AUDITORS’ RESPONSIBILITIES AND OBLIGATIONS TO REPORT SUSPECTED BRIBERY UNDER THE ANTI-BRIBERY CONVENTION

1. Obligations to report suspected bribery

Auditors have a legal obligation to report suspicions that the offence of bribery of foreign public officials may have been committed, in accordance with Article 267 of the Criminal Code  approved by Law No 286/2009, as amended and supplemented. This obligation arises when, in the course of their duties, auditors identify indications that justify a reasonable suspicion in a specific situation. Reporting means passing this information on to the criminal investigation bodies, with jurisdiction lying specifically with the National Anticorruption Directorate (DNA) for offences of bribery of foreign public officials.

It is essential to stress that, at this stage, auditors have neither the obligation nor the competence to prove the offence or to make a legal classification of it. Their role is limited to notifying the competent bodies where there are reasonable grounds for suspicion.

In addition to this obligation, auditors may also use the provisions of Law No 361/2022 on the protection of whistleblowers, as amended and supplemented (Law No 361/2022) which allows such acts to be reported through the channels provided for by law, offering protection, support and remedial measures, as regulated in Chapter VI of that legal act. In this framework too, auditors are not required to prove the offence or classify it legally, but only to report a well-founded suspicion.

However, using the mechanisms provided for by Law No 361/2022 does not release the auditor from the separate obligation to report under Article 267 of the Criminal Code. The two instruments are complementary, and reporting to the DNA remains mandatory under the conditions laid down by criminal law.

2. Public disclosure

A whistleblower who publicly discloses information on breaches of the law is protected if one of the following conditions is met:

• they first reported internally and externally, or directly externally, in accordance with III and IV of Law No 361/2022, but consider that no appropriate action was taken within the period referred to in Article 17 (6);
• they have reasonable grounds to believe that:
• the breach may constitute an imminent or manifest danger to the public interest or a risk of irreversible damage; or
• in the case of external reporting, there is a risk of retaliation or a low prospect of the breach being effectively addressed, given the particular circumstances of the report.

3. Whistleblower protection, support and remedial measures

To benefit from protection measures, the whistleblower must meet all of the following conditions:

• be one of the reporting persons referred to in 2 (1) of Law No 361/2022 who obtained information on breaches of the law in a work-related context;
• have had reasonable grounds to believe that the information on the reported breaches was true at the time of reporting;
• have made an internal report, an external report or a public disclosure.

To benefit from remedial measures, the whistleblower must meet all of the above conditions, and the retaliation must be a consequence of the report made.

Protection or remedial measures also apply to:

• facilitators;
• third persons connected with the whistleblower who could suffer retaliation in a work-related context, such as colleagues or relatives;
• legal entities owned by the whistleblower, for which the whistleblower works or with which they are otherwise connected in a work-related context;
• whistleblowers who anonymously reported or publicly disclosed information on breaches but are subsequently identified and suffer retaliation;
• whistleblowers who report to the competent institutions, bodies, offices or agencies of the European Union.

4. Exemption of the whistleblower from liability

A whistleblower who reports or publicly discloses information on breaches of the law does not breach legal provisions or contractual clauses on the disclosure of information and is not liable for reporting or publicly disclosing such information, provided that the report or public disclosure was made under the conditions of this Law and that they had reasonable grounds to believe that it was necessary to reveal a breach of the law. The provisions of Article 1 (4) and (5) of Law No 361/2022 remain applicable.

A whistleblower who acquires or accesses data and information of which they become aware in the course of their duties, employment or provision of services is not liable if the access or acquisition is for the purpose of reporting or publicly disclosing a breach of the law and the report or public disclosure was made under the conditions of this Law.

In judicial proceedings concerning matters such as infringement of image rights, copyright infringement, breach of professional secrecy, breach of data protection rules, disclosure of trade secrets or claims for damages, the persons referred to in Article 2 and Article 20 (3) cannot be held liable as a result of reports or public disclosures made under the conditions of this Law. The persons referred to in Article 2 and Article 20 (3) are entitled to rely on that report or public disclosure to seek dismissal of the case, provided they had reasonable grounds to believe that the report or public disclosure was necessary to reveal a breach of the law under this Law.

Where a person reports or publicly discloses information on breaches of the law under the conditions of this Law and that information includes trade secrets, such a report or public disclosure is considered lawful under Article 3 (2) of Government Emergency Ordinance No 25/2019 on the protection of undisclosed know-how and business information (trade secrets) against their unlawful acquisition, use and disclosure, and amending and supplementing certain legal acts.

The persons referred to in Article 2 and Article 20 (3) who have made a report or public disclosure under the conditions of this Law are entitled to full compensation for the damage suffered as a result of the report or public disclosure.

5. Prohibition of retaliation

Any form of retaliation against whistleblowers, including threats and attempts of retaliation, is prohibited, in particular:

• any suspension of the individual employment contract or service relationship;
• dismissal or removal from public office;
• amendment of the employment contract or service relationship;
• reduction in salary and change in working hours;
• demotion or withholding of promotion at work or in public office and of professional development, including through negative individual performance assessments, including of civil servants, or negative employment references;
• the imposition of any other disciplinary sanction;
• coercion, intimidation, harassment;
• discrimination, disadvantage or unfair treatment;
• failure to convert a fixed-term employment contract into a permanent one where the worker had legitimate expectations of being offered permanent employment;
• failure to renew, or early termination of, a fixed-term employment contract;
• harm, including to the person’s reputation, particularly on social media, or financial loss, including loss of business and loss of income;
• blacklisting on the basis of a sector-wide or industry-wide agreement, formal or informal, which may mean that the person will not find employment in that sector or industry in the future;
• unilateral out-of-court termination of a contract for goods or services without the conditions for doing so being met;
• cancellation of a licence or permit;
• psychiatric or medical referrals.

At the request of a whistleblower subject to disciplinary investigation within one year of the report, the bar association in the area where the whistleblower works provides free legal assistance throughout the disciplinary procedure.

6. Liability of persons who have breached the law

Breach of this Law entails civil, disciplinary, contravention or criminal liability, as the case may be.

The following acts constitute contraventions, unless committed in such circumstances as to constitute offences under criminal law, and are sanctioned as follows:

• hindering reporting by any means by the person designated to receive and register reports, or by a member of the department designated for this purpose within the legal entities referred to in 1 (1), with a fine of RON 2,000 to RON 20,000;
• unjustified refusal by authorities, public institutions, legal persons governed by public law and legal persons governed by private law to respond to requests from the Agency and the authorities referred to in 3 point 15(c) in the exercise of their duties under Article 17 (5), with a fine of RON 3,000 to RON 30,000;
• failure by the legal entities referred to in 1 (1) to establish the internal reporting channels referred to in Article 9 (1), with a fine of RON 3,000 to RON 30,000;
• failure by the legal entities referred to in 1 (1) to meet the obligations referred to in Article 10 (1)(a), with a fine of RON 4,000 to RON 40,000;
• breach by natural persons of the obligation to keep confidential the identity of whistleblowers, of the person concerned or of third persons, as provided for in 8 and Article 25, with a fine of RON 4,000 to RON 40,000.

7. False reporting

Knowingly reporting false information on breaches of the law constitutes a contravention and is punishable by a fine of RON 2,500 to RON 30,000, unless committed in such circumstances as to constitute an offence under the law.