05 May Report Wrongdoing and be Protected: Is that Possible? The New EU Whistleblowing Directive Promises So!
Whistleblowers play an essential role in exposing corruption and other crimes that threaten the public interest. By disclosing information about such irregularities, whistleblowers have over time helped save countless lives and billions of euros from public funds. However, whistleblowers often put their personal wellbeing at high risk and may be fired, prosecuted, blacklisted, arrested, threatened, or, in extreme cases, even killed.
Protecting whistleblowers from unfair treatment, including retaliation and discrimination, can encourage citizens to report wrongdoing and irregularities, which increases the likelihood that injustices will be prevented, exposed and punished. Whistleblower protection is, therefore, a key tool in strengthening the effective implementation of existing legislation.
In May 2016, in the midst of the Luxleaks scandal that rocked Europe, the European Party of Greens submitted a draft Whistleblowing Directive to the European Parliament, based on the legal provisions of the European Union Treaty on the protection of working conditions. At the same time, the European Parliament Special Committee on Tax Affairs set a June 2016 deadline for the adoption of relevant legislation.
In April 2018, the European Commission, which has the sole competence to initiate legislation within the European Union, published a draft Whistleblowing Directive, which was finally adopted in October 2019. The proposed legislation, with a legal basis in most sectoral provisions of the Treaty on European Union, aims to provide better protection to whistleblowers throughout the European Union and to provide both public and private organisations with greater legal certainty in terms of rights and obligations. So far, the countries of the European Union have different levels of protection.
In the following lines, a critical evaluation of the EU Whistleblowing Directive shall be attempted, for the purpose of allowing Member States to close the loopholes when transposing it into national law.
Positive Aspects of the EU Whistleblowing Directive
• Covers both the public and the private sector.
• The offenses covered include not only illegal activities, but also abuse of law, which is defined as acts or omissions that do not appear to be formally illegal; however they prevent the achievement of the purpose pursued by the law.
• Covers a wide range of potential whistleblowers, including people outside the traditional employee-employer relationship, such as consultants, contractors, volunteers and job seekers.
• Provides full protection against retaliation, including temporary protection and protection in court proceedings.
• Establishes a wide range of public and private bodies to establish internal grievance mechanisms.
• Allows in some cases public reporting.
• Provides for the imposition of sanctions on persons who obstruct or attempt to obstruct the filing of reports, retaliate against whistleblowers, including malicious proceedings and violate the duty of confidentiality of the whistleblower’s identity.
• Provides legal and financial assistance to whistleblowers, which is an essential element for their effective protection
• Encourages Member States to adopt more favourable provisions than those laid down in the Directive.
Recommendations for Improvements when Transposing the Directive
• The material scope should be extended as much as possible.
• Personal scope should be extended to include former employees and persons associated with a whistleblower or someone believed to be a whistleblower.
• The motives of a whistleblower who believes that he/she is providing true information should not be linked to the granting of protection.
• Employees must be able to report violations of the law directly to the competent authorities.
• The case of anonymous reporting should also be dealt with.
• Sanctions should be extended to all cases where the obligations arising from the Directive are not met.
• All public sector bodies should be required to establish internal grievance mechanisms.
The EU Whistleblowing Directive is certainly a brave step in the right direction. It remains to be seen, though, whether EU Member States shall opt for a formalistic transposition of the Directive or for compliance with best international standards and practices.
Dr. Damaskou Anna CFE, CAMS, CGSS, CIPP/E, CIPM
EIMF Industry Expert