Go back to the Europarl portal

Choisissez la langue de votre document :

  • bg - български
  • es - español
  • cs - čeština
  • da - dansk
  • de - Deutsch
  • et - eesti keel
  • el - ελληνικά
  • en - English (Selected)
  • fr - français
  • ga - Gaeilge
  • hr - hrvatski
  • it - italiano
  • lv - latviešu valoda
  • lt - lietuvių kalba
  • hu - magyar
  • mt - Malti
  • nl - Nederlands
  • pl - polski
  • pt - português
  • ro - română
  • sk - slovenčina
  • sl - slovenščina
  • fi - suomi
  • sv - svenska
REPORT     ***I
PDF 3323kWORD 604k
27 November 2018
PE 623.965v02-00 A8-0398/2018

on the proposal for a directive of the European Parliament and of the Council on the protection of persons reporting on breaches of Union law

(COM(2018)0218 – C8-0159/2018 – 2018/0106(COD))

Committee on Legal Affairs

Rapporteur: Virginie Rozière

Rapporteurs for the opinion (*):

Miguel Viegas, Committee on Economic and Monetary Affairs

Maite Pagazaurtundúa Ruiz, Committee on Civil Liberties, Justice and Home Affairs

      (*)  Associated committees – Rule 54 of the Rules of Procedure

DRAFT EUROPEAN PARLIAMENT LEGISLATIVE RESOLUTION
 EXPLANATORY STATEMENT
 OPINION OF THE COMMITTEE ON LEGAL AFFAIRS ON THE LEGAL BASIS
 (*) OPINION of the Committee on Economic and Monetary Affairs
 (*) OPINION of the Committee on Civil Liberties, Justice and Home Affairs
 OPINION of the Committee on Budgetary Control
 OPINION of the Committee on Employment and Social Affairs
 OPINION of the Committee on the Environment, Public Health and Food Safety
 OPINION of the Committee on Culture and Education
 OPINION of the Committee on Constitutional Affairs
 PROCEDURE – COMMITTEE RESPONSIBLE
 FINAL VOTE BY ROLL CALL IN COMMITTEE RESPONSIBLE

DRAFT EUROPEAN PARLIAMENT LEGISLATIVE RESOLUTION

on the proposal for a directive of the European Parliament and of the Council on the protection of persons reporting on breaches of Union law

(COM(2018)0218 – C8-0159/2018 – 2018/0106(COD))

(Ordinary legislative procedure: first reading)

The European Parliament,

–  having regard to the Commission proposal to Parliament and the Council (COM(2018)0218),

–  having regard to Article 294(2) and Articles 16, 33, 43, 50, 53(1), 62, 91, 100, 103, 109, 114, 168, 169, 192, 207 and 325(4) of the Treaty on the Functioning of the European Union and Article 31 of the Treaty establishing the European Atomic Energy Community, pursuant to which the Commission submitted the proposal to Parliament (C8-0159/2018),

–  having regard to the opinion of the Committee on Legal Affairs on the proposed legal basis,

–  having regard to Article 294(3) of the Treaty on the Functioning of the European Union,

–  having regard to the reasoned opinion submitted, within the framework of Protocol No 2 on the application of the principles of subsidiarity and proportionality, by the Swedish Parliament, asserting that the draft legislative act does not comply with the principle of subsidiarity,

–  having regard to the opinion of the Court of Auditors of 26 September 2018(1),

–  having regard to the opinion of the European Economic and Social Committee of 18 October 2018(2),

–  After consulting the Committee of the Regions,

–  having regard to Rules 59 and 39 of its Rules of Procedure,

–  having regard to the report of the Committee on Legal Affairs and the opinions of the Committee on Economic and Monetary Affairs, the Committee on Civil Liberties, Justice and Home Affairs, the Committee on Budgetary Control, the Committee on Employment and Social Affairs, the Committee on the Environment, Public Health and Food Safety, the Committee on Culture and Education, and the Committee on Constitutional Affairs (A8-0398/2018),

1.  Adopts its position at first reading hereinafter set out;

2.  Calls on the Commission to refer the matter to Parliament again if it replaces, substantially amends or intends to substantially amend its proposal;

3.  Instructs its President to forward its position to the Council, the Commission and the national parliaments.

Amendment    1

Proposal for a directive

Citation 1

Text proposed by the Commission

Amendment

Having regard to Article 294(2) and Articles 16, 33, 43, 50, 53(1), 62, 91, 100, 103, 109, 114, 168, 169, 192, 207 and 325(4) of the Treaty on the Functioning of the European Union and Article 31 thereof,

Having regard to the Treaty on the Functioning of the European Union, and in particular Articles 16, 33, 43, 50, 53(1), 62, 91, 100, 103, 109, 114, 153 (1), (a), (b), and (e), 157(3),168, 169, 192, 207 and 325(4) thereof and to the Treaty establishing the European Atomic Energy Community, and in particular Article 31 thereof,

Amendment    2

Proposal for a directive

Recital 1

Text proposed by the Commission

Amendment

(1)  Persons who work for an organisation or are in contact with it in the context of their work-related activities are often the first to know about threats or harm to the public interest which arise in this context. By ‘blowing the whistle’ they play a key role in exposing and preventing breaches of the law and in safeguarding the welfare of society. However, potential whistleblowers are often discouraged from reporting their concerns or suspicions for fear of retaliation.

(1)  Persons who work for a public or private organisation or are in contact with it in the context of their work-related activities are often the first to know about threats or harm to the public interest which arise in this context. By ‘blowing the whistle’ they play a key role in exposing and preventing breaches of the law that are harmful to the public interest and in safeguarding the welfare of society. However, potential whistleblowers are often discouraged from reporting their concerns or suspicions for fear of retaliation. In this context, the importance of providing balanced and effective whistleblower protection is increasingly acknowledged both at European and international level. The purpose of this Directive is therefore to create a climate of trust that enables whistleblowers to report observed or suspected breaches of law and threats to the public interest and to enhance the exercise of freedom of expression and the freedom of the media enshrined in Article 11 of the Charter of Fundamental Rights of the European Union. It is important tohighlight that those freedoms are the cornerstone of investigative journalism and the principle of the confidentiality of sources of information.

Amendment    3

Proposal for a directive

Recital 2

Text proposed by the Commission

Amendment

(2)  At Union level, reports by whistleblowers are one upstream component of enforcement of Union law: they feed national and Union enforcement systems with information leading to effective detection, investigation and prosecution of breaches of Union law.

(2)  At Union level, reports and public disclosures by whistleblowers and investigative journalists are one upstream component of enforcement of Union law and policies: they feed national and Union enforcement systems with information, often leading to effective detection, investigation and prosecution of breaches of Union law, thus enhancing transparency and accountability.

Amendment    4

Proposal for a directive

Recital 2 a (new)

Text proposed by the Commission

Amendment

 

(2a)  All major scandals in the public eye since 2014, such as ‘LuxLeaks’ and ‘the Panama Papers’, came to light thanks to the actions of whistleblowers.

Amendment    5

Proposal for a directive

Recital 3

Text proposed by the Commission

Amendment

(3)  In certain policy areas, breaches of Union law may cause serious harm to the public interest, in the sense of creating significant risks for the welfare of society. Where weaknesses of enforcement have been identified in those areas, and whistleblowers are in a privileged position to disclose breaches, it is necessary to enhance enforcement by ensuring effective protection of whistleblowers from retaliation and introducing effective reporting channels.

(3)  Breaches of Union law may cause harm to the public interest, in the sense of creating significant risks for the welfare of society, and undermine citizens' trust in the Union's action. As whistleblowers are usually in a privileged position to disclose such breaches, and have the courage to report or disclose information in defence of the public interest, notwithstanding any personal and professional risk, it is necessary to enhance enforcement of Union law by ensuring effective protection of whistleblowers from retaliation and introducing effective, independent, confidential and safe reporting channels.

Amendment    6

Proposal for a directive

Recital 4

Text proposed by the Commission

Amendment

(4)  Whistleblower protection currently provided in the European Union is fragmented across Member States and uneven across policy areas. The consequences of breaches of Union law with cross-border dimension uncovered by whistleblowers illustrate how insufficient protection in one Member State not only negatively impacts on the functioning of EU policies in that Member State but can also spill over into other Member States and the Union as a whole.

(4)  Whistleblower protection currently provided in the European Union is fragmented across Member States and Union institutions, bodies, offices and agencies and is also uneven across policy areas. The consequences of breaches of Union law with cross-border dimension uncovered by whistleblowers illustrate how insufficient protection in one Member State not only negatively impacts on the functioning of EU policies in that Member State but can also spill over into other Member States and the Union as a whole.

Amendment    7

Proposal for a directive

Recital 4 a (new)

Text proposed by the Commission

Amendment

 

(4 a)  Article 33 of the United Nations Convention against Corruption, to which the Union and its Member States are parties, clearly stipulates the need for appropriate legal measures to provide protection against any unjustified treatment for any person who reports in good faith and on reasonable grounds to the competent authorities any facts concerning offences established in accordance with that Convention.

Amendment    8

Proposal for a directive

Recital 4 b (new)

Text proposed by the Commission

Amendment

 

(4b)   In order to facilitate public disclosures and establish an open culture of reporting, the conditions for public disclosures should be in line with the Council of Europe Recommendation CM/Rec(2014)7 on the protection of whistleblowers. The media should by no means be hindered in exposing any wrongdoing and thereby fulfilling their democratic role.

Amendment    9

Proposal for a directive

Recital 5

Text proposed by the Commission

Amendment

(5)  Accordingly, common minimum standards ensuring effective whistleblower protection should apply in those acts and policy areas where i) there is a need to strengthen enforcement; ii) under-reporting by whistleblowers is a key factor affecting enforcement, and iii) breaches of Union law cause serious harm to the public interest.

(5)  Accordingly, common minimum legal standards ensuring effective whistleblower protection with a general and comprehensive approach should apply in all Union and national acts and policy areas where i) there is a need to strengthen enforcement; ii) under-reporting by whistleblowers is a key factor affecting enforcement, and iii) breaches of Union or national law cause serious harm to the public interest.

Amendment    10

Proposal for a directive

Recital 5 a (new)

Text proposed by the Commission

Amendment

 

(5a)  Whistleblower protection should be enforced to foster an environment conducive to freedom of information and of the media; this requires firstly that journalists and their sources, including whistleblowers, be given effective protection against any violation of their safety and their mental and physical integrity, and that any attempt to intimidate them or to undermine their independence be prevented.

Amendment    11

Proposal for a directive

Recital 6

Text proposed by the Commission

Amendment

(6)  Whistleblower protection is necessary to enhance the enforcement of Union law on public procurement. In addition to the need of preventing and detecting fraud and corruption in the context of the implementation of the EU budget, including procurement, it is necessary to tackle insufficient enforcement of rules on public procurement by national public authorities and certain public utility operators when purchasing goods, works and services. Breaches of such rules create distortions of competition, increase costs for doing business, violate the interests of investors and shareholders and, overall, lower attractiveness for investment and create an uneven level playing field for all businesses across Europe, thus affecting the proper functioning of the internal market.

(6)  Whistleblower protection is necessary to enhance the enforcement of Union law on public procurement. In addition to the need of preventing and detecting fraud and corruption in the context of the implementation of the EU budget, including procurement, it is necessary to tackle insufficient enforcement of rules on public procurement by national public authorities and certain public utility operators when purchasing goods, works and services. Breaches of such rules create distortions of competition, increase costs for doing business, violate the interests of investors and shareholders and, overall, lower attractiveness for investment and create an uneven level playing field for all businesses across Europe, thus affecting the proper functioning of the internal market. In most of the cases, such breaches place the trust of citizens in public institutions under a serious threat, thus jeopardising the proper functioning of democracy. Every effort should be made to protect those reporting misuse or misconduct regarding the Union budget and Union institutions.

Amendment    12

Proposal for a directive

Recital 6 a (new)

Text proposed by the Commission

Amendment

 

(6a)  A regime for the protection of persons reporting on breaches of Union law does not obviate the need to strengthen the means of supervision of each Member State and their public structures, which should be increasingly capable of fighting tax fraud and money laundering, nor the need to participate in international cooperation in those areas.

Amendment    13

Proposal for a directive

Recital 7

Text proposed by the Commission

Amendment

(7)  In the area of financial services, the added value of whistleblower protection was already acknowledged by the Union legislator. In the aftermath of the financial crisis, which exposed serious shortcomings in the enforcement of the relevant rules, measures for the protection of whistleblowers were introduced in a significant number of legislative instruments in this area34 . In particular, in the context of the prudential framework applicable to credit institutions and investment firms, Directive 2013/36/EU35 provides for protection of whistleblowers, which extends also to Regulation (EU) No 575/2013 on prudential requirements for credit institutions and investment firms.

(7)  In the area of financial services, the added value of sectoral whistleblower protection was already acknowledged by the Union legislator. In the aftermath of the financial crisis, which exposed serious shortcomings in the enforcement of the relevant rules, measures for the protection of whistleblowers were introduced in a significant number of legislative instruments in this area34. In particular, in the context of the prudential framework applicable to credit institutions and investment firms, Directive 2013/36/EU35 provides for protection of whistleblowers, which extends also to Regulation (EU) No 575/2013 on prudential requirements for credit institutions and investment firms. However, a number of high profile cases involving European financial institutions have proven that protection of whistleblowers within such financial institutions still remains unsatisfactory and that fears of reprisals from both employers and authorities still prevent whistleblowers from coming forward with information on breaches of law.

