What can the EU learn from Romania’s experience implementing whistleblower legislation?
It was a pleasure and a honour to present my opinions on ‘Romania’s key role in securing EU whistleblower protection’, at the European Parliament on the 9th of January, at the beginning of the Romanian Presidency of the European Council.
It is important to begin by stressing the key role whistleblowers play, in civil society, in supporting the rule of law in Europe. Without meaningful protection for whistleblowers there is the danger that citizens will be oppressed by the powerful and become increasingly afraid to stand-up and be counted, fearing job repercussions and abuse by the unscrupulous in power.
The Romanian Presidency's role
I am convinced that the Romanian Presidency can play an important role in securing the adoption of a strong whistleblower protection Directive. Romania has a number of strengths in leading the negotiations for whistleblowers protection and shepherding the dossier through the Council and trilogue. Romania has good internal technical expertise at the Ministry of Justice on this topic; the Government is committed to securing a final whistleblower protection deal, as part of a successful presidency.
I am convinced that the Romanian Presidency can play an important role in securing the adoption of a strong whistleblower protection Directive.
We have experienced civil society organisations, who actively contributed to the framing of our legislation and journalists, who continue to support whistleblowers and publicise key cases. Romania also has some promising case-law, on this subject.
It is good to see that reaching a final whistleblowers agreement is mentioned in the Romanian Presidency Programme. And the Romanian permanent representative office has confirmed it will do all that it can, to get a final agreement, before the end of the current European Parliament mandate.
Welcoming the European Parliament's report
Regarding the proposed EU whistleblowers directive, I welcome the report adopted by the European Parliament’s legal affairs committee (JURI), on the 22nd of November. The parliamentary report is a significant improvement on the Commission’s original proposal.
Whistleblowers should have the right to choose the reporting channel which they consider most efficient and appropriate.
The Council has now adopted its General Position, so in the coming days the whistleblowing file will move to trialogue, the three-way negotiation between the European Commission, and the European Parliament. Issues such as mandatory reporting, trade union consultation and representation and including a non-regression clause, still have to be dealt with. In my opinion, whistleblowers should have the right to choose the reporting channel which they consider most efficient and appropriate.
Trade Unions role in offering advice and representation
In many real-life cases, trade unions are the only organisations where whistleblowers can seek advice, support and comfort. Nominating trade unions as legitimate third party to provide advice and receive reports, within the Directive, acknowledging their independence and granting them protection is a major step forward.
I believe that the non-regression clause is essential in keeping a high-level of protection for whistleblowers, in those Member States that have a general legislation on whistleblowers protection as, for instance, Romania. Without the non-regression clause, the risk of lowering protection standards, due to internal political struggles is very high. On these key issues, Romania has a lot to offer, during trialogue, as we can extensively refer to our internal legislation and its unfolding practice.
In many real-life cases, trade unions are the only organisations where whistleblowers can seek advice, support and comfort.
In comparing our Romanian whistleblowers legislation and the proposed EU directive, the Romanian law states that breaches of law may be reported alternatively or cumulatively to ‘the superior of the person in breach of the legal provision’; the leader of the public organisation; disciplinary committees; judicial bodies; the relevant competent bodies tasked with investigating conflicts of interests and incompatibilities; parliamentary committees; the media; trade unions, professional, or employers’ associations and non-governmental organisations.
Mandatory reporting remains problematic
Currently the EU proposal still contains mandatory reporting, first using internal channels and procedures. Only moving to public disclosure after internal and external channels have been exhausted, with several exceptions. The European Parliament supports a horizontal system with internal, external and public reporting all being given equal status and protection, at any point in a reporting.
Romanian law also provides protection during disciplinary proceedings. If the whistleblower feels that disciplinary action is a form of retaliation for a whistleblowing act, he/she may submit a request to the disciplinary committees, asking to invite the media and/or a representative of a trade union or of their professional association to the disciplinary proceedings. Failure to grant access to third parties to disciplinary proceedings, can lead to nullification of the disciplinary report. Sometimes full transparency is the only antidote against abuse.
The negotiating parties need to ensure that the whistleblowers Directive is a functional tool for all stakeholders.
In Conclusion, during the upcoming trialogue, the negotiating parties need to ensure that the whistleblowers Directive is a functional tool for all stakeholders. They must safeguard its relevant in terms of uncovering law-breaking, government irregularities and financial corruption. It must not become an additional burden for whistleblowers or those who assist them.
Learning from Romania's whistleblowing legislation
A lesson worth learning from Romania's whistleblowing legislation and practice. It is only when public and private organisations are legally discouraged and punished for retaliating, that citizens will feel safe to report wrong-going. By giving potential whistleblowers the maximum number of options through which to report, increases the chances of criminal activity and corruption being uncovered, which surely is the main point of the EU whistleblowers Directive.
Today, on World Whistleblowing Day 2021 – less than 6 months before the deadline to transpose the Directive – we highlight key developments in EU countries since the publication of the report.
The partnership of Eurocadres, the Whistleblowing International Network (WIN) and Transparency International EU is delighted to announce the development and launch of EU Whistleblowing Monitor, a new online platform to monitor transposition and implementation of the EU Directive on Whistleblowing (2019/1937) across Europe.
Seven months remains for EU member states to transpose the whistleblower directive into national legislation.
Can transposing the Whistleblower Protection Directive be done on time? Maybe, but not at the cost of transparency and inclusiveness
EU governments were given two years to bring their national whistleblowing frameworks in line with the EU Directive on Whistleblower Protection.
Transposition of the Whistleblower Protection Directive is a chance to ensure that people can expose abuses safely across the European Union – but EU nations might be letting the opportunity pass us all by.
The EU Whistleblowing Meter tracks the progress of transposition in each country.
Professor Wim Vandekerckhove from University of Greenwich has analysed the work of the platform in reaching a directive proposal on the protection of whistleblowers.
EVENT – 23 February, 14:00 – 15:30 (CET)
What should be the role of trade unions in whistleblowing? Which internal arrangements, should be in place to establish a culture which promotes whistleblowing?
On World Whistleblowing Day, 23 June, the Whistleblowing International Network along with its many partners and colleagues across Europe are launching the EU Whistleblowing Meter