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
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.
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.
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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