_________________

_________________

34 Communication of 8.12.2010 "Reinforcing sanctioning regimes in the financial services sector".

34 Communication of 8.12.2010 "Reinforcing sanctioning regimes in the financial services sector".

35 Directive 2013/36/EU of the European Parliament and of the Council of 26 June 2013 on access to the activity of credit institutions and the prudential supervision of credit institutions and investment firms, amending Directive 2002/87/EC and repealing Directives 2006/48/EC and 2006/49/EC (OJ L 176, 27.6.2013, p. 338).

35 Directive 2013/36/EU of the European Parliament and of the Council of 26 June 2013 on access to the activity of credit institutions and the prudential supervision of credit institutions and investment firms, amending Directive 2002/87/EC and repealing Directives 2006/48/EC and 2006/49/EC (OJ L 176, 27.6.2013, p. 338).

Amendment    14

Proposal for a directive

Recital 9

Text proposed by the Commission

Amendment

(9)  The importance of whistleblower protection in terms of preventing and deterring breaches of Union rules on transport safety which can endanger human lives has been already acknowledged in sectorial Union instruments on aviation safety38 and maritime transport safety39 , which provide for tailored measures of protection to whistleblowers as well as specific reporting channels. These instruments also include the protection from retaliation of the workers reporting on their own honest mistakes (so called ‘just culture’). It is necessary to complement the existing elements of whistleblower protection in these two sectors as well as to provide such protection to enhance the enforcement of safety standards for other transport modes, namely road and railway transport.

(9)  The importance of whistleblower protection in terms of preventing and deterring breaches of Union rules on transport safety which can endanger human lives has been already acknowledged in sectorial Union instruments on aviation safety38 and maritime transport safety39 , which provide for tailored measures of protection to whistleblowers as well as specific reporting channels. These instruments also include the protection from retaliation of the workers reporting on their own honest mistakes (so called ‘just culture’). It is necessary, inter alia, to complement and expand upon the existing elements of whistleblower protection in these two sectors as well as to provide such protection to enhance immediately the enforcement of safety standards for other transport modes, namely special, inland waterway, road and railway transport.

_________________

_________________

38 Regulation (EU) No 376/2014 of the European Parliament and of the Council, of 3 April 2014, on the reporting, analysis and follow-up of occurrences in civil aviation (OJ L 122, p. 18).

38 Regulation (EU) No 376/2014 of the European Parliament and of the Council, of 3 April 2014, on the reporting, analysis and follow-up of occurrences in civil aviation (OJ L 122, p. 18).

39 Directive 2013/54/EU, of the European Parliament and of the Council, of 20 November 2013, concerning certain flag State responsibilities for compliance with and enforcement of the Maritime Labour Convention (OJ L 329, p. 1), Directive 2009/16/EC of the European Parliament and of the Council, of 23 April 2009, on port State control (OJ L 131, p. 57).

39 Directive 2013/54/EU, of the European Parliament and of the Council, of 20 November 2013, concerning certain flag State responsibilities for compliance with and enforcement of the Maritime Labour Convention (OJ L 329, p. 1), Directive 2009/16/EC of the European Parliament and of the Council, of 23 April 2009, on port State control (OJ L 131, p. 57).

Amendment    15

Proposal for a directive

Recital 10

Text proposed by the Commission

Amendment

(10)  Evidence-gathering, detecting and addressing environmental crimes and unlawful conduct against the protection of the environment remain a challenge and need to be reinforced as acknowledged in the Commission Communication "EU actions to improve environmental compliance and governance" of 18 January 201840 . Whilst whistleblower protection rules exist at present only in one sectorial instrument on environmental protection41 , the introduction of such protection appears necessary to ensure effective enforcement of the Union environmental acquis, whose breaches can cause serious harm to the public interest with possible spill-over impacts across national borders. This is also relevant in cases where unsafe products can cause environmental harm.

(10)  Evidence-gathering, preventing, detecting and addressing environmental crimes and unlawful conduct or omissions as well as potential breaches concerning the protection of the environment unfortunately remain a challenge and need to be reinforced as acknowledged in the Commission Communication "EU actions to improve environmental compliance and governance" of 18 January 201840. Whilst whistleblower protection rules exist at present only in one sectorial instrument on environmental protection41, the introduction of such protection is necessary to ensure effective enforcement of the Union environmental acquis, whose breaches can cause harm to the public interest with possible spill-over impacts across national borders. This is also relevant in cases where unsafe products can cause environmental harm.

_________________

_________________

40 COM(2018) 10 final.

40 COM(2018) 0010.

41 Directive 2013/30/EU of the European Parliament and of the Council, of 12 June 2013, on safety of offshore oil and gas operations (OJ L 178, p. 66).

41 Directive 2013/30/EU of the European Parliament and of the Council, of 12 June 2013, on safety of offshore oil and gas operations and amending Directive 2004/35/EC (OJ L 178, 28.6.2013, p. 66).

Amendment    16

Proposal for a directive

Recital 11

Text proposed by the Commission

Amendment

(11)  Similar considerations warrant the introduction of whistleblower protection to build upon existing provisions and prevent breaches of EU rules in the area of food chain and in particular on food and feed safety as well as on animal health and welfare. The different Union rules developed in these areas are closely interlinked. Regulation (EC) No 178/200242 sets out the general principles and requirements which underpin all Union and national measures relating to food and feed, with a particular focus on food safety, in order to ensure a high level of protection of human health and consumers’ interests in relation to food as well as the effective functioning of the internal market. This Regulation provides, amongst others, that food and feed business operators are prevented from discouraging their employees and others from cooperating with competent authorities where this may prevent, reduce or eliminate a risk arising from food. The Union legislator has taken a similar approach in the area of ‘Animal Health Law’ through Regulation (EU) 2016/429 establishing the rules for the prevention and control of animal diseases which are transmissible to animals or to humans 43.

(11)  Similar considerations warrant the introduction of whistleblower protection to build upon existing provisions and prevent breaches of EU rules in the area of food chain and in particular on food and feed safety as well as on animal health, protection and welfare. The different Union rules developed in these areas are closely interlinked. Regulation (EC) No 178/200242 sets out the general principles and requirements which underpin all Union and national measures relating to food and feed, with a particular focus on food safety, in order to ensure a high level of protection of human health and consumers’ interests in relation to food as well as the effective functioning of the internal market. This Regulation provides, amongst others, that food and feed business operators are prevented from discouraging their employees and others from cooperating with competent authorities where this may prevent, reduce or eliminate a risk arising from food. The Union legislator has taken a similar approach in the area of ‘Animal Health Law’ through Regulation (EU) 2016/429 establishing the rules for the prevention and control of animal diseases which are transmissible to animals or to humans 43. Council Directive 98/58/EC43a and Directive 2010/63/EU of the European Parliament and of the Council43b, as well as Council Regulation (EC) No 1/2005 43c and Council Regulation (EC) No 1099/200943d lay down rules on the protection and welfare of animals kept for farming purposes, during transport, at the time of killing, and when they are used for animal experimentation.

__________________

__________________

42 Regulation (EC) No 178/2002 of the European Parliament and of the Council of 28 January 2002 laying down the general principles and requirements of food law, establishing the European Food Safety Authority and laying down procedures in matters of food safety (OJ L 31, 1.2.2002, p. 1).

42 Regulation (EC) No 178/2002 of the European Parliament and of the Council of 28 January 2002 laying down the general principles and requirements of food law, establishing the European Food Safety Authority and laying down procedures in matters of food safety (OJ L 31, 1.2.2002, p. 1).

43 OJ L 84, p. 1

43 OJ L 84, p. 1

 

43a Council Directive 98/58/EC of 20 July 1998 concerning the protection of animals kept for farming purposes (OJ L 221, 8.8.1998, p. 23).

 

43b Directive 2010/63/EU of the European Parliament and of the Council of 22 September 2010 on the protection of animals used for scientific purposes (OJ L 276, 20.10.2010, p. 33).

 

43c Council Regulation (EC) No 1/2005 of 22 December 2004 on the protection of animals during transport and related operations and amending Directives 64/432/EEC and 93/119/EC and Regulation (EC) No 1255/97 (OJ L 3, 5.1.2005, p. 1).

 

43d Council Regulation (EC) No 1099/2009 of 24 September 2009 on the protection of animals at the time of killing (OJ L 303, 18.11.2009, p. 1).

Amendment    17

Proposal for a directive

Recital 12

Text proposed by the Commission

Amendment

(12)  Enhancing the protection of whistleblowers would also favour preventing and deterring breaches of Euratom rules on nuclear safety, radiation protection and responsible and safe management of spent fuel and radioactive and would be reinforce the enforcement of existing provisions of the revised Nuclear Safety Directive44 on the effective nuclear safety culture and, in particular, Article 8 b (2) (a), which requires, inter alia, that the competent regulatory authority establishes management systems which give due priority to nuclear safety and promote, at all levels of staff and management, the ability to question the effective delivery of relevant safety principles and practices and to report in a timely manner on safety issues.

(12)  Enhancing the protection of whistleblowers would also favour preventing and deterring breaches of Euratom rules on nuclear safety, radiation protection and responsible and safe management of spent fuel and radioactive waste and would reinforce the enforcement of existing provisions of the revised Nuclear Safety Directive44 on the effective nuclear safety culture and, in particular, Article 8 b (2) (a), which requires, inter alia, that the competent regulatory authority establishes management systems which give due priority to nuclear safety and promote, at all levels of staff and management, the ability to question the effective delivery of relevant safety principles and practices and to report in a timely manner on safety issues.

_________________

_________________

44 Council Directive 2014/87/Euratom of 8 July 2014 amending Directive 2009/71/Euratom establishing a Community framework for the nuclear safety of nuclear installations (OJ L 219, 25.7.2014, p. 42–52).

44 Council Directive 2014/87/Euratom of 8 July 2014 amending Directive 2009/71/Euratom establishing a Community framework for the nuclear safety of nuclear installations (OJ L 219, 25.7.2014, p. 42).

Amendment    18

Proposal for a directive

Recital 13

Text proposed by the Commission

Amendment

(13)  In the same vein, whistleblowers’ reports can be key to detecting and preventing, reducing or eliminating risks to public health and to consumer protection resulting from breaches of Union rules which might otherwise remain hidden. In particular, consumer protection is also strongly linked to cases where unsafe products can cause considerable harm to consumers. Whistleblower protection should therefore be introduced in relation to relevant Union rules adopted pursuant to Articles 114, 168 and 169 TFEU.

(13)  In the same vein, whistleblowers’ reports can be key to detecting and preventing, reducing or eliminating risks to public health and to consumer protection resulting from breaches of Union rules which might otherwise remain hidden. In particular, consumer protection is also strongly linked to cases where unsafe products can cause harm to consumers. Whistleblower protection should therefore be introduced in relation to relevant Union rules adopted pursuant to Articles 114, 168 and 169 TFEU.

Amendment    19

Proposal for a directive

Recital 14

Text proposed by the Commission

Amendment

(14)  The protection of privacy and personal data is another area where whistleblowers are in a privileged position to disclose breaches of Union law which can seriously harm the public interest. Similar considerations apply for breaches of the Directive on the security of network and information systems45, which introduces notification of incidents (including those that do not compromise personal data) and security requirements for entities providing essential services across many sectors (e.g. energy, health, transport, banking, etc.) and providers of key digital services (e.g. cloud computing services). Whistleblowers' reporting in this area is particularly valuable to prevent security incidents that would affect key economic and social activities and widely used digital services. It helps ensuring the continuity of services which are essential for the functioning of the internal market and the wellbeing of society.

(14)  The protection of privacy and personal data, enshrined in Articles 7 and 8 of the Charter of Fundamental Rights and Article 8 of the European Convention on Human Rights (ECHR), is another area where whistleblowers can help to disclose breaches of Union law which can harm the public interest. Similar considerations apply for breaches of the Directive on the security of network and information systems45, which introduces notification of incidents (including those that do not compromise personal data) and security requirements for entities providing essential services across many sectors (e.g. energy, tourism, health, transport, banking, construction, etc.) for providers of key digital services (e.g. cloud computing services) and for suppliers of basic utilities, such as water, electricity and gas. Whistleblowers' reporting in this area is particularly valuable in order to prevent security incidents that would affect key economic and social activities and widely used digital services, as well as to prevent any infringement of Union data protection legislation. It helps ensuring the continuity of services which are essential for society.

_________________

_________________

45 Directive (EU) 2016/1148 of the European Parliament and of the Council of 6 July 2016 concerning measures for a high common level of security of network and information systems across the Union.

45 Directive (EU) 2016/1148 of the European Parliament and of the Council of 6 July 2016 concerning measures for a high common level of security of network and information systems across the Union (OJ L 194, 19.7.2016, p. 1).

Amendment    20

Proposal for a directive

Recital 16

Text proposed by the Commission

Amendment

(16)  The protection of the financial interests of the Union, which relates to the fight against fraud, corruption and any other illegal activity affecting the use of Union expenditures, the collection of Union revenues and funds or Union assets, is a core area in which enforcement of Union law needs to be strengthened. The strengthening of the protection of the financial interests of the Union also encompasses implementation of the Union budget related to expenditures made on the basis of the Treaty establishing the European Atomic Energy Community. Lack of effective enforcement in the area of the financial interests of the Union, including fraud and corruption at national level, causes a decrease of the Union revenues and a misuse of EU funds, which can distort public investments and growth and undermine citizens’ trust in EU action. Whistleblower protection is necessary to facilitate the detection, prevention and deterrence of relevant fraud and illegal activities.

