CONCLUSIONS OF THE OPINION: The figures of the investigator, the reporting person, the concerned person and the facilitator in the EU Directive 2019/1937. The regulation creates new figures that play a decisive role.
FIRST.- The figure in charge of the complaint’s channel is not, like others, defined as such in the Directive; but because of its activity, it is perfectly identified with the meaning that the various dictionaries give to the word “INVESTIGATOR” (this figure exists in Spanish law is called Instructor),
SECOND.- The “FACILITATOR” is a natural person who assists a complainant in the complaint process in an employment context, and whose assistance must be confidential. In other words, whether the complaint is anonymous or not, the facilitator must ALWAYS remain anonymous to the owner of the channel. In the manner in which such confidentiality is established, it is the responsibility of the “INVESTIGATOR”, who receives, processes, and follows the complaint, i.e., investigates the procedure.
THIRD.- A “REPORTING PERSON” is a natural person who communicates or publicly discloses information about violations obtained in the context of his/her work activities. The Directive itself establishes the concept of “work activity” in an absolutely extensive way, reaching the whole universe of the person who reports.
FOURTH.- The “REPORTING PERSON” has the power to choose the most appropriate channel for his/her complaint to be processed in the way he/she thinks should be done. If he/she does not trust the internal channel, if the Instructor is not publicly serious and rigorous, he/she can choose an external channel or the press only by alleging it, WITHOUT CONSIDERATION OF BORDERS.
FIFTH.- The “CONCERNED PERSON” is the natural or legal person referred to in the complaint or public disclosure as the person to whom the infringement is attributed or with whom the infringement is associated.
SIXTH.- The “CONCERNED PERSON” in the investigative procedure, from the first minute, is given the right to have this procedure with all the guarantees, in order to be able to safeguard his/her right of defence.
SEVENTH.- That in what is the subject of the complaint, all measures must be taken to protect the integrity of the investigations and proceedings or the rights of defence of the persons concerned. However, this should be without prejudice to the reversal of the burden of proof, which is imposed by the Directive. Both in the complaints channel and in national administrative, civil, criminal or labour proceedings.
EIGHTH.- The Directive does not fail to protect information which is either incomplete or incorrect but which could have been submitted in the belief that it was correct. To filter out such cases, there is precisely the figure of the “INVESTIGATOR” and the “INVESTIGATION PROCEDURE”.
