Tuesday, 23 April 2019

New EU Directive on Whistleblower Protection




Vigjilenca Abazi, Assistant Professor of EU Law, Maastricht University & Fellow, Yale Law School

*The author is the co-author of the model Directive presented at the European Parliament in May 2016.


With an overwhelming majority, the European Parliament on 16 April voted in favour of the new law to protect whistleblowers in the European Union. The Directive sets leading standards and has become a prime example of how a concerted effort by civil society – NGOs, trade unions, journalists, scholars, and whistleblowers – together with the European Parliament can lead to progressive legislation and enhance tools that safeguard the rule of law in Europe.  

‘Promoting Gold Standard Protections’ 

Prior to this Directive, whistleblowers faced a paradoxical situation in Europe: they would be prosecuted at the national level, whilst celebrated for ‘promoting European values’ at the EU level, as in the case of LuxLeaks whistleblower Antoine Deltour. The European Parliament called upon the Commission to propose legislation since 2013, yet the Commission had rejected the calls noting lack of EU competences to legislate. The Council was also sceptical, as many member states do not have national laws in place. A key turning point was the presentation of the model Directive promoted by the Greens & European Free Alliance at the European Parliament in 2016. Protecting whistleblowers became inevitable after the EU witnessed the murder of two journalists, Daphne Galizia in Malta and Jàn Kuciak in Slovakia, who exposed corruption in their respective countries.
     
The Directive provides significant improvement in protecting whistleblowers and moves Member States closer toward an advanced legal framework. Indeed, as noted by the world’s leading NGO for whistleblowing, the Whistleblowing International Network, the EU ‘has raised the bar for all EU governments to lead the world in promoting gold standard protections for whistleblowers’ or as Commissioner Jourová remarked these ‘rules will be a game changer’.

The Whistleblower

The Directive covers workers in the public and private sector. More specifically, it includes civil servants, the self-employed, shareholders, management, administrative or supervisory bodies, volunteers, paid or unpaid trainees, contractors, subcontractors and suppliers, individuals disclosing breaches during a recruitment process and former workers. The Directive does not encompass EU officials. For a worker to be able to invoke the protection granted by this Directive, the worker must have reasonable grounds to believe that the information reported was true at the time of reporting and that the information fell within the scope of the Directive.

Wide Ranging Policies

The Directive has a wide scope of protection not only in terms of who can be a whistleblower, but also in terms of policies that it covers. The Commission drew from many different Treaty provisions to ensure that reporting gaps are not created, although the disclosure should be related to a breach or abuse of EU law in any of the following issues: public procurement, financial services, prevention of money laundering and terrorist financing, product safety, transport safety, protection of the environment, radiation protection and nuclear safety, food and feed safety, animal health and welfare, public health, consumer protection, protection of privacy and personal data and security of network and information systems, protection of the financial interests of the Union, breaches of internal market rules, including competition and State aid rules or tax avoidance issues. Strictly national policies are not covered and neither are violations of worker’s rights and working conditions. The latter exclusion will be reviewed in future.

Disclosure Channels

One of the most contested points since the Commission proposed the Directive last year is whether protection will be made conditional on the whistleblowers first reporting internally. The Commission proposal set out a three tier reporting process, and it envisaged a mandatory disclosure first and foremost internally in the organisation. Not only was such a proposal counter to the case law of the European Court of Human Rights on the issue, but also it would have caused more harm than good, especially in Member States that have legislation in place and do not demand such strict channels.

Indeed, the role of civil society cannot be stressed enough in this regard, as it played an invaluable role in making sure that the European Parliament amended the mandatory internal reporting. EP rapporteur Rozière understood these concerns and ensured that this piece of EU legislation meets the adequate standards rather than create uncertainty in legal protection. Making this her “biggest” priority, she succeeded in defending whistleblowers to choose the best means available for disclosure. The adopted Directive foresees that whistleblowers would be protected for reporting internally or for reporting directly to regulators and competent authorities. Reporting to the public still has strings of conditions, but if there were a risk of retaliation or low prospect of the reported breach to be addressed, whistleblowers would be protected if they reported to the public. 

Applicable to Businesses and Public Administration

The Directive applies both in the private and public sector, including to local authorities. Channels for reporting must be set up by companies with more than 50 employees. Local authorities that have less than 50 employees or municipalities with less than 10,000 inhabitants are exempt from the obligation to set up channels of reporting. More guidance on how local and regional authorities should ensure protection for whistleblowers could nevertheless be found in a Resolution of the Council of Europe, which was also voted with sweeping majority earlier in April 2019 by the Congress of Local and Regional Authorities, laying out in detail recommendations and the most recent data on the matter. 

Implementation and Practice

A good law in the books is of little use if its implementation in practice falls short. It will be of outmost importance that the Member States transpose this Directive in its full spirit and even push higher standards where possible. Member States will have two years to transpose the Directive to national law and civil society will continue to monitor closely and possibly facilitate national debates in how whistleblowers should be protected. After the scandals of LuxLeaks, PanamaPapers and Cambridge Analytica, citizens are becoming increasingly aware that whistleblowers play a crucial role in exposing wrongdoing and should not pay a personal price for defending public interest. National governments should take note of this public opinion and implement the EU Directive to its fullest.

Photo credit: The Guardian Nigeria

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