(16)  The protection of the financial interests of the Union, which relates to the fight against fraud, corruption, breaches of legal requirements, abuse of power and any other illegal activity affecting the use of Union expenditures, the collection of Union revenues and funds or Union assets, is a core area in which enforcement of Union law needs to be strengthened. The strengthening of the protection of the financial interests of the Union also encompasses implementation of the Union budget related to expenditures made on the basis of the Treaty establishing the European Atomic Energy Community. Lack of effective enforcement in the area of the financial interests of the Union, including fraud and corruption at national level, causes a decrease of the Union revenues and a misuse of EU funds, which can distort public investments and growth and undermine citizens’ trust in EU action. Investigative journalists also play a crucial role in revealing wrongdoing connected to all those areas. Such journalists represent a very exposed group of professionals, often paying with their jobs, freedom and even with their lives for disclosure of massive irregularities and corruption schemes. Special measures to protect investigative journalists should, therefore, be included in a horizontal legislative proposal for the protection of whistleblowers. Investigative journalism and whistleblower protection are necessary to facilitate the detection, prevention and deterrence of relevant fraud and illegal activities.

Amendment    21

Proposal for a directive

Recital 18

Text proposed by the Commission

Amendment

(18)  Certain Union acts, in particular in the area of financial services, such as Regulation (EU) No 596/2014 on market abuse49 , and Commission Implementing Directive 2015/2392, adopted on the basis of that Regulation50 , already contain detailed rules on whistleblower protection. Such existing Union legislation, including the list of Part II of the Annex, should be complemented by the present Directive, so that these instruments are fully aligned with its minimum standards whilst maintaining any specificities they provide for, tailored to the relevant sectors. This is of particular importance to ascertain which legal entities in the area of financial services, the prevention of money laundering and terrorist financing are currently obliged to establish internal reporting channels.

(18)  Certain Union acts, in particular in the area of financial services, such as Regulation (EU) No 596/2014 on market abuse49 , and Commission Implementing Directive 2015/2392, adopted on the basis of that Regulation50 , already contain detailed rules on whistleblower protection. Such existing Union legislation, including the list of Part II of the Annex, should be complemented by the present Directive, so that these instruments are fully aligned with its minimum standards whilst maintaining any specificities they provide for, tailored to the relevant sectors. This is of particular importance to ascertain which legal entities in the area of financial services, the prevention of and the fight against money laundering, the proper implementation of Directive 2011/7/EU of the European Parliament and of the Council50a, terrorist financing and cyber-crime are currently obliged to establish internal reporting channels. As such cases often involve highly complex international corporate and financial arrangements, which are likely to be within the remit of differing jurisdictions, provisions for a unified point of contact for whistleblowers should be adopted.

_________________

_________________

49 OJ L 173, p. 1.

49 OJ L 173, p. 1.

50 Commission Implementing Directive (EU) 2015/2392 of 17 December 2015 on Regulation (EU) No 596/2014 of the European Parliament and of the Council as regards reporting to competent authorities of actual or potential infringements of that Regulation (OJ L 332, p. 126).

50 Commission Implementing Directive (EU) 2015/2392 of 17 December 2015 on Regulation (EU) No 596/2014 of the European Parliament and of the Council as regards reporting to competent authorities of actual or potential infringements of that Regulation (OJ L 332, p. 126).

 

50a Directive 2011/7/EU of the European Parliament and of the Council of 16 February 2011 on combating late payment in commercial transactions (OJ L 48, 23.2.2011, p. 1).

Amendment    22

Proposal for a directive

Recital 18 a (new)

Text proposed by the Commission

Amendment

 

(18a)  The Union is founded on a set of common values and principles. It guarantees respect for human rights and fundamental freedoms, as enshrined in the Charter of Fundamental Rights of the European Union (‘the Charter’). Since those are the rights and principles on which the Union is founded, their protection is of paramount importance and persons uncovering violations of such rights and principles deserve to benefit from the protection provided for under this Directive.

Amendment    23

Proposal for a directive

Recital 19

Text proposed by the Commission

Amendment

(19)  Each time a new Union act for which whistleblower protection is relevant and can contribute to more effective enforcement is adopted, consideration should be given to whether to amend the Annex to the present Directive in order to place it under its scope.

(19)  In order to take account of any new Union act for which whistleblower protection is relevant and which could have an impact in terms of more effective enforcement, the power to adopt acts in accordance with Article 290 of the Treaty on the Functioning of the European Union should be delegated to the Commission in order to amend this Directive by updating the Annex thereto each time such a new Union act is adopted in order to place it under the scope of this Directive. It is of particular importance that the Commission carry out appropriate consultations during its preparatory work, including at expert level, and that those consultations be conducted in accordance with the principles laid down in the Interinstitutional Agreement of 13 April 2016 on Better Law-Making1a. In particular, to ensure equal participation in the preparation of delegated acts, the European Parliament and the Council receive all documents at the same time as Member States' experts, and their experts systematically have access to meetings of Commission expert groups dealing with the preparation of delegated acts.

 

___________________

 

1a OJ L 123, 12.5.2016, p. 1."

Amendment    24

Proposal for a directive

Recital 19 a (new)

Text proposed by the Commission

Amendment

 

(19a)  In certain situations, infringements of Union law regarding workers’ protection, employment and working conditions, social, individual and collective workers' rights can be the subject of effective individual procedures to secure redress. On the other hand, where such infringements are systematic, they undermine the public interest and there is therefore a need to provide for the protection of those who report such infringements. In certain fields, difficulties with the implementation of Union legislation have been observed, such as having to resort unacceptably to precarious employment. Effective enforcement of Union law is also required and improving the protection of whistleblowers in the field of labour law would thus improve the application of the law and ensure a high level of protection of workers in the internal market while ensuring fair competition between economic operators.

Amendment    25

Proposal for a directive

Recital 20

Text proposed by the Commission

Amendment

(20)  This Directive should be without prejudice to the protection afforded to employees when reporting on breaches of Union employment law. In particular, in the area of occupational safety and health, Article 11 of Framework Directive 89/391/EEC already requires Member States to ensure that workers or workers' representatives shall not be placed at a disadvantage because of their requests or proposals to employers to take appropriate measures to mitigate hazards for workers and/or to remove sources of danger. Workers and their representatives are entitled to raise issues with the competent national authorities if they consider that the measures taken and the means employed by the employer are inadequate for the purposes of ensuring safety and health.

(20)  This Directive should complement the protection afforded to employees when reporting on breaches of Union employment law. In particular, in the area of occupational safety and health, Article 11 of Framework Directive 89/391/EEC already requires Member States to ensure that workers or workers' representatives shall not be placed at a disadvantage because of their requests or proposals to employers to take appropriate measures to mitigate hazards for workers and/or to remove sources of danger. Workers and their representatives are entitled to raise issues with the competent national or Union authorities if they consider that the measures taken and the means employed by the employer are inadequate for the purposes of ensuring safety and health.

Amendment    26

Proposal for a directive

Recital 21

Text proposed by the Commission

Amendment

(21)  This Directive should be without prejudice to the protection of national security and other classified information which Union law or the laws, regulations or administrative provisions in force in the Member State concerned require, for security reasons, to be protected from unauthorised access. In particular, Moreover, the provision of this Directive should not affect the obligations arising from Commission Decision (EU, Euratom) 2015/444 of 13 March 2015 on the security rules for protecting EU classified information or Council Decision of 23 September 2013 on the security rules for protecting EU classified information.

(21)  This Directive should be without prejudice to the protection of national security and other classified information which Union law or the laws, regulations or administrative provisions in force in the Member State concerned require, for security reasons, to be protected from unauthorised access. Moreover, the provision of this Directive should not affect the obligations arising from Commission Decision (EU, Euratom) 2015/444 of 13 March 2015 on the security rules for protecting EU classified information or Council Decision of 23 September 2013 on the security rules for protecting EU classified information.

Amendment    27

Proposal for a directive

Recital 22

Text proposed by the Commission

Amendment

(22)  Persons who report information about threats or harm to the public interest obtained in the context of their work-related activities make use of their right to freedom of expression. The right to freedom of expression, enshrined in Article 11 of the Charter of Fundamental Rights of the European Union (‘the Charter’) and in Article 10 of the European Convention on Human Rights (ECHR), encompasses media freedom and pluralism.

(22)  Persons who report information about threats or harm to the public interest act on the strength of the right of freedom of expression and information, enshrined in Article 11 of the Charter of Fundamental Rights of the European Union (‘the Charter’) and in Article 10 of the European Convention on Human Rights (ECHR), which encompasses the right to receive and impart information, as well as media freedom and pluralism.

Amendment    28

Proposal for a directive

Recital 26

Text proposed by the Commission

Amendment

(26)  Protection should, firstly, apply to persons having the status of 'workers', within the meaning of Article 45 TFEU, as interpreted by the Court of Justice of the European Union52 , i.e. persons who, for a certain period of time, perform services for and under the direction of another person, in return of which they receive remuneration. Protection should thus also be granted to workers in non-standard employment relationships, including part-time workers and fixed-term contract workers, as well as persons with a contract of employment or employment relationship with a temporary agency, which are types of relationships where standard protections against unfair treatment are often difficult to apply.

(26)  Protection should, firstly, apply to persons having the status of 'workers', within the meaning of Article 45 TFEU, as interpreted by the Court of Justice of the European Union52 , i.e. persons who, for a certain period of time, perform services for and under the direction of another person, in return of which they receive remuneration. In accordance with the Court's case law, the notion of "worker" should be interpreted broadly, namely in a manner such that public and civil servants are included. Protection should thus also be granted to workers in other employment relationships, including part-time workers and fixed-term contract workers, interns, paid and unpaid trainees, as well as persons with a contract of employment or employment relationship with a temporary agency and those in precarious employment or with cross-border status, which are types of relationships where standard protections against unfair treatment are often difficult to apply. Finally, protection should also be granted to persons whose employment contract has ended.

_________________

_________________

52 Judgments of 3 July 1986, Lawrie-Blum, Case 66/85; 14 October 2010, Union Syndicale Solidaires Isère, Case C-428/09; 9 July 2015, Balkaya, Case C-229/14; 4 December 2014, FNV Kunsten, Case C-413/13; and 17 November 2016, Ruhrlandklinik, Case C-216/15.

52 Judgment of the Court of Justice of 3 July 1986, Lawrie-Blum v Land Baden-Württemberg, C-66/85, ECLI:EU:C:1986:284; judgment of the Court of Justice of 14 October 2010, Union Syndicale Solidaires Isère, C-428/09, ECLI:EU:C:2010:612; judgment of the Court of Justice of 9 July 2015, Balkaya, C-229/14, ECLI:EU:C:2015:455; judgment of the Court of Justice of 4 December 2014, FNV Kunsten Informatie en Media, C-413/13, ECLI:EU:C:2014:2411; judgment of the Court of Justice of17 November 2016, Betriebsrat der Ruhrlandklinik, C-216/15, ECLI:EU:C:2016:883.

Amendment    29

Proposal for a directive

Recital 27

Text proposed by the Commission

Amendment

(27)  Protection should also extend to further categories of natural or legal persons, who, whilst not being 'workers' within the meaning of Article 45 TFEU, can play a key role in exposing breaches of the law and may find themselves in a position of economic vulnerability in the context of their work-related activities. For instance, in areas such as product safety, suppliers are much closer to the source of possible unfair and illicit manufacturing, import or distribution practices of unsafe products; in the implementation of Union funds, consultants providing their services are in a privileged position to draw attention to breaches they witness. Such categories of persons, including self-employed persons providing services, freelance, contractors, sub-contractors and suppliers, are typically subject to retaliation in the form of early termination or cancellation of contract of services, licence or permit, loss of business, loss of income, coercion, intimidation or harassment, blacklisting/business boycotting or damage to their reputation. Shareholders and persons in managerial bodies, may also suffer retaliation, for instance in financial terms or in the form of intimidation or harassment, blacklisting or damage to their reputation. Protection should also be granted to candidates for employment or for providing services to an organisation who acquired the information on breaches of law during the recruitment process or other pre-contractual negotiation stage, and may suffer retaliation for instance in the form of negative employment references or blacklisting/business boycotting.

(27)  Protection should also extend to further categories of natural or legal persons, who, whilst not being 'workers' within the meaning of national law or in accordance with Article 45 TFEU, can play a key role in exposing breaches of the law and may find themselves in a position of economic vulnerability in the context of their work-related activities. For instance, in areas such as product safety, suppliers are much closer to the source of possible unfair and illicit manufacturing, import or distribution practices of unsafe products; in the implementation of Union funds, consultants providing their services are in a privileged position to draw attention to breaches they witness. Such categories of persons, including self-employed persons providing services, freelance, contractors, sub-contractors and suppliers, are typically subject to retaliation, which may take the form, for instance, of early termination or cancellation of contract of services, licence or permit, loss of business, loss of income, coercion, intimidation or harassment, blacklisting/business boycotting or damage to their reputation. Shareholders and persons in managerial bodies, may also suffer retaliation, for instance in financial terms or in the form of intimidation or harassment, blacklisting or damage to their reputation. Protection should also be granted to candidates for employment or for providing services to an organisation who acquired the information on breaches of law during the recruitment process or other pre-contractual negotiation stage, and may suffer retaliation for instance in the form of negative employment references or blacklisting/business boycotting.

Justification

The directive should respect the definition of the concept of worker is a national matter for some Member states.

