its activities under this Law;
(e) maintain confidentiality regarding the facts which she has learned in the course of her activities under this law, even after the performance of that activity has ceased, unless otherwise provided for in the law.
(2) The person concerned may not be penalised for the proper performance of his activities under this law.
Procedure of the relevant person following notification
(1) The notification may be made orally or in writing through the internal notification system. Where the notifier so requests, the person concerned shall accept the notification in person within a reasonable period, but no later than 14 days from the date on which the notifier so requested.
(2) The competent person shall notify the notifier in writing of the receipt of the notification referred to in paragraph 1 within 7 days of its receipt, unless:
(a) the notifier has explicitly requested the relevant person not to notify it of receipt of the notification; or
(b) it is clear that the notification would reveal the identity of the notifier to another person.
(3) The relevant person shall assess the justification of the notification and inform the notifier in writing of the results of the assessment within 30 days of receipt of the notification. In factual or legal cases, this period may be extended by up to 30 days but not more than twice. The person concerned shall notify the notifier in writing of the extension of the period and the reasons for its extension before its expiry. Paragraph 2 shall apply mutatis mutandis.
(4) If the person concerned finds, when assessing the justification of the notification, that it is not a notification under this law, he shall inform the notifier in writing without undue delay.
(5) If the notification is assessed as justified, the competent person shall propose measures to prevent or remedy the infringement to the obliged entity. Where a notification is submitted to a competent person of a obliged entity for which the notifier does not carry out a job or other similar activity, the person concerned shall propose corrective action to the person for whom the notifier carries out the work or other similar activity, unless the nature of the case so excluded. If the obliged entity does not take the measures proposed by the relevant person, it shall take other appropriate measures to prevent or remedy the unlawful situation; This shall not apply if it is a measure proposed to a person other than the compulsory body which designated that person. The obliged entity shall immediately inform the relevant person of the action taken, who shall inform the notifier in writing without undue delay. Paragraph 2 shall apply mutatis mutandis.
(6) If the notification is not assessed as justified, the person concerned shall, without undue delay, inform the notifier in writing that, on the basis of the facts set out in the notification and of the circumstances known to him, he / she did not suspect the infringement to be committed, or that the notification was based on false information and shall inform the notifier of the right to file a notification with a public authority.
SCOPE OF MINISTERS
Basic provisions
Authorised staff in the Ministry
The Ministry shall designate the civil servants who exercise its competence under this Act (hereinafter referred to as "the authorised staff member ').
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Regulation Information
| Citation | Act No. 171 / 2023 Coll., on the protection of notifiers |
|---|---|
| Regulation Type | Law |
| Author | - |
| Collection | Code of Laws |
| Date of Promulgation | 20.06.2023 |
|---|---|
| Effective from | 01.08.2023 |
| Effective until | - |
| Status | Valid |
Parliamentary Paper:
Paper No. 352
Public Contracts 5
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