The law of silence at the ASF: whistleblowers, severely sanctioned by the institution's management

Officials within the Financial Supervisory Authority face a high risk when they find certain irregularities in the activity of that public institution. Being a whistleblower regarding the ASF represents the most difficult position an official can be in, given that three employees of the Authority have already been sent to disciplinary committees, and one of them has already been fired by the institution's management.

The one fired at the beginning of this year is called Cătălin Ionescu. Maybe the name doesn't tell you much, but Mr. Ionescu is the one who warned Parliament on December 22, 2024 about serious irregularities in the supervision of the private pension system and the major risks to which millions of Romanians are exposed, regarding the money from the Second Pillar of pensions. Before the notification, Cătălin Ionescu warned the ASF management several times, exposing the negative impact of the decisions taken at the ASF Council level and documenting the mechanisms through which citizens' savings are endangered.

Because it allowed itself the luxury of providing documents to Parliament regarding these issues, the ASF management ordered measures against the whistleblower, measures that culminated in his referral to the Disciplinary Committee, which decided to terminate his individual employment contract. This was prohibited by law 361/2022, which transposed the European directive on the protection provided to whistleblowers at the national level.

The repressive measures did not stop only at this whistleblower, but, according to an open letter addressed to the ASF ten days ago by the Association of "Whistleblowers in the Public Interest", they were also directed against whistleblowers Cristian Muntean and Francesca Andreescu.

Cristian Muntean is the whistleblower who brought to the Parliament and the National Anticorruption Directorate several documents and information that showed the state of affairs of the Financial Supervisory Authority (ASF). In May 2021, he revealed to the members of the joint budget, finance, banking and capital market committees of the Senate and the Chamber of Deputies the faulty way in which the ASF management managed the supervision and monitoring of the companies City Insurance and Euroins Romania, a way that led to the bankruptcy of the two insurance companies. Moreover, he revealed that the ASF had become a kind of family institution, within which the Authority management hired their relatives (sons-in-law, wives) or mistresses, as well as based on recommendations from the so-called supervised economic operators. Cristian Muntean also stated that the former head of ASF, Nicu Marcu, who is now head of ORNISS, had pressured some employees to sign addenda to their employment contracts, through which they would have agreed to a 25-30% salary reduction, while the ASF board's revenues remained intact.

Francesca Andreescu submitted to Parliament a complaint regarding the direct and indirect interventions of ASF Vice President Sorin Mititelu in favor of a surety insurance company.

• ASF, without revised procedures, two years after the deadline for their preparation

According to the open letter signed by Mihai Mihăilă, president of the Association of "Whistleblowers in the Public Interest", "the group of whistleblowers has become the most vulnerable and disadvantaged category of people in Romania because 100% of whistleblowers are harassed immediately after making public interest warnings, with the aim of being eliminated from the entities where they work, either to favor the perpetrators, or to take revenge for the help given to justice or to hide or deny the facts and actions/situations reported".

The cited document shows that the ASF did not comply with the provisions of art. 22 of Law 361/2022 on the prohibition of retaliation against whistleblowers and the Authority's management is requested to comply with the provisions of that article regarding the disciplinary investigations initiated against Cristian Munteanu and Francescă Andreescu.

The association also points out that on the official website of the ASF there is no "information section on the rights of whistleblowers in the public interest and the internal reporting channel", although art. 33 of Law no. 361/2022, obliges the public institution to review its internal procedure regarding public interest whistleblowing by February 5, 2023. Also by the same date, that is, two years ago, the ASF should have reviewed its procedures or regulations that contravene the provisions of Law 361/2022, or that restrict the rights and protection conferred on persons who formulate a public interest whistleblowing, to establish an internal reporting channel (according to art. 9 and 10 of Law no. 361/2022) and to carry out an internal information activity regarding these aspects as well as the right of employees to formulate reports according to Chapter IV of the law, through external reporting channels or according to Chapter V, in the form of public disclosures.

In relation to all these aspects above, we also wanted to know the opinion of those at ASF, an institution to which we sent an official request immediately after the publication of the open letter, but which had not responded to us by the time of closing the edition.

• ANI, CNCD and the People's Advocate, impassive in the face of harassment of whistleblowers

What is worse is that, although whistleblowers have the legal right to address external channels directly or to make public disclosures, they become victims of subtle punitive mechanisms, disguised as "evaluations" or "internal disciplines".

Contacted by the BURSA newspaper, Mihai Mihăilă, president of the Association of "Whistleblowers in the Public Interest" told us: "After whistleblowers make their case known, many lawsuits appear in the respective institutions. Public officials who dare to speak out are harassed for years in a row - three, four, even seven years. The case of Mrs. Camelia Roiu is emblematic: the best example of a whistleblower in Romania, harassed for years for her revelations regarding hospital infections in the context of the Colectiv tragedy, which completely discourages other potential whistleblowers. Instead of having courage, they continue to sign documents that hide irregularities. We have also sent addresses to the Presidential Administration. Testing public officials is essential, because otherwise the best end up victims of institutional bullying. The law is good, I have been through a lot to be able to say this. But it should also go through a few trials, so that we can see how it is applied. From Unfortunately, the judiciary does not comply with Law 361/2022. We have proposed legislative amendments to the Senate, to the Legal Committee. From our point of view, over 90% of the law is well written - the problem is that the courts do not apply it. No whistleblower in the country has so far obtained a favorable decision regarding the protection measures provided for in Article 20 of Law 361. Whistleblowers are simply sacrificed".

He also told us that neither the National Integrity Agency, nor the Government, nor the Ministry of Justice, nor the High Court, nor the People's Advocate, nor the National Council for Combating Discrimination are very supportive of whistleblowers in our country.

Mihai Mihăilă specified: "Those from ANI do not collaborate with us. For three years, we have not received any response. I sent two addresses to the Ministry of Finance, without receiving a response. We also had discussions with the Prime Minister's Office, as well as the Ministry of Justice. We requested that the High Court of Cassation and Justice initiate an appeal in the interest of the law, regarding the protection of whistleblowers, according to the presidential ordinance, which could suspend the repressive measures against them. So far, however, no one has responded to our request. I hope that, after the last discussion held at the office of the Minister of Justice, through his advisors, we obtained a promise. If that appeal is made, it will be an enormous victory. (...) I have provided numerous examples in the Senate, and the clearest ones show that improvements are needed at the level of internal institutions. We must start with the internal institutions - CNCD, the People's Advocate. Unfortunately, CNCD reacts extremely slowly - an investigation takes two years. Although they gave a favorable verdict in a recent case, which is encouraging."

He showed that, under these conditions, people leave and their colleagues give up becoming whistleblowers. "We received dozens of official responses that clearly show: whistleblowers in Romania are the most disadvantaged category at the moment - almost 100% of them," Mihai Mihăilă mentioned.

He also told us that, although at first the authorities acted well, later pressure intervened - "most likely political from the management of the institutions, pressure that creates pressure on the employees, who end up keeping quiet."