Amendment    30

Proposal for a directive

Recital 27 a (new)

Text proposed by the Commission

Amendment

 

(27 a)  In accordance with Articles 22a, 22b and 22c of the Staff Regulations of Officials of the European Union and Article 11 of the Conditions of Employment of Other Servants of the European Union, laid down in Council Regulation (EEC, Euratom, ECSC) No 259/68 1a, all Union institutions are required to adopt and implement internal rules protecting whistleblowers.

 

_______________

 

1a OJ L 56, 4.3.1968, p. 1.

Amendment    31

Proposal for a directive

Recital 28

Text proposed by the Commission

Amendment

(28)  Effective whistleblower protection implies protecting also further categories of persons who, whilst not relying on their work-related activities economically, may nevertheless suffer retaliation for exposing breaches. Retaliation against volunteers and unpaid trainees may take the form of no longer making use of their services, or of giving a negative reference for future employment or otherwise damaging their reputation.

(28)  Effective whistleblower protection implies protecting also further categories of persons who, whilst not relying on their work-related activities economically, may nevertheless suffer retaliation for exposing breaches or for directly or indirectly supporting reporting by whistleblowers. Retaliation against volunteers and paid or unpaid trainees may take the form of no longer making use of their services, or of giving a negative reference for future employment or otherwise damaging their reputation or career prospects.

Amendment    32

Proposal for a directive

Recital 28 a (new)

Text proposed by the Commission

Amendment

 

(28a)  Similarly, it is important to ensure protection for persons, such as work colleagues who assist the whistleblower in the workplace, inter alia by providing advice on how to proceed, the proper channels for reporting, the protections available, or the wording to use in the report. Such persons could be made privy to the information uncovered and could therefore also be victims of retaliation. They should, as such, benefit from the protection provided for by this Directive. Investigative journalists also play a crucial role in exposing breaches of Union law and can suffer from retaliation measures, such as strategic litigation suits, for example regarding libel or defamation. They should therefore also be entitled to enjoy the protection measures provided for in this Directive, so as to safeguard freedom of expression to the extent that national law does not provide for greater protection.

Amendment    33

Proposal for a directive

Recital 28 b (new)

Text proposed by the Commission

Amendment

 

(28b)  Effective whistleblower protection should also include protecting any individual who has evidence of such acts in the public or private sector but who has not necessarily witnessed such acts first hand.

Amendment    34

Proposal for a directive

Recital 28 c (new)

Text proposed by the Commission

Amendment

 

(28c)  Effective protection implies adequate training and an information centre available to inform whistleblowers about their rights, the disclosure options, and the limitations in the protection so they are aware of their rights and responsibilities. This should not be considered a substitute for access to independent legal advice which should also be available.

Amendment    35

Proposal for a directive

Recital 29

Text proposed by the Commission

Amendment

(29)  Effective detection and prevention of serious harm to the public interest requires that the information reported which qualifies for protection covers not only unlawful activities but also abuse of law, namely acts or omissions which do not appear to be unlawful in formal terms but defeat the object or the purpose of the law.

(29)  Effective detection and prevention of harm to the public interest requires that the information reported which qualifies for protection covers not only unlawful activities but also abuse of law, namely acts or omissions which do not appear to be unlawful in formal terms but defeat the object or the purpose of the law or constitute a danger or potential threat to the public interest.

Amendment    36

Proposal for a directive

Recital 30

Text proposed by the Commission

Amendment

(30)  Effective prevention of breaches of Union law requires that protection is also granted to persons who provide information about potential breaches, which have not yet materialised, but are likely to be committed. For the same reasons, protection is warranted also for persons who do not provide positive evidence but raise reasonable concerns or suspicions. At the same time, protection should not apply to the reporting of information which is already in the public domain or of unsubstantiated rumours and hearsay.

(30)  Effective prevention of breaches of Union law requires that protection is also granted to persons who provide information about breaches which are very likely to be committed. For the same reasons, protection is warranted also for persons who do not provide positive evidence but raise well-founded, reasonable concerns or suspicions as well as to persons who add to information about issues already in the public domain. At the same time, protection should not apply to the reporting of unsubstantiated rumours and hearsay.

Amendment    37

Proposal for a directive

Recital 30 a (new)

Text proposed by the Commission

Amendment

 

(30a)  However, in order to prevent unjustified reputational damages a clear distinction should also be made between deliberate false accusations, intended to harm the person or entity concerned, and the reporting of information for which the reporting person had reasonable grounds to believe that it was true. This Directive should be without prejudice to national laws applicable in the case of false accusations, such as defamation.

Amendment    38

Proposal for a directive

Recital 31

Text proposed by the Commission

Amendment

(31)  Retaliation expresses the close (cause and effect) relationship that must exist between the report and the adverse treatment suffered, directly or indirectly, by the reporting person, so that this person can enjoy legal protection. Effective protection of reporting persons as a means of enhancing the enforcement of Union law requires a broad definition of retaliation, encompassing any act or omission occurring in the work-related context which causes them detriment.

(31)  Retaliation expresses the (cause and effect) relationship that must exist between the report and the adverse treatment suffered, directly or indirectly, by the reporting person, or by persons considering reporting or by persons who assist the reporting person in the reporting process, so that such persons can enjoy legal protection. Since forms of retaliation are limited only by the imagination of the perpetrators of such acts, effective protection of reporting persons, or of persons considering reporting or of persons who assist the reporting person in the reporting process, as a means of enhancing the enforcement of Union law requires a broad definition of retaliation, encompassing any act or omission occurring in the work-related context which causes them detriment.

Amendment    39

Proposal for a directive

Recital 33

Text proposed by the Commission

Amendment

(33)  Whistleblowers are, in particular, important sources for investigative journalists. Providing effective protection to whistleblowers from retaliation increases the legal certainty of (potential) whistleblowers and thereby encourages and facilitates whistleblowing also to the media. In this respect, protection of whistleblowers as journalistic sources is crucial for safeguarding the ‘watchdog’ role of investigative journalism in democratic societies.

(33)  Whistleblowers are, in particular, important sources for investigative journalists. Providing effective protection to whistleblowers as well as to investigative journalists from retaliation and any form of harassment increases the legal certainty of (potential) whistleblowers and thereby encourages and facilitates whistleblowing also to the media when it is justified. In this respect, protection of whistleblowers as journalistic sources is crucial for safeguarding the ‘watchdog’ role of investigative journalism in democratic societies. In this context also, investigative journalists who use whistleblower sources should themselves be given the same protection as their whistleblower sources. Furthermore, whistleblowers and journalists are often involved in unfounded lawsuits brought against them by law firms engaged in defamation and extortion in order to frighten the reporting persons and force them to resort to costly legal defences. Those practices should be strongly condemned and therefore should be covered by this Directive.

Amendment    40

Proposal for a directive

Recital 34

Text proposed by the Commission

Amendment

(34)  It is for the Member States to identify the authorities competent to receive and give appropriate follow up to the reports on breaches falling within the scope of this Directive. These may be regulatory or supervisory bodies in the areas concerned, law enforcement agencies, anti-corruption bodies and ombudsmen. The authorities designated as competent shall have the necessary capacities and powers to assess the accuracy of the allegations made in the report and to address the breaches reported, including by launching an investigation, prosecution or action for recovery of funds, or other appropriate remedial action, in accordance with their mandate.

(34)  It is for the Member States to identify the authorities that are competent to receive and give appropriate follow up to the reports on breaches falling within the scope of this Directive, and that have the highest possible degree of independence and impartiality. These may be judicial authorities, regulatory or supervisory bodies in the areas concerned, law enforcement agencies, anti-corruption bodies and ombudsmen. The authorities designated as competent should be independent and have the necessary capacities and powers to impartially and objectively assess the accuracy of the allegations made in the report and to address the breaches reported, including by launching or requesting an investigation, prosecution or action for recovery of funds, or other appropriate remedial action, in accordance with their mandate. The staff serving in those bodies shall be specialised and have received proper training.

Amendment    41

Proposal for a directive

Recital 35

Text proposed by the Commission

Amendment

(35)  Union law in specific areas, such as market abuse53, civil aviation54 or safety of offshore oil and gas operations55 already provides for the establishment of internal and external reporting channels. The obligations to establish such channels laid down in this Directive should build as far as possible on the existing channels provided by specific Union acts.

(35)  Union law in specific areas, such as market abuse53, civil aviation54 or safety of offshore oil and gas operations55 already provides for the establishment of internal and external reporting channels. The obligations to establish such channels laid down in this Directive should build as far as possible on the existing channels provided by specific Union acts. In the absence of such provisions and where the rules laid down in this Directive afford greater protection, the latter rules should apply.

__________________

__________________

53 Cited above.

53 Cited above.

54 Regulation (EU) No 376/2014 of the European Parliament and of the Council of 3 April 2014 on the reporting, analysis and follow-up of occurrences in civil aviation, OJ L 122, p. 18.

54 Regulation (EU) No 376/2014 of the European Parliament and of the Council of 3 April 2014 on the reporting, analysis and follow-up of occurrences in civil aviation, amending Regulation (EU) No 996/2010 of the European Parliament and of the Council and repealing Directive 2003/42/EC of the European Parliament and of the Council and Commission Regulations (EC) No 1321/2007 and (EC) No 1330/2007 (OJ L 122, 24.4.2014, p. 18).

55 Directive 2013/30/EU of the European Parliament and of the Council of 12 June 2013 on safety of offshore oil and gas operations and amending Directive 2004/35/EC.

55 Directive 2013/30/EU of the European Parliament and of the Council of 12 June 2013 on safety of offshore oil and gas operations and amending Directive 2004/35/EC (OJ L 178, 28.6.2013, p. 66).

Amendment    42

Proposal for a directive

Recital 35 a (new)

Text proposed by the Commission

Amendment

 

(35a)  In cases of high level corruption, additional safeguards are necessary to ensure that reporting persons are not prevented from receiving protection by the concerned persons whom the information in their possession will incriminate.

Amendment    43

Proposal for a directive

Recital 35 b (new)

Text proposed by the Commission

Amendment

 

(35b)  Reporting persons in possession of information related to high-level corruption should have recourse to a judicial body that is independent from other branches of government with the powers to grant reporting persons effective protection and to address the breaches that they expose.

Amendment    44

Proposal for a directive

Recital 37

Text proposed by the Commission

Amendment

(37)  For the effective detection and prevention of breaches of Union law it is vital that the relevant information reaches swiftly those closest to the source of the problem, most able to investigate and with powers to remedy it, where possible. This requires that legal entities in the private and the public sector establish appropriate internal procedures for receiving and following-up on reports.

(37)  For the effective detection and prevention of breaches of Union law it is vital that the relevant information reaches swiftly those closest to the source of the problem, most able to investigate and with powers to remedy it, where possible. This requires that legal entities in the private and the public sector establish appropriate and proportionate internal procedures that are governed by the principles of independence and impartiality for receiving, analysing and following-up on reports. Measures taken in accordance with such internal procedures should provide for adequate guarantees regarding confidentiality, data protection and privacy.

Amendment    45

Proposal for a directive

Recital 38

Text proposed by the Commission

Amendment

(38)  For legal entities in the private sector, the obligation to establish internal channels is commensurate with their size and the level of risk their activities pose to the public interest. It should apply to all medium-sized and large entities irrespective of the nature of their activities, based on their obligation to collect VAT. As a general rule small and micro undertakings, as defined in Article 2 of the Annex of the Commission Recommendation of 6 May 2003, as amended56, should be exempted from the obligation to establish internal channels. However, following an appropriate risk assessment, Member States may require small undertakings to establish internal reporting channels in specific cases (e.g. due to the significant risks that may result from their activities).

(38)  For legal entities in the private sector, the obligation to establish internal channels is commensurate with their size and the level of risk their activities pose to the public interest. It should apply to all medium-sized and large entities irrespective of the nature of their activities, based on their obligation to collect VAT. However, by way of derogation, Member States should be free to exempt medium-sized entities, as defined in Article 2 of the Annex to the Commission Recommendation of 6 May 2003, as amended56, from that obligation. As a general rule small and micro undertakings, as defined in Article 2 of the Annex to the Commission Recommendation of 6 May 2003, as amended, should be exempted from the obligation to establish internal channels. However, following an appropriate risk assessment, Member States may require small undertakings to establish internal reporting channels in specific cases (e.g. due to the significant risks that may result from their activities).

_________________

_________________

56 Commission Recommendation of 6 May 2003 concerning the definition of micro, small and medium-sized enterprises (OJ L 124, 20.5.2003, p. 36).

56 Commission Recommendation of 6 May 2003 concerning the definition of micro, small and medium-sized enterprises (OJ L 124, 20.5.2003, p. 36).

Amendment    46

Proposal for a directive

Recital 39

Text proposed by the Commission

Amendment

(39)  The exemption of small and micro undertakings from the obligation to establish internal reporting channels should not apply to private undertakings active in the area of financial services. Such undertakings should remain obliged to establish internal reporting channels, in line with the current obligations set forth in the Union acquis on financial services.

(39)  The exemption of small and micro undertakings from the obligation to establish internal reporting channels should not apply to private undertakings active in or closely linked to the area of financial services. Such undertakings should remain obliged to establish internal reporting channels, in line with the current obligations set forth in the Union acquis on financial services.

