Petitioning for a better whistleblower protection directive
The clock is ticking, there are less than two months remaining to make sure the European Union’s whistleblower protection directive, actively encourages whistleblowing and fully protects those reporting crimes, corruption and institutional wrongdoing. Eurocadres has joined forces with WeMove.EU to petition for much needed improvements to the directive, if it is not to place additional burdens on whistleblowers, which could in fact discourage reporting. Sign the petition here.
As the EU’s whistleblower protection directive comes close to the end of its legislative journey, trade unions and NGOs continue to actively lobby for essential changes to the directive, to ensure it meets its purpose of encouraging reporting and protecting whistleblowers. One of the main problems with the recently adopted Council position is the insistence that whistleblowers report internally, before reaching out to law enforcement agencies and regulatory authorities. Removing this clause on mandatory reporting is a key demand of the new petition. Experts largely agree that this measure will chill potential whistleblowers enthusiasm for reporting, if they might be forced to report to those within their organisations, who are complicit with the wrongdoing.
The role of Trade unions
The Council’s position is unclear on the role of trade unions, in the whistleblowing process. The proposals coming out of Council, supported by the Commission, firstly insist on internal reporting, through a dedicated channel within organisations, only then followed by external reporting to a law enforcement or regulatory authorities and lastly comes the right to report publicly to the media for example. As the proposals stand whistleblowers may not be in a position to safely seek advice or support from their trade union, as they begin that first stage of internal reporting. The petition insists that this anomaly, must be dealt with.
The directive will cover not only workers, but also shareholders, volunteers and persons in management bodies. In particular NGOs who provide advice to whistleblowers demand that it should also be safe to seek advice from NGOs.
No extra test
The council proposes a new requrement that the reported information must be lawfully acquired. Any additional requirements on whistleblowers have a chilling effect. This particular one risks court proceedings to be about the acquisition of the information. In the LuxLeaks case the court focused a lot of its attention on how documents which Antoine Deltour disclosed had been aquired. Such a requirement would have meant that the likes of Antoine Deltour would not be protected by the directive.
Blow the whistle!
Petition to the European Council, Parliament and Commission
Whistleblowers in the EU must be protected
We call on you to agree on a strong whistleblower protection directive which includes
- the right to seek advice from trade unions and NGOs
- the right to be represented by a trade union
- the right to contact law enforcement directly
- safe disclosure to journalists
- safeguards for existing national whistleblower laws
- a broad whistleblower definition, with no extra test on how the reported information was acquired
Why is this important?
It is thanks to whistleblowers that the public found out about scandals like Lux-Leaks, the Panama and Paradise papers on tax evasion, Dieselgate on environment, as well as many scandals involving food safety, health and elderly care.
The fight for a strong protection for whistleblowers in the EU has been going on for many years. Trade unions and civil society have worked together with the European Parliament, demanding that the European Commission should act. After long and persistent lobbying and campaigning we finally got the European Commission to propose a directive on whistleblower protection in April 2018. While it marked a good starting point for discussions, improvements were clearly necessary. The European Parliament has improved the text and it is now up to their negotiations with the Council and Commission to agree on a good final text which should include the following:
- the right to seek advice from a trade union and NGO. The directive must guarantee the right to consult with trade unions and civil society organisations without losing the protection.
- the right to be represented by a trade union. Ensuring that a trade union can represent the whistleblower.
- the right to contact law enforcement directly. Whistleblowers must be able to report directly to law enforcement agencies and competent authorities without risking losing protection. Not allowing it could lead to destruction of evidence and cover-ups when those responsible are alerted by internal reports. In short, an obstruction of justice. This means that the so called mandatory internal reporting in the directive must be deleted.
- safe disclosure to journalists. Ensuring that whistleblowers safely can turn to journalists strengthens investigative journalism and is good for democracy.
- safeguards for existing national whistleblower laws. This means adding a “non-regression clause”, a clause which guarantees that the directive cannot be used as an excuse to worsen already existing whistleblower protection laws and procedures.
- a broad whistleblower definition, covering the likes of Antoine Deltour, LuxLeaks. This means that there should not be any extra test on how the information was acquired.
Council legal opinion must not be used to delay completion of whistleblower protection legislation
The European Council has a responsibility to protect the positive amendments made to the proposal for a whistleblower protection directive adopted by the European Parliament’s legal affairs committee last month.
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.
The now famous Danske Bank Whistleblower, Howard Wilkinson, testified before the TAX3 European Parliament Committee last week. Wilkinson reported suspicious financial transactions at Danske Bank’s Estonia branch, where he worked until 2014.
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.