Be prepared for transposition
The whistleblower directive proposal was adopted by the European Parliament 16 April in the first reading face. Now the only thing left is the final rubber-stamping and publication of the proposal in the Official Journal of the EU. Once that is done and dusted we will be moving to the next face: transposition of the directive. Trade unions have the opportunity to influence how the directive will play out on national level.
There are four major issues for trade unions to fix during the two-year transposition period:
1. Fix trade union rights
- The right to be represented by a trade union must be included.
2. Fix the scope
- Workers rights, discrimination and occupational health and safety must be give right to protection when reporting. Or even better: cover breaches in all areas by a horizontal protection.
- Make sure to include national legislation, not only EU law.
3. Fix the internal reporting
- Reporting internally to a line manager, supervisor, or the HR-department must grant protection and not only using the
dedicated internal reporting channel. This is not clear enough in the directive.
4. Fix the criminal-offence trap
- National law determines if reporting persons are liable for “selfstanding criminal offences”. It must be safe to use documents at the work-place for a report without risking criminal liability.
Who are protected by the directive?
The directive protects persons who report in a work-related context in both the private and public sector. The list of who are protected is open but includes more than employees, such as for example self-employed, unpaid volunteers, shareholders and subcontractors. Protection is granted also when in a recruiting process for a new job or after a job has ended. Third persons, such as relatives and colleagues and ‘facilitators’ who give confidential assistance to the whistleblower are protected as well.
What can you blow the whistle on and be protected?
The reporting person must have reasonable grounds to believe that the information reported was true at the time of reporting and that the information falls within the scope of the Directive.
The scope includes breaches in 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 and corporate taxation.
Not only unlawful acts are included in the scope but also acts and omissions that go against the objective of a Union law.
European institutions have been seen as being too close to lobbyists and vested interests. It would be a real shame if member states’ representatives were now seen as acting against public concerns, in resisting a whistleblower protection law which encourages the reporting of crime and wrongdoing, said Virginie Rozière MEP.
The now famous Danske Bank Whistleblower, Howard Wilkinson, testified before the TAX3 European Parliament Committee last week.
The WhistleblowerProtection.EU platform is celebrating a job well done, after the Legal Affairs Committee of the European Parliament passed a strengthened whistleblower protection directive, on the 20th of November.
The EU’s whistleblower protection directive, is in a state of flux, key political battles are being fought right now. The whistleblower proposals as they currently stand, have several Achilles heels tucked into the directive’s fine print.
The LuxLeaks revelations were unprecedented not only in the level of corruption they uncovered, but also in the vast array of journalists from different media organisations working together to uncover corruption.
Many of the biggest whistleblower disclosures of recent years have been international in nature – LuxLeaks and the Panama Papers in particular. As pointed out by the Greens in the European Parliament, there is a general European public interest that often supersedes the national interests of a single member state.
Protection for whistleblowers in Europe is currently a patchwork affair. Some countries, such as Ireland having robust laws in place, while others, such as Cyprus, have practically none. 16 EU member states have specific laws or provisions, and 10 of those adopted their laws or in the past 5 years.