Amendment    47

Proposal for a directive

Recital 44 a (new)

Text proposed by the Commission

Amendment

 

(44a)  While the intention of this Directive is not to regulate the arrangements for anonymous reporting or anonymous public disclosure, such kinds of reports may occur. Anonymous reports received through internal channels should therefore be diligently followed-up. As regards anonymous reports made using external channels, competent authorities should be allowed to disregard such reports in accordance with national law. Moreover, in cases where the identity of reporting persons happens to be revealed, such persons should be eligible for protection under this Directive.

Amendment    48

Proposal for a directive

Recital 44 b (new)

Text proposed by the Commission

Amendment

 

(44b)  It has been proven that keeping a reporting person’s identity confidential is an essential element in avoiding backsliding and self-censorship. The duty of confidentiality should, therefore, only be waived in exceptional circumstances in which disclosure of information relating to the reporting person’s personal data is a necessary and proportionate obligation required under Union or national law in the context of subsequent investigations or judicial proceedings or to safeguard the freedoms of others including the right of defence of the concerned person, and in each case subject to appropriate safeguards under such laws. Appropriate sanctions should be provided for in the event of breaches of the duty of confidentiality concerning the reporting person’s identity.

Amendment    49

Proposal for a directive

Recital 44 c (new)

Text proposed by the Commission

Amendment

 

(44c)  It is crucial that the confidentiality of the identity of the reporting person and anyone involved be ensured so that the reporting process runs as smoothly as possible and without any impediment, and so that self-censorship is avoided. Indeed, the importance of protecting personal data is laid down in Union law and in national law, and such data requires all the more protection in the event of reporting.

Amendment    50

Proposal for a directive

Recital 45

Text proposed by the Commission

Amendment

(45)  The most appropriate persons or departments within a private legal entity to be designated as competent to receive and follow up on reports depend on the structure of the entity, but, in any case, their function should ensure absence of conflict of interest and independence. In smaller entities, this function could be a dual function held by a company officer well placed to report directly to the organisational head, such as a chief compliance or human resources officer, a legal or privacy officer, a chief financial officer, a chief audit executive or a member of the board.

(45)  The most appropriate persons or departments within a private legal entity to be designated as competent to receive and follow up on reports depend on the structure of the entity, but, in any case, their function should ensure absence of conflict of interest, proper know-how and independence. In smaller entities, this function could be a dual function held by a company officer well placed to report directly to the organisational head, such as a chief compliance or human resources officer, a legal or privacy officer, a chief financial officer, a chief audit executive or a member of the board.

Amendment    51

Proposal for a directive

Recital 46

Text proposed by the Commission

Amendment

(46)  In the context of internal reporting, the quality and transparency of information provided on the follow up procedure to the report is crucial to build trust in the effectiveness of the overall system of whistleblower protection and reduces the likelihood of further unnecessary reports or public disclosures. The reporting person should be informed within a reasonable timeframe about the action envisaged or taken as follow up to the report (for instance, closure based on lack of sufficient evidence or other grounds, launch of an internal enquiry and possibly its findings and/or measures taken to address the issue raised, referral to a competent authority for further investigation) as far as such information would not prejudice the enquiry or investigation or affect the rights of the concerned person. Such reasonable timeframe should not exceed in total three months. Where the appropriate follow up is still being determined, the reporting person should be informed about this and about any further feedback he/she should expect.

(46)  In the context of internal reporting, the quality and transparency of information provided on the follow up procedure to the report is crucial to build trust in the effectiveness of the overall system of whistleblower protection and reduces the likelihood of further unnecessary reports or public disclosures. The reporting person should be informed within a reasonable timeframe about the action envisaged or taken as follow up to the report (for instance, closure based on lack of sufficient evidence or other grounds, launch of an internal enquiry and possibly its findings and/or measures taken to address the issue raised, referral to a competent authority for further investigation) as far as such information would not prejudice the enquiry or investigation or affect the rights of the concerned person. Such reasonable timeframe should not exceed in total four months. Where the appropriate follow up is still being determined, the reporting person should be informed about this and about any further feedback he/she should expect. In all cases, the reporting person should be informed of the investigation’s progress and outcome. He or she should be given the opportunity to be consulted and to make comments, during the course of the investigation, albeit with no obligation to do so. Such comments should be taken into account where deemed relevant by the person or department in charge with the follow-up of the reports.

Amendment    52

Proposal for a directive

Recital 47 a (new)

Text proposed by the Commission

Amendment

 

(47a)  Recipients of disclosed information within the workplace should include, inter alia: line-managers, superiors or representatives of the organisation; human resources officers, ethics officers, work councils or other bodies in charge of mediating conflicts at work including conflicts of interest; internal financial oversight bodies within the organisation; disciplinary bodies within the organisation.

Amendment    53

Proposal for a directive

Recital 49

Text proposed by the Commission

Amendment

(49)  Lack of confidence in the usefulness of reporting is one of the main factors discouraging potential whistleblowers. This warrants imposing a clear obligation on competent authorities to diligently follow-up on the reports received, and, within a reasonable timeframe, give feedback to the reporting persons about the action envisaged or taken as follow-up (for instance, closure based on lack of sufficient evidence or other grounds, launch of an investigation and possibly its findings and/or measures taken to address the issue raised; referral to another authority competent to give follow-up) to the extent that such information would not prejudice the investigation or the rights of the concerned persons.

(49)  Along with the very real and very reasonable fear of retaliation, lack of confidence in the effectiveness of reporting is one of the main factors discouraging potential whistleblowers. This warrants imposing a clear obligation on competent authorities to diligently follow-up on the reports received, and, within a reasonable timeframe, give feedback to the reporting persons about the action envisaged or taken as follow-up (for instance, closure based on lack of sufficient evidence or other grounds, launch of an investigation and possibly its findings and/or measures taken to address the issue raised; referral to another authority competent to give follow-up) to the extent that such information would not prejudice the investigation or the rights of the concerned persons.

Amendment    54

Proposal for a directive

Recital 50

Text proposed by the Commission

Amendment

(50)  Follow up and feedback should take place within a reasonable timeframe; this is warranted by the need to promptly address the problem that may be the subject of the report, as well as to avoid unnecessary public disclosures. Such timeframe should not exceed three months, but could be extended to six months, where necessary due to the specific circumstances of the case, in particular the nature and complexity of the subject of the report, which may require a lengthy investigation.

(50)  Follow up and feedback should take place within a reasonable timeframe; this is warranted by the need to promptly address the problem that may be the subject of the report, as well as to avoid unnecessary public disclosures. Such timeframe should not exceed two months, but could be extended to four months, where necessary due to the specific circumstances of the case, in particular the nature and complexity of the subject of the report, which may require a lengthy investigation.

Amendment    55

Proposal for a directive

Recital 52

Text proposed by the Commission

Amendment

(52)  In order to allow for effective communication with their dedicated staff, it is necessary that the competent authorities have in place and use specific channels, separate from their normal public complaints systems, that should be user-friendly and allow for written and oral, as well as electronic and non-electronic reporting.

(52)  In order to allow for effective communication with their dedicated staff, it is necessary that the competent authorities have in place and use specific channels, separate from their normal public complaints systems, that should be user-friendly, confidential and allow for written and oral, as well as electronic and non-electronic reporting.

Amendment    56

Proposal for a directive

Recital 53

Text proposed by the Commission

Amendment

(53)  Dedicated staff members of the competent authorities, who are professionally trained, including on applicable data protection rules, would be necessary in order to handle reports and to ensure communication with the reporting person, as well as following up on the report in a suitable manner.

(53)  Dedicated staff members of the competent authorities, who are professionally trained on a regular basis, including on applicable data protection rules, should be necessary in order to receive and handle reports and to ensure communication with the reporting person, to follow up on the report in a suitable manner, as well as to provide information and advice to any interested person.

Amendment    57

Proposal for a directive

Recital 54

Text proposed by the Commission

Amendment

(54)  Persons intending to report should be able to make an informed decision on whether, how and when to report. Competent authorities should therefore publicly disclose and make easily accessible information about the available reporting channels with competent authorities, about the applicable procedures and about the dedicated staff members within these authorities. All information regarding reports should be transparent, easily understandable and reliable in order to promote and not deter reporting.

(54)  Persons intending to report should be able to make an informed decision on whether, how and when to report. Competent authorities should therefore publicly disclose and make easily accessible information about the available reporting channels, in cases where external reporting is possible, with competent authorities, about the applicable procedures and about the dedicated staff members within these authorities. All information regarding reports should be transparent, easily understandable and reliable in order to promote and not deter reporting.

Amendment    58

Proposal for a directive

Recital 57

Text proposed by the Commission

Amendment

(57)  Member States should ensure the adequate record-keeping of all reports of infringement and that every report is retrievable within the competent authority and that information received through reports could be used as evidence in enforcement actions where appropriate.

(57)  Member States should ensure the adequate record-keeping of all reports of infringement and that every report is retrievable within the competent authority and that information received through reports could be used as evidence in enforcement actions where appropriate, while protecting the identity and privacy of the reporting person wherever possible, and, where relevant, made available to other Member States' or Union authorities respecting, where possible, the confidentiality of the identity of the reporting person. It remains the responsibility of both the transmitting and receiving authorities to ensure full protection of the identity of the reporting person and to ensure, where possible, his or her privacy.

Amendment    59

Proposal for a directive

Recital 58

Text proposed by the Commission

Amendment

(58)  Protection of personal data of the reporting and concerned person is crucial in order to avoid unfair treatment or reputational damages due to disclosure of personal data, in particular data revealing the identity of a person concerned. Hence, in line with the requirements of Regulation (EU) 2016/679 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data (General Data Protection Regulation, hereinafter also referred to as 'GDPR'), competent authorities should establish adequate data protection procedures specifically geared to the protection of the reporting person, the concerned person and any third person referred to in the report that should include a secure system within the competent authority with restricted access rights for authorised staff only.

(58)  Protection of personal data of the reporting and concerned person, as well as confidentiality of information, are crucial in order to avoid unfair treatment, any harassment or intimidation, or reputational damages due to disclosure of personal data, in particular data revealing the identity of a person concerned. Hence, in line with the requirements of Regulation (EU) 2016/679 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data (General Data Protection Regulation, hereinafter also referred to as 'GDPR'), competent authorities should establish adequate data protection procedures specifically geared to the protection of the reporting person, the concerned person and any third person referred to in the report that should include a secure system within the competent authority with restricted access rights for authorised staff only.

Amendment    60

Proposal for a directive

Recital 60

Text proposed by the Commission

Amendment

(60)  To enjoy protection, the reporting persons should reasonably believe, in light of the circumstances and the information available to them at the time of the reporting, that the matters reported by them are true. This reasonable belief should be presumed unless and until proven otherwise. This is an essential safeguard against malicious and frivolous or abusive reports, ensuring that those who deliberately and knowingly report wrong or misleading information do not enjoy protection. At the same time, it ensures that protection is not lost where the reporting person made an inaccurate report in honest error. In a similar vein, reporting persons should be entitled to protection under this Directive if they have reasonable grounds to believe that the information reported falls within its scope.

(60)  Reporting persons should enjoy the protection of this Directive whether they turn to internal or external reporting channels or use both, and without special conditions or order of preference. Reporting persons who exercise their right to public disclosure should enjoy protection under this Directive in the same way. Such protection should apply throughout the reporting procedure, including once the procedure has been concluded, unless it can be shown that there is no threat of retaliation. To enjoy protection, the reporting persons should be acting in good faith in the sense that they should reasonably believe, in light of the circumstances and the information available to them at the time of the reporting, that the matters reported by them are true. This reasonable belief should be presumed unless and until proven otherwise. This is an essential safeguard against malicious and frivolous or abusive reports, ensuring that those who deliberately and knowingly report wrong or misleading information do not enjoy protection and can be held accountable under the national laws of the Member States. At the same time, it ensures that protection is not lost where the reporting person made an inaccurate report in honest error. In a similar vein, reporting persons should be entitled to protection under this Directive if they have reasonable grounds to believe that the information reported falls within its scope.

Amendment    61

Proposal for a directive

Recital 61

Text proposed by the Commission

Amendment

(61)  The requirement of a tiered use of reporting channels, as a general rule, is necessary to ensure that the information gets to the persons who can contribute to the early and effective resolution of risks to the public interest as well as to prevent unjustified reputational damage from public disclosure. At the same time, some exceptions to its application are necessary, allowing the reporting person to choose the most appropriate channel depending on the individual circumstances of the case. Moreover, it is necessary to protect public disclosures taking into account democratic principles such as transparency and accountability, and fundamental rights such as freedom of expression, and media freedom, whilst balancing the interest of employers to manage their organisations and to protect their interests with the interest of the public to be protected from harm, in line with the criteria developed in the case-law of the European Court of Human Rights57.

(61)  It is necessary to ensure that all reporting channels, internal and external, are open to the reporting person and that the reporting person is free to choose the most appropriate channel depending on the individual circumstances of the case, so as to ensure that the information gets to the persons or entities who can contribute to the early and effective resolution of risks to the public interest. Moreover, it is necessary to protect public disclosures taking into account democratic principles such as transparency and accountability, and fundamental rights such as freedom of expression, media freedom and the right to information, whilst balancing the legitimate interest of employers to manage their organisations and to protect their reputation and interests with the interest of the public to be protected from harm, in line with the criteria developed in the case-law of the European Court of Human Rights57.

