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.
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.