In Short
The Situation: As part of the Action Plan for Democracy, the Government of Spain recently established two new specialized prosecutorial units and a new independent whistleblower protection agency.
The Result: On October 29, 2024, the Ministry of the Presidency, Justice and Relations with the Parliament of Spain announced that the Government had approved an expansion of the Public Prosecution Service and the establishment of the Autoridad Independiente de Protección del Informante (the "AIPI").
Looking Ahead: While questions remain over the scope and precise responsibilities of the new prosecutorial units and the AIPI, organizations working with local governments should expect greater scrutiny of their conduct and the possibility of a heightened risk of investigations and enforcement actions.
Overview of the Action Plan
The minister for the Presidency, Justice and Relations with the Parliament explained that the Action Plan is a roadmap with 31 measures that the Government will implement over the next three years.
The Action Plan's purpose is articulated in three axes:
- Expanding and improving the quality of government information;
- Strengthening media transparency, plurality, and accountability; and
- Strengthening the transparency of the legislature and the electoral system.
The Public Prosecution Service's Expansion and Modification
As part of the Action Plan, the Government created two new specialized prosecuting units outside of the Public Prosecutor's Office. One prosecutorial team will be concerned with "crimes against public administration," such as embezzlement and bribery, while the other (referred to as the "economic crimes unit") will reportedly target tax crimes and fraudulent activities involving government welfare programs.
These units supplement Spain's main preexisting anti-corruption agency, the Fiscalía Anticorrupción, which prosecutes major instances of corruption and economic crime throughout the country. The two new units are expected to provide greater specialization in combating public corruption.
The new units will report directly to the attorney general. Instead of concentrating on major corruption cases within the national government, these units will, in principle, focus on corrupt activity outside of the Fiscalía Anticorrupción's jurisdiction as a means of more effectively rooting out corruption at the municipal level.
The Government has not yet detailed the scope and powers of the two new units—leading to concerns among practitioners about potential overlap between the units and the Fiscalía Anticorrupción. Moreover, others in Spain, including government ministers, have criticized the Government for placing the units under the direct supervision of Attorney General Ortiz, who was recently charged with leaking confidential information obtained from an ongoing fraud investigation.
The AIPI
The Government created the AIPI to protect those who anonymously report regulatory infringements and government corruption. The AIPI is intended to act independently and with full autonomy from the Spanish Government and its agencies. It will investigate claims and refer credible complaints to the Public Prosecution Service. It will not, however, investigate matters currently in proceedings before judges, the Public Prosecutor's Office, or the Spanish Criminal Investigation Unit. No start date has been set for the AIPI—it will begin operating once the Ministry issues an order.
The AIPI will be composed of two main bodies. The Office of the Presidency, whose head is appointed by Royal Decree for five-year terms, will be the main office in charge of high-level legal and administrative decisions. The Consultative Commission for Whistleblower Protection will function as an advisory body, made up of 13 representatives, which will provide non-binding recommendations to the President. The statute also created three separate executive departments.
- The Whistleblower Protection Department will maintain the AIPI's whistleblower external reporting channel and implement whistleblower protection measures.
- The Monitoring and Infringements Department will oversee compliance and issue appropriate sanctions for violations.
- The Internal Management Department will oversee internal administration.
AIPI personnel are obligated to keep in the strictest confidence, even after they leave the AIPI, any personal data and confidential information obtained during their employment. The AIPI, while linked to the Ministry of the Presidency, Justice and Relations with the Parliament for budgetary reasons, will have its own financial resources independent from the General State Administration. The attorney general will also provide legal representation and counsel to the AIPI.
Critics of the AIPI, such as the non-governmental organization Whistleblowing International Network, contend that the AIPI does not go far enough to protect whistleblowers. Such critics argue that the AIPI protections apply only to reports concerning "serious or very serious" misconduct, which considerably narrows the AIPI's authority. Others maintain that the AIPI lacks jurisdiction over workplace harassment, abuse, or whistleblowers who flag misconduct already circulating in the public domain.
Three Key Takeaways
- Through the creation of two new prosecutorial units and the AIPI, Spain has signaled a stronger commitment to combating corruption and encouraging government transparency.
- Under the AIPI, companies and individuals are subject to fines for certain legal violations; companies face penalties of up to €1 million and public procurement bans, and individuals may be fined up to €300,000.
- Uncertainty remains over the specific scope and responsibilities of the newly established prosecutorial units. Organizations nevertheless should closely monitor these units' activities (including enforcement actions and official guidance) and ensure that their compliance programs are designed and implemented to adequately mitigate the risk of corporate misconduct and to address the possibility of a heightened risk of enforcement action.