__________________

__________________

57 One of the criteria for determining whether retaliation against whistleblowers making public disclosures interferes with freedom of expression in a way which is not necessary in a democratic society, is whether the persons who made the disclosure had at their disposal alternative channels for making the disclosure (see, for instance, Guja v. Moldova [GC], no 14277/04, ECHR 2008);

57 One of the criteria for determining whether retaliation against whistleblowers making public disclosures interferes with freedom of expression in a way which is not necessary in a democratic society, is whether the persons who made the disclosure had at their disposal alternative channels for making the disclosure (see, for instance, Guja v. Moldova [GC], no 14277/04, ECHR 2008);

Amendment    62

Proposal for a directive

Recital 62

Text proposed by the Commission

Amendment

(62)  As a rule, reporting persons should first use the internal channels at their disposal and report to their employer. However, it may be the case that internal channels do not exist (in case of entities which are not under an obligation to establish such channels by virtue of this Directive or applicable national law) or that their use is not mandatory (which may be the case for persons who are not in an employment relationship), or that they were used but did not function properly (for instance the report was not dealt with diligently or within a reasonable timeframe, or no action was taken to address the breach of law despite the positive results of the enquiry).

(62)  As a rule, reporting persons should first use the internal or external channels at their disposal and report to their employer or to the competent authority. Moreover, protection is also to be granted in cases where Union law allows the reporting person to report directly to the bodies, offices or agencies of the Union, for example in the context of fraud concerning the Union budget, prevention and detection of money laundering and terrorist financing or in the area of financial services.

Amendment    63

Proposal for a directive

Recital 63

Text proposed by the Commission

Amendment

(63)  In other cases, internal channels could not reasonably be expected to function properly, for instance, where the reporting persons have valid reasons to believe that they would suffer retaliation in connection with the reporting; that their confidentiality would not be protected; that the ultimate responsibility holder within the work-related context is involved in the breach; that the breach might be concealed; that evidence may be concealed or destroyed; that the effectiveness of investigative actions by competent authorities might be jeopardised or that urgent action is required (for instance because of an imminent risk of a substantial and specific danger to the life, health and safety of persons, or to the environment. In all such cases, persons reporting externally to the competent authorities and, where relevant, to bodies, offices or agencies of the Union shall be protected. Moreover, protection is also to be granted in cases where Union legislation allows for the reporting person to report directly to the competent national authorities or bodies, offices or agencies of the Union, for example in the context of fraud against the Union budget, prevention and detection of money laundering and terrorist financing or in the area of financial services.

deleted

Amendment    64

Proposal for a directive

Recital 64

Text proposed by the Commission

Amendment

(64)  Persons making a public disclosure directly should also qualify for protection in cases where a breach remains unaddressed (for example, it was not properly assessed or investigated or no remedial action was taken) despite having been reported internally and/or externally following a tiered use of available channels; or in cases where reporting persons have valid reasons to believe that there is collusion between the perpetrator of the breach and the competent authority is reasonably suspected , that evidence may be concealed or destroyed, or that the effectiveness of investigative actions by competent authorities might be jeopardised; or in cases of imminent and manifest danger for the public interest, or where there is a risk of irreversible damage, including, inter alia, harm to physical integrity.

(64)  Persons making a public disclosure directly should also qualify for protection in cases where a breach remains unaddressed (for example, it was not properly assessed or investigated or no remedial action was taken) despite having been reported internally or externally or in both forms; or in cases where reporting persons have reasonable grounds to believe that there is collusion between the perpetrator of the breach and the competent authority is reasonably suspected, or that relevant external authorities have directly or indirectly participated in the alleged misconduct, that evidence could be concealed or destroyed, or that the effectiveness of investigative actions by competent authorities might be jeopardised; or in cases of imminent and manifest danger for or harm to the public interest, or where there is a risk of irreversible damage, including, inter alia, harm to physical integrity or where there is a situation of urgency.

Amendment    65

Proposal for a directive

Recital 64 a (new)

Text proposed by the Commission

Amendment

 

(64a)  Protecting whistleblowers helps prevent and remedy acts prejudicial to the public interest. While it is important to define a coherent and robust system for reporting infringements under this Directive, the system should fundamentally be based on the relevance and usefulness of the information reported to the organisation concerned, the competent authorities or the public. It is therefore imperative to ensure that the protection provided for in this Directive is afforded to any persons reporting or making a public disclosure as defined in this Directive, and that no argument can be used to deny them such protection.

Amendment    66

Proposal for a directive

Recital 65

Text proposed by the Commission

Amendment

(65)  Reporting persons should be protected against any form of retaliation, whether direct or indirect, taken by their employer or customer/recipient of services and by persons working for or acting on behalf of the latter, including co-workers and managers in the same organisation or in other organisations with which the reporting person is in contact in the context of his/her work-related activities, where retaliation is recommended or tolerated by the concerned person. Protection should be provided against retaliatory measures taken vis-à-vis the reporting person him/herself but also those that may be taken vis-à-vis the legal entity he/she represents, such as denial of provision of services, blacklisting or business boycotting. Indirect retaliation also includes actions taken against relatives of the reporting person who are also in a work-related connection with the latter’s employer or customer/recipient of services and workers’ representatives who have provided support to the reporting person.

(65)  Reporting persons should be protected against any form of retaliation, whether direct or indirect, taken by their employer or customer/recipient of services and by persons working for or acting on behalf of the latter, including co-workers and managers in the same organisation or in other organisations with which the reporting person is in contact in the context of his/her work-related activities, where retaliation is recommended or tolerated by the concerned person. Protection should be provided against retaliatory measures taken vis-à-vis the reporting person him/herself but also those that may be taken vis-à-vis the legal entity he/she represents, such as denial of provision of services, blacklisting or business boycotting. Indirect retaliation also includes actions taken against facilitators or relatives of the reporting person who are also in a work-related connection with the latter’s employer or customer/recipient of services and workers’ representatives who have provided support to the reporting person.

Amendment    67

Proposal for a directive

Recital 66

Text proposed by the Commission

Amendment

(66)  Where retaliation occurs undeterred and unpunished, it has a chilling effect on potential whistleblowers. A clear prohibition of retaliation in law has an important dissuasive effect, further strengthened by provisions for personal liability and penalties for the perpetrators of retaliation.

(66)  Where retaliation occurs undeterred and unpunished, it has a chilling effect on potential whistleblowers. A clear prohibition of retaliation in law has an important dissuasive effect, and it should be strengthened by provisions for personal liability and penalties for the perpetrators of retaliation, and for those in management positions who facilitate or ignore such retaliation;

Amendment    68

Proposal for a directive

Recital 67

Text proposed by the Commission

Amendment

(67)  Potential whistleblowers who are not sure about how to report or whether they will be protected in the end may be discouraged from reporting. Member States should ensure that relevant information is provided in a user-friendly way and is easily accessible to the general public. Individual, impartial and confidential advice, free of charge, should be available on, for example, whether the information in question is covered by the applicable rules on whistleblower protection, which reporting channel may best be used and which alternative procedures are available in case the information is not covered by the applicable rules (‘signposting’). Access to such advice can help ensure that reports are made through the appropriate channels, in a responsible manner and that breaches and wrongdoings are detected in a timely manner or even prevented.

(67)  Potential whistleblowers who are not sure about how to report or whether they will be protected in the end may be discouraged from reporting. Member States should ensure that relevant information is provided in a way that is easily understandable and easily accessible to the general public. Individual, impartial and confidential advice, free of charge, should be available on, for example, whether the information in question is covered by the applicable rules on whistleblower protection, which reporting channel may best be used and which alternative procedures are available in case the information is not covered by the applicable rules (‘signposting’). Access to such advice, in particular through the competent authorities, can help ensure that reports are made through the appropriate channels, in a responsible manner and that breaches and wrongdoings are detected in a timely manner or even prevented.

Amendment    69

Proposal for a directive

Recital 67 a (new)

Text proposed by the Commission

Amendment

 

(67a)  In Member States which provide extensive protection for reporting persons, there are a variety of mechanisms in place to accompany and support reporting persons. Based on the existing best practices and the varying circumstances in Member States, it should be possible that individual advice and accurate information be provided by an independent single and clearly identified authority or an information centre established by the Member State provided that sufficient guarantees are supplied. That advice or information should be provided to any person who so requests. The information or advice could concern matters such as the protection measures, the appropriateness of the reporting channels or the scope of the Directive.

Amendment    70

Proposal for a directive

Recital 69

Text proposed by the Commission

Amendment

(69)  It should not be possible to waive the rights and obligations established by this Directive by contractual means. Individuals’ legal or contractual obligations, such as loyalty clauses in contracts or confidentiality/non-disclosure agreements, cannot be relied on to preclude workers from reporting, to deny protection or to penalise them for having done so. At the same time, this Directive should not affect the protection of legal and other professional privilege as provided for under national law.

(69)  It should not be possible to waive the rights and obligations established by this Directive by contractual means. Individuals’ legal or contractual obligations, such as loyalty clauses in contracts or confidentiality/non-disclosure agreements, cannot be relied on to preclude workers from reporting, to deny protection or to penalise them for having done so. At the same time, this Directive should not affect the protection of legal and other professional privilege, such as medical secrecy and client-lawyer privilege, as provided for under national law, or of the confidentiality required to protect national security where provided for under national law.

Amendment    71

Proposal for a directive

Recital 70

Text proposed by the Commission

Amendment

(70)  Retaliatory measures are likely to be presented as being justified on grounds other than the reporting and it can be very difficult for reporting persons to prove the link between the two, whilst the perpetrators of retaliation may have greater power and resources to document the action taken and the reasoning. Therefore, once the reporting person demonstrates prima facie that he/she made a report or disclosure in line with this Directive and suffered a detriment, the burden of proof should shift to the person who took the detrimental action, who should then demonstrate that their the action taken was not linked in any way to the reporting or the disclosure.

(70)  Retaliatory measures are likely to be presented as being justified on grounds other than the reporting or public disclosure and it can be very difficult for reporting persons to prove the link between the two, whilst the perpetrators of retaliation may have greater power and resources to document the action taken and the reasoning. Therefore, once the reporting person demonstrates prima facie that he/she made a report or disclosure in line with this Directive and suffered a detriment, the burden of proof should shift to the person who took the detrimental action, who should then demonstrate that their the action taken was not linked in any way to the reporting or the disclosure.

Amendment    72

Proposal for a directive

Recital 71

Text proposed by the Commission

Amendment

(71)  Beyond an explicit prohibition of retaliation provided in law, it is crucial that reporting persons who do suffer retaliation have access to legal remedies. The appropriate remedy in each case will be determined by the kind of retaliation suffered. It may take the form of actions for reinstatement (for instance, in case of dismissal, transfer or demotion, or of withholding of training or promotion) or for restauration of a cancelled permit, licence or contract; compensation for actual and future financial losses (for lost past wages, but also for future loss of income, costs linked to a change of occupation); compensation for other economic damage such as legal expenses and costs of medical treatment, and for intangible damage (pain and suffering).

(71)  Beyond an explicit prohibition of retaliation provided in law, it is crucial that reporting persons who do suffer retaliation have access to legal remedies and compensation. The appropriate remedy in each case will be determined by the kind of retaliation suffered, and damage suffered should be compensated in full. It may take the form of actions for reinstatement (for instance, in case of dismissal, transfer or demotion, or of withholding of training or promotion) or for restoration of a cancelled permit, licence or contract; compensation for actual and future financial losses (for lost past wages, but also for future loss of income, costs linked to a change of occupation); compensation for other economic damage such as legal expenses and costs of medical and psychological treatment, and for intangible damage (pain and suffering).

Amendment    73

Proposal for a directive

Recital 72

Text proposed by the Commission

Amendment

(72)  The types of legal action may vary between legal systems but they should ensure as full and effective a remedy as possible. Remedies should not discourage potential future whistleblowers. For instance, allowing for compensation as an alternative to reinstatement in case of dismissal might give rise to a systematic practice in particular by larger organisations, thus having a dissuasive effect on future whistleblowers.

(72)  The types of legal action may vary between legal systems but they should ensure full compensation for the damage suffered.

Amendment    74

Proposal for a directive

Recital 73

Text proposed by the Commission

Amendment

(73)  Of particular importance for reporting persons are interim remedies pending the resolution of legal proceedings that can be protracted. Interim relief can be in particular necessary in order to stop threats, attempts or continuing acts of retaliation, such as harassment at the workplace, or to prevent forms of retaliation such as dismissal, which might be difficult to reverse after the lapse of lengthy periods and which can ruin financially the individual — a perspective which can seriously discourage potential whistleblowers.

(73)  Of particular importance for reporting persons are interim remedies pending the resolution of legal proceedings that can be protracted. Interim relief can be in particular necessary in order to stop threats, attempts or continuing acts of retaliation, such as harassment outside and at the workplace, or to prevent forms of retaliation such as verbal abuse or physical violence, or dismissal, which might be difficult to reverse after the lapse of lengthy periods and which can ruin financially the individual — a perspective which can seriously discourage potential whistleblowers.

Amendment    75

Proposal for a directive

Recital 74

Text proposed by the Commission

Amendment

(74)  Action taken against reporting persons outside the work-related context, through proceedings, for instance, related to defamation, breach of copyright, trade secrets, confidentiality and personal data protection, can also pose a serious deterrent to whistleblowing. Directive (EU) 2016/943 of the European Parliament and of the Council58 exempts reporting persons from the civil redress measures, procedures and remedies it provides for, in case the alleged acquisition, use or disclosure of the trade secret was carried out for revealing misconduct, wrongdoing or illegal activity, provided that the respondent acted for the purpose of protecting the general public interest. Also in other proceedings, reporting persons should be able to rely on having made a report or disclosure in accordance with this Directive as a defence. In such cases, the person initiating the proceedings should carry the burden to prove any intent on the part of the reporting person to violate the law.

(74)  Action taken against reporting persons outside the work-related context, through proceedings, for instance, related to defamation, breach of copyright, trade secrets, confidentiality and personal data protection, can also pose a serious deterrent to whistleblowing. Directive (EU) 2016/943 of the European Parliament and of the Council58 exempts reporting persons from the civil redress measures, procedures and remedies it provides for, in case the alleged acquisition, use or disclosure of the trade secret was carried out for revealing misconduct, wrongdoing or illegal activity, provided that the respondent acted for the purpose of protecting the general public interest. This Directive should therefore be without prejudice to the provisions laid down in Directive (EU) 2016/943 of the European Parliament and of the Council and both acts should be considered as being complementary. Therefore, the protection, procedures and conditions provided for in this Directive should be applicable to cases covered by its material scope even if the reported information could be qualified as a trade secret. Directive (EU) 2016/943 should apply in other cases. Also in other proceedings, reporting persons should be able to rely on having made a report or disclosure in accordance with this Directive as a defence. In such cases, the person initiating the proceedings should carry the burden to prove any intent on the part of the reporting person to violate the law.

_________________

_________________

58 Directive (EU) 2016/943 of the European Parliament and of the Council of 8 June 2016 on the protection of undisclosed know-how and business information (trade secrets) against their unlawful acquisition, use and disclosure (OJ L 157, 15.6.2016, p. 1).

58 Directive (EU) 2016/943 of the European Parliament and of the Council of 8 June 2016 on the protection of undisclosed know-how and business information (trade secrets) against their unlawful acquisition, use and disclosure (OJ L 157, 15.6.2016, p. 1).

Amendment    76

Proposal for a directive

Recital 75

Text proposed by the Commission

Amendment

(75)  A significant cost for reporting persons contesting retaliation measures taken against them in legal proceedings can be the relevant legal fees. Although they could recover these fees at the end of the proceedings, they might not be able to cover them up front, especially if they are unemployed and blacklisted. Assistance for criminal legal proceedings, particularly in accordance with the provisions of Directive (EU) 2016/1919 of the European Parliament and of the Council59 and more generally support to those who are in serious financial need might be key, in certain cases, for the effective enforcement of their rights to protection.

(75)  A significant cost for reporting persons contesting retaliation measures taken against them in legal proceedings can be the relevant legal fees. Although they could recover these fees at the end of the proceedings, they might not be able to cover them up front, especially if they are unemployed and blacklisted. Assistance for criminal legal proceedings, particularly in accordance with the provisions of Directive (EU) 2016/1919 of the European Parliament and of the Council59 and more generally support to those who are in serious financial need is key for the effective enforcement of their rights to protection. Whistleblowers should also be able to claim compensation for any harassment suffered or for the loss of their current or future livelihood, if the damage occurred in retaliation.

_________________

_________________

59 Directive (EU) 2016/1919 of the European Parliament and of the Council of 26 October 2016 on legal aid for suspects and accused persons in criminal proceedings and for requested persons in European arrest warrant proceedings (OJ L 297 4.11.2016, p. 1).

59 Directive (EU) 2016/1919 of the European Parliament and of the Council of 26 October 2016 on legal aid for suspects and accused persons in criminal proceedings and for requested persons in European arrest warrant proceedings (OJ L 297 4.11.2016, p. 1).

Amendment    77

Proposal for a directive

Recital 76

Text proposed by the Commission

Amendment

(76)  The rights of the concerned person should be protected in order to avoid reputational damages or other negative consequences. Furthermore, the rights of defence and access to remedies of the concerned person should be fully respected at every stage of the procedure following the report, in accordance with Articles 47 and 48 of the Charter of Fundamental Rights of the European Union. Member States should ensure the right of defence of the concerned person, including the right to access to the file, the right to be heard and the right to seek effective remedy against a decision concerning the concerned person under the applicable procedures set out in national law in the context of investigations or subsequent judicial proceedings.

(76)  The rights of the concerned person should be protected in order to avoid reputational damages or other negative consequences. Furthermore, the rights of defence and access to remedies of the concerned person should be fully respected at every stage of the procedure following the report, in accordance with Articles 47 and 48 of the Charter of Fundamental Rights of the European Union. Member States should protect the confidentiality of the identity of the person concerned and ensure the rights of defence, including the right to access to the file, the right to be heard and the right to seek effective remedy against a decision concerning the concerned person under the applicable procedures set out in national law in the context of investigations or subsequent judicial proceedings. To that end suitable measures should be taken to make individuals and civil society more aware of such rights.

Amendment    78

Proposal for a directive

Recital 77

Text proposed by the Commission

Amendment

(77)  Any person who suffers prejudice, whether directly or indirectly, as a consequence of the reporting or disclosure of inaccurate or misleading information should retain the protection and the remedies available to him or her under the rules of general law. Where such inaccurate or misleading report or disclosure was made deliberately and knowingly, the concerned persons should be entitled to compensation in accordance with national law.

(77)  Any person who suffers prejudice, whether directly or indirectly, as a consequence of the reporting or disclosure of inaccurate or misleading information should retain the protection and the remedies available to him or her under the rules of general law. Where such inaccurate or misleading report or disclosure was made deliberately and knowingly, whistleblowers should not be entitled to enjoy protection and the concerned persons should be entitled to compensation in accordance with national law.

Amendment    79

Proposal for a directive

Recital 78

Text proposed by the Commission

Amendment

(78)  Penalties are necessary to ensure the effectiveness of the rules on whistleblower protection. Penalties against those who take retaliatory or other adverse actions against reporting persons can discourage further such actions. Penalties against persons who make a report or disclosure demonstrated to be knowingly false are necessary to deter further malicious reporting and preserve the credibility of the system. The proportionality of such penalties should ensure that they do not have a dissuasive effect on potential whistleblowers.

(78)  Penalties are necessary to ensure the effectiveness of the rules on whistleblower protection. Penalties against those who take retaliatory or other adverse actions against reporting persons can discourage further such actions. Penalties against persons who make a report or disclosure demonstrated to be knowingly false are also necessary to deter further malicious reporting and preserve the credibility of the system. Where Member States provide for penalties in cases such as defamation or dissemination of false information, those penalties could also be applicable to reports or disclosures that have been demonstrated to be knowingly false. The proportionality of such penalties should ensure that they do not have a dissuasive effect on potential whistleblowers.

Amendment    80

Proposal for a directive

Recital 80

Text proposed by the Commission

Amendment

(80)  This Directive introduces minimum standards and Member States should have the power to introduce or maintain more favourable provisions to the reporting person, provided that such provisions do not interfere with the measures for the protection of concerned persons.

(80)  This Directive introduces minimum standards and Member States should have the power and be encouraged to introduce or maintain more favourable provisions to the reporting person. The transposition of this Directive shall under no circumstances provide grounds for reducing the general level of protection already afforded to reporting persons under national law in the areas to which it applies.

Amendment    81

Proposal for a directive

Recital 82

Text proposed by the Commission

Amendment

(82)  The material scope of this Directive is based on the identification of areas where the introduction of whistleblower protection appears justified and necessary on the basis of currently available evidence. Such material scope may be extended to further areas or Union acts, if this proves necessary as a means of strengthening their enforcement in the light of evidence that may come to the fore in the future or on the basis of the evaluation of the way in which this Directive has operated.

(82)  The material scope of this Directive is based on the identification of areas where the introduction of whistleblower protection appears justified and necessary on the basis of currently available evidence. Such material scope may be extended to further areas or Union acts, if this proves necessary as a means of strengthening their enforcement in the light of evidence that the Commission should continue to gather and that may come to the fore in the future or on the basis of the evaluation of the way in which this Directive has operated.

Amendment    82

Proposal for a directive

Recital 84

Text proposed by the Commission

Amendment

(84)  The objective of this Directive, namely to strengthen enforcement in certain policy areas and acts where breaches of Union law can cause serious harm to the public interest through effective whistleblower protection, cannot be sufficiently achieved by the Member States acting alone or in an uncoordinated manner, but can rather be better achieved by Union action providing minimum standards of harmonisation on whistleblower protection. Moreover, only Union action can provide coherence and align the existing Union rules on whistleblower protection. Therefore, the Union may adopt measures in accordance with the principle of subsidiarity as set out in Article 5 of the Treaty on European Union. In accordance with the principle of proportionality, as set out in that Article, this Directive does not go beyond what is necessary in order to achieve this objective.

(84)  The objective of this Directive, namely to strengthen enforcement in certain policy areas and acts where breaches of Union law can cause harm to the public interest through effective whistleblower protection, cannot be sufficiently achieved by the Member States acting alone or in an uncoordinated manner, but can rather be better achieved by Union action providing minimum standards of harmonisation on whistleblower protection. Moreover, only Union action can provide coherence and align the existing Union rules on whistleblower protection. Therefore, the Union may adopt measures in accordance with the principle of subsidiarity as set out in Article 5 of the Treaty on European Union. In accordance with the principle of proportionality, as set out in that Article, this Directive does not go beyond what is necessary in order to achieve this objective.

Amendment    83

Proposal for a directive

Recital 85

Text proposed by the Commission

Amendment

(85)  This Directive respects fundamental rights and observes the principles recognised in particular by the Charter of Fundamental Rights of the European Union. Accordingly, this Directive must be implemented in accordance with those rights and principles. In particular, this Directive seeks to ensure full respect for freedom of expression and information, the right to protection of personal data, the freedom to conduct a business, the right to a high level of consumer protection, the right to an effective remedy and the rights of defence.

(85)  This Directive respects fundamental rights and the principles recognised in particular by the Charter of Fundamental Rights of the European Union, in particular Article 11 thereof. Accordingly, this Directive must be implemented in accordance with those rights and principles by ensuring full respect for, inter alia, freedom of expression and information, the right to protection of personal data, the freedom to conduct a business, the right to a high level of consumer protection, the right to fair and just working conditions, the right to a high level of human health protection, the right to a high level of environmental protection, the right to good administration, the right to an effective remedy and the rights of the defence. Particular consideration should also be given to the European Convention on Human Rights, in particular Article 10 thereof.

Amendment    84

Proposal for a directive

Recital 85 a (new)

Text proposed by the Commission

Amendment

 

(85a)  This Directive should be without prejudice to Member States' freedom to introduce the same or similar rules for breaches of national law, thereby providing a coherent and comprehensive framework for the protection of persons reporting on breaches.

Amendment    85

Proposal for a directive

Recital 85 b (new)

Text proposed by the Commission

Amendment

 

(85b)   Particular regard should be had to the European Parliament resolution of 14 February 2017 on the role of whistleblowers in the protection of EU’s financial interests, and to the European Parliament resolution of 24 October 2017 on legitimate measures to protect whistle-blowers acting in the public interest when disclosing the confidential information of companies and public bodies.

Amendment    86

Proposal for a directive

Article -1 (new)

Text proposed by the Commission

Amendment

 

Article -1

 

Purpose

 

The purpose of this Directive is to enhance the protection of persons reporting breaches of Union law and to enhance the enforcement of the latter in order to safeguard the public interest, by laying down common minimum standards for the protection of persons reporting on unlawful activities or abuses of law in the areas specified in Article 1.

Amendment    87

Proposal for a directive

Article 1

Text proposed by the Commission

Amendment

Article 1

Article 1

Material scope

Material scope

1.  With a view to enhancing the enforcement of Union law and policies in specific areas, this Directive lays down common minimum standards for the protection of persons reporting on the following unlawful activities or abuse of law:

1.  This Directive lays down common minimum standards for the protection of persons reporting on the following unlawful activities or abuse of law.

(a)  breaches falling within the scope of the Union acts set out in the Annex (Part I and Part II) as regards the following areas:

(a)  breaches of Union acts, which include, inter alia, the acts set out in the Annex (Part I and Part II) and the acts implementing them, that relate to the following areas:

(i)  public procurement;

(i)  public procurement;

(ii)  financial services, prevention of money laundering and terrorist financing;1

(ii)  financial services, tax evasion, tax fraud, tax avoidance, prevention of money laundering and terrorist financing; 1

(iii)  product safety;

(iii)  product safety;

(iv)  transport safety;

(iv)  product safety;

(v)  protection of the environment;

(v)  protection of the environment;

(vi)  nuclear safety;

(vi)  nuclear safety;

(vii)  food and feed safety, animal health and welfare;

(vii)  food and feed safety, animal health and welfare;

(viii)  public health;

(viii)  public health;

(ix)  consumer protection;

(ix)  consumer protection;

(x)  protection of privacy and personal data, and security of network and information systems.

(x)  protection of privacy and personal data, and security of network and information systems; and

 

(xa)  employment, working conditions, workers' rights and the principle of equal opportunities and treatment between men and women at work.

(b)  breaches of Articles 101, 102, 106, 107 and 108 TFEU and breaches falling within the scope of Council Regulation (EC) No 1/2003 and Council Regulation (EU) No 2015/1589;

(b)  breaches of Articles 101, 102, 106, 107 and 108 TFEU and breaches falling within the scope of Council Regulation (EC) No 1/2003 and Council Regulation (EU) No 2015/1589;

(c)  breaches affecting the financial interests of the Union as defined by Article 325 TFEU and as further specified, in particular, in Directive (EU) 2017/1371 and Regulation (EU, Euratom) No 883/2013;

(c)  breaches affecting the financial interests of the Union as defined by Article 325 TFEU and as further specified, in particular, in Directive (EU) 2017/1371 and Regulation (EU, Euratom) No 883/2013;

(d)  breaches relating to the internal market, as referred to in Article 26(2) TFEU, as regards acts which breach the rules of corporate tax or arrangements whose purpose is to obtain a tax advantage that defeats the object or purpose of the applicable corporate tax law.

(d)  breaches relating to the internal market, as referred to in Article 26(2) TFEU, as regards acts which breach the rules of corporate tax or arrangements whose purpose is to obtain a tax advantage that defeats the object or purpose of the applicable corporate tax law.

2.  Where specific rules on the reporting of breaches are provided for in sector-specific Union acts listed in Part 2 of the Annex, those rules shall apply. The provisions of this Directive shall be applicable for all matters relating to the protection of reporting persons not regulated in those sector-specific Union acts.

2.  Where specific rules on the reporting of breaches are provided for in sector-specific Union acts listed in Part 2 of the Annex, those rules shall apply. The provisions of this Directive shall be applicable for all matters relating to the protection of reporting persons not regulated in those sector-specific Union acts.

________________

______________

1 ECON and LIBE exclusive competence

1 ECON and LIBE exclusive competence

Amendment    88

Proposal for a directive

Article 2

Text proposed by the Commission

Amendment

Article 2

Article 2

Personal scope

Personal scope

1.  This Directive shall apply to reporting persons working in the private or public sector who acquired information on breaches in a work-related context including, at least, the following:

1.  This Directive shall apply to reporting persons and facilitators, acting in good faith, working in the private or public sector and who acquired information on breaches in a work-related context including, at least, the following:

(a)  persons having the status of worker, with the meaning of Article 45 TFEU;

(a)  persons having the status of worker, within the meaning of national law and national practice or within the meaning of Article 45 TFEU, including civil servants;

(b)  persons having the status of self-employed, with the meaning of Article 49 TFEU;

(b)  persons having the status of self-employed, with the meaning of Article 49 TFEU;

(c)  shareholders and persons belonging to the management body of an undertaking, including non-executive members, as well as volunteers and unpaid trainees;

(c)  shareholders and persons belonging to the management body of an undertaking, including non-executive members, as well as volunteers and paid or unpaid trainees;

(d)  any persons working under the supervision and direction of contractors, subcontractors and suppliers.

(d)  any persons working under the supervision and direction of contractors, subcontractors, service providers and suppliers.

2.  This Directive shall also apply to reporting persons whose work-based relationship is yet to begin in cases where information concerning a breach has been acquired during the recruitment process or other pre-contractual negotiation.

2.  This Directive shall also apply to reporting persons acting in good faith whose work-based relationship is yet to begin in cases where information concerning a breach has been acquired during the recruitment process or other pre-contractual negotiation, as well as to reporting persons whose work-based relationship has ceased.

 

 

Amendment    89

Proposal for a directive

Article 3

Text proposed by the Commission

Amendment

Article 3

Article 3

Definitions

Definitions

For the purposes of this Directive, the following definitions shall apply:

For the purposes of this Directive, the following definitions shall apply:

(1)  ‘breaches’ means actual or potential unlawful activities or abuse of law relating to the Union acts and areas falling within the scope referred to in Article 1 and in the Annex;

(1)  ‘breaches’ means actual or potential unlawful activities or abuse of law relating to the Union acts and areas falling within the scope referred to in Article 1 and in the Annex;

(2)  ‘unlawful activities’ means acts or omissions contrary to Union law;

(2)  ‘unlawful activities’ means acts or omissions contrary to Union law;

(3)  ‘abuse of law’ means acts or omissions falling within the scope of Union law which do not appear to be unlawful in formal terms but defeat the object or the purpose pursued by the applicable rules;

(3)  ‘abuse of law’ means acts or omissions falling within the scope of Union law which do not appear to be unlawful in formal terms but defeat the object or the purpose pursued by the applicable rules;

(4)  ‘information on breaches’ means evidence about actual breaches as well as reasonable suspicions about potential breaches which have not yet materialised;

(4)  ‘information on breaches’ means evidence about actual breaches as well as reasonable suspicions about potential breaches which have not yet materialised;

(5)  ‘report’ means the provision of information relating to a breach which has occurred or is likely to occur in the organisation at which the reporting person works or has worked or in another organisation with which he or she is or was in contact through his or her work;

(5)  ‘report’ means the provision of information relating to a breach which has occurred or is likely to occur in the organisation at which the reporting person works or has worked or in another organisation with which he or she is or was in contact through his or her work;

(6)  ‘internal reporting’ means provision of information on breaches within a public or private legal entity;

(6)  ‘internal reporting’ means provision of information on breaches within a public or private legal entity;

(7)  ‘external reporting’ means provision of information on breaches to the competent authorities;

(7)  ‘external reporting’ means provision of information on breaches to the competent authorities;

(8)  ‘disclosure’ means making information on breaches acquired within the work-related context available to the public domain;

(8)  ‘disclosure’ means making information on breaches acquired within the work-related context available to the public domain;

(9)  ‘reporting person’ means a natural or legal person who reports or discloses information on breaches acquired in the context of his or her work-related activities;

(9)  ‘reporting person’ means a natural or legal person who reports or discloses information on breaches acquired in the context of his or her work-related activities;

 

(9a)  ‘facilitator’ means a natural person who assists or aids the reporting person in the reporting process in a work-related context;

(10)  ‘work-related context’ means current or past work activities in the public or private sector through which, irrespective of their nature, persons may acquire information on breaches and within which these persons may suffer retaliation if they report them.

(10)  ‘work-related context’ means current or past work activities in the public or private sector through which, irrespective of their nature, persons may acquire information on breaches and within which these persons may suffer retaliation if they report them;

(11)  ‘concerned person’ means a natural or legal person who is referred to in the report or disclosure as a person to whom the breach is attributed or with which he or she is associated;

(11)  ‘concerned person’ means a natural or legal person who is referred to in the report or disclosure as a person to whom the breach is attributed or with which he or she is associated;

(12)  ‘retaliation’ means any threatened or actual act or omission prompted by the internal or external reporting which occurs in a work-related context and causes or may cause unjustified detriment to the reporting person;

(12)  ‘retaliation’ means any threatened or actual, direct or indirect, act or omission prompted by the internal or external reporting or public disclosure which occurs in a work-related context and causes or may cause unjustified detriment to the reporting person;

(13)  ‘follow-up’ means any action taken by the recipient of the report, made internally or externally, to assess the accuracy of the allegations made in the report and, where relevant, to address the breach reported, including actions such as internal enquiry, investigation, prosecution, action for recovery of funds and closure;

(13)  ‘follow-up’ means any action taken by the recipient of the report, made internally or externally, to assess the accuracy of the allegations made in the report and, where relevant, to address the breach reported, including actions such as internal enquiry, investigation, prosecution, action for recovery of funds and closure;

(14)  ‘competent authority’ means any national authority entitled to receive reports in accordance with Chapter III and designated to carry out the duties provided for in this Directive, in particular as regards the follow up of reports.

(14)  ‘competent authority’ means any national authority entitled to receive reports in accordance with Chapter III and designated to carry out the duties provided for in this Directive, in particular as regards the follow up of reports;

 

(14a)  ‘good faith’ means the reasonable belief of a reporting person, in light of the circumstances and the information available to that person at the time of the reporting, that the information reported by that person is true and that it falls within the scope of this Directive.

Amendment    90

Proposal for a directive

Article 4

Text proposed by the Commission

Amendment

Article 4

Article 4

Obligation to establish internal channels and procedures for reporting and follow-up of reports

Obligation to establish internal channels and procedures for reporting and follow-up of reports

1.  Member States shall ensure that legal entities in the private and in the public sector establish internal channels and procedures for reporting and following up on reports, following consultations with social partners, if appropriate.

1.  Member States shall ensure, in accordance with national practices, that employers and other legal entities in the private and in the public sector establish internal channels and procedures for reporting and following up on reports, following consultation and in agreement with the social partners.

2.  Such channels and procedures shall allow for reporting by employees of the entity. They may allow for reporting by other persons who are in contact with the entity in the context of their work-related activities, referred to in Article 2(1)(b),(c) and (d), but the use of internal channels for reporting shall not be mandatory for these categories of persons.

2.  Such channels and procedures shall allow for reporting by employees of the entity. They shall allow for reporting by other persons who are in contact with the entity in the context of their work-related activities, referred to in Article 2(1)(b),(c) and (d). Those reporting channels shall be clearly defined by the entity and easily accessible both within and from outside the entity.

3.  The legal entities in the private sector referred to in paragraph 1 are the following:

3.  The legal entities in the private sector referred to in paragraph 1 are the following:

(a)  private legal entities with 50 or more employees;

(a)  private legal entities with 50 or more employees;

(b)  private legal entities with an annual business turnover or annual balance sheet total of EUR 10 million or more;

(b)  private legal entities with an annual business turnover or annual balance sheet total of EUR 10 million or more;

(c)  private legal entities of any size operating in the area of financial services or vulnerable to money laundering or terrorist financing, as regulated under the Union acts referred to in the Annex.

(c)  private legal entities of any size operating in the area of financial services or vulnerable to money laundering or terrorist financing, as regulated under the Union acts referred to in the Annex.

 

3a.  By way of derogation from points (a) and (b) of paragraph 3, Member States may exclude from the legal entities in the private sector referred to in paragraph 1 the following private legal entities:

 

(a)  private legal entities with fewer than 250 employees;

 

(b)  private legal entities with an annual turnover not exceeding EUR 50 million, and/or an annual balance sheet total not exceeding EUR 43 million.

4.  Following an appropriate risk assessment taking into account the nature of activities of the entities and the ensuing level of risk, Member States may require small private legal entities, as defined in Commission Recommendation of 6 May 200362, other than those referred to in paragraph 3(c) to establish internal reporting channels and procedures.

4.  Following an appropriate risk assessment taking into account the nature of activities of the entities and the ensuing level of risk for, in particular, the environment and public health, Member States may require small private legal entities, as defined in Commission Recommendation of 6 May 200362, other than those referred to in paragraph 3(c) to establish internal reporting channels and procedures.

5.  Any decision taken by a Member State pursuant to paragraph 4 shall be notified to the Commission, together with a justification and the criteria used in the risk assessment. The Commission shall communicate that decision to the other Member States.

5.  Any decision taken by a Member State pursuant to paragraph 4 shall be notified to the Commission, together with a justification and the criteria used in the risk assessment. The Commission shall communicate that decision to the other Member States.

6.  The legal entities in the public sector referred to in paragraph 1 shall be the following:

6.  The legal entities in the public sector referred to in paragraph 1 shall be the following:

(a)  state administration;

(a)  state administration;

(b)  regional administration and departments;

(b)  regional administration and departments;

(c)  municipalities with more than 10 000 inhabitants;

(c)  municipalities with more than 10 000 inhabitants;

(d)  other entities governed by public law.

(d)  other entities governed by public law.

_________________

_______________

62 Commission Recommendation of 6 May 2003 concerning the definition of micro, small and medium-sized enterprises OJ L 124, 20.5.2003, p. 36.

62 Commission Recommendation of 6 May 2003 concerning the definition of micro, small and medium-sized enterprises OJ L 124, 20.5.2003, p. 36.

Justification

Detailed provisions on internal reporting channels should remain a national competence for Member States that have strong provisions in their national legislation.

Amendment    91

Proposal for a directive

Article 5

Text proposed by the Commission

Amendment

Article 5

Article 5

Procedures for internal reporting and follow-up of reports

Procedures for internal reporting and follow-up of reports

1.  The procedures for reporting and following-up of reports referred to in Article 4 shall include the following:

1.  The procedures for reporting and following-up of reports referred to in Article 4 may include the following:

(a)  channels for receiving the reports which are designed, set up and operated in a manner that ensures the confidentiality of the identity of the reporting person and prevents access to non-authorised staff members;

(a)  channels for receiving the reports which are designed, set up and operated in a secure manner that ensures the confidentiality of the identity of the reporting person and of the facilitators as well as of the concerned person, and prevents access to non-authorised staff members;

 

(aa)  a confidential acknowledgment of receipt of the report to the reporting person within no more than seven days of that receipt;

(b)  the designation of a person or department competent for following up on the reports;

(b)  the designation of an impartial person or independent department competent for following up on the reports.

(c)  diligent follow up to the report by the designated person or department;

(c)  diligent follow up to the report by the designated person or department and, where necessary, appropriate and timely action.

 

(ca)  diligent follow up as regards anonymous reporting;

(d)  a reasonable timeframe, not exceeding three months following the report, to provide feedback to the reporting person about the follow-up to the report;

(d)  a reasonable timeframe, not exceeding two months from the acknowledgment of receipt of the report, to provide feedback to the reporting person about the follow-up to the report. That timeframe may be extended to four months, where necessary due to the specific circumstances of the case, in particular where the subject of the report is of a nature and complexity such that a lengthy investigation may be required;

 

(da)  the possibility for the reporting person to be consulted and to present comments during the course of the investigation and the possibility for those comments to be taken into account where deemed relevant by the person or department referred to in point (b); and

(e)  clear and easily accessible information regarding the procedures and information on how and under what conditions reports can be made externally to competent authorities pursuant to Article 13(2) and, where relevant, to bodies, offices or agencies of the Union.

(e)  clear and easily accessible information regarding the procedures and information on how and under what conditions reports can be made externally to competent authorities pursuant to Article 13(2) