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.
MEP Virginie Rozière, European Parliament Rapporteur for the proposed whistleblower protection directive, yesterday, received petitions with more than 280,000 signatures, gathered by coalitions of trade unions and NGOs, which she handed over to the Council of the European Union at the final scheduled trilogue in the Parliament on Monday 4 March.
Today trade unions and NGOs will deliver two petitions gathering over 280,000 signatures supporting the European Parliament’s demands for an improved directive.
In an open letter to the European Council, Commission and Parliament seven well-known European whistleblowers speak out for changing the directive and removing barriers for safe reporting.
The EU Whistleblowing Directive is an idea whose time has come. New whistleblower protection laws in Ireland, France and the Netherlands showed consensus was building among EU Member States on the need to protect and enable workers to speak up about wrongdoing in the workplace.
The directive must be changed to that whistleblowers can report not only a special internal whistleblowing channel, but also to managers or law enforcement.
In an open letter 81 signing organisations urge the EU Council to adopt the Parliament’s position on reporting channels. The whistleblower protection directive is currently in trilogue. The signatories express serious concerns about the reporting channels regime in the Council and Commission positions in these negotiations.
A few weeks left to improve the whistleblower protection directive. Make your voice heard and sign the new petition for strong whistleblower protection!
The Romanian Presidency will play a key role is securing a robust whistleblower protection Directive, argues R. Nicolae, of Syene. He believes that Romania has a number of strengths which will support it leading the negotiations, as the whistleblower protection file moves from the Council to trilogue.
According to the Legal Counsel of the Danske Bank Whistleblower, S. Kohn, the Howard Wilkinson case clearly demonstrates that the EU Whistleblower Directive urgently needs to be revised to protect the right to report directly to law enforcement agencies and regulatory authorities.
The Duty Speech Loophole: how the EU Whistleblower Directive could backfire against its own objectives
Tom Devine, Legal Director of GAP explains why a series of technical contradictions within the EU draft directive need to be resolved, or the legislation could backfire and actually work against whistleblowers.