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

‘Inside’ the European Parliament’s Closed Reading Rooms: Transparency in the EU

Dr Vigjilenca Abazi

Assistant Professor of European Law

Maastricht University

  

What do documents about negotiations of the Transatlantic Trade and Investment Partnership (TTIP), oversight of the EU’s Food Safety Authority or Tax-Justice have in common? In order to access these documents, (selected) Members of the European Parliament are requested to attend closed reading rooms. This blog post discusses how an exception to open parliamentary oversight is increasingly becoming a regular institutional practice and questions its spillover effect on requests for public access to documents.

Background

As the wording suggests, ‘closed reading rooms’ are meetings that take place behind closed doors with the purpose of reading certain sensitive documents, particularly EU official secrets. Documents are distributed at the beginning of the meeting and collected again at the end; documents may not be copied by any means, such as photocopying or photographing; no notes may be taken; and the minutes of the meeting cannot make any mention of the discussion of the item containing official secrets (Art. 6, Interinstitutional Agreement between the European Parliament and the Council of 12 March 2014).


Closed reading rooms are an exception to generally open meetings and discussions of the European Parliament. This practice emerged with the introduction of rules on EU official secrets and specifically the Interinstitutional Agreement of 2002 between the European Parliament and the Council concerning European Parliament’s access to sensitive information in the field of security and defence policy (see Art. 3 and Annex, second paragraph). The rationale of what this Agreement called ‘secured room’ was to make sensitive documents available for purposes of parliamentary oversight without ‘risks’ of public disclosure or possible leaks, i.e. unauthorised disclosure of documents.

Initially, this practice was mostly confined to the area of security and defence for documents classified as official secrets. Yet, with the expansion of rules on EU official secrets to areas well beyond security and defence to ‘activities in all areas that require handling classified information’ via a Council Decision on official secrets in 2013, the use of closed reading rooms by MEPs to access sensitive documents became an increasing practice.

Closed Oversight

At first glance, closed reading rooms, or more generally ‘closed oversight’ (as I have elaborated in-depth in this recent article), might seem an inevitable institutional practice when dealing with official secrets and certainly this is not an issue confined to the EU, but a much wider world practice of oversight (e.g. see here for a recent report). Yet, the following salient questions arise:

Is it possible to keep account of closed oversight?

Accountability does not stop with executive institutions. It is equally important that oversight actors, such as the European Parliament, have appropriate institutionalised processes of keeping track of documents that have been reviewed, that meeting minutes reflect at least in some broad sense what has been discussed when official secrets are involved, or any other means that leave a traceable mark of institutional oversight having taken place. As the current procedure of getting access to official secrets stands (see above section on ‘background), it seems that keeping (some sort of public) track of the oversight process is deeply challenging.

To what extent intra/inter institutional rules alter primary law oversight architecture?

Another disconcerting aspect to closed oversight is the way it has been developed, i.e. mostly through rules of procedure and inter-institutional agreements. Indeed, EU institutions in line with primary law have clear prerogatives to make arrangements for their cooperation and to set out their rules of procedure (see respectively Art. 295 TFEU, Art. 240(3) TFEU). However, it remains to be more critically discussed whether this route of designing how oversight will take place in practice follows the constitutional principle of openness in the EU in full spirit and to what extent it alters the process of oversight in EU.

Does recent case law offer insights on closed oversight? 

In a series of recent cases, the CJEU has clarified the relevance, scope and procedural aspects of institutional access to information by the European Parliament in the context of international negotiations (see previous EU Law Analysis blogs here and here). However, case law does not address the manner in which these documents should be read and importantly, primary law only refers that accessibility to information is ‘immediately and fully’ (see Art. 218(10) TFEU) with no further details as to how access ought to be organised.

What about public deliberation?

A crucial role for the European Parliament as the direct representative of citizens (Art. 10 TEU) is to provide a link between what takes place in Brussels and what citizens know. But actively creating space for public deliberation and prompting public debate on issues that are overseen behind closed doors remain yet to be delivered by the European Parliament.

Spillover Effect Even to Public Access to Information?

Recently four MEPs filed a public access request to the European Food Safety Authority to gain access to unpublished studies determining the carcinogenicity of glyphosate on basis of which EFSA made its assessments. EFSA was not immediately open to provide public access to these studies. Remarkably, in its response, EFSA offers a ‘physical reading room’ for the MEPs to read these studies and reasons that the owners of these studies seem open to sharing the studies in this manner.

In other words, the EFSA is offering the MEPs a closed room to read the studies as a response to a public access request that should result in making the documents public, not only for these four MEPs but also for the general public. It should be stressed that the EU public access to documents regime does not foresee ‘physical reading rooms’ and indeed that would be contrary even to its rationale of granting the widest possible public access to documents. It seems that in the eyes of EFSA, a closed reading room offers a ‘solution’ to the potential unwillingness of the authors of these studies to disclose the documents. Yet, this possibility is also completely outside the legal contours of public access to information. Legally, authors of these studies do not have a veto on whether the studies would be public and certainly do not have prerogatives to decide how public access to documents should be organised in practice.

The EFSA response is ongoing and the four MEPs have still not received access to all requested documents. Yet, beyond this case, is the practice of closed reading rooms expanding not only to institutional access but also to public access to documents? This is a issue that we should continue to examine more closely. 

Barnard & Peers: chapter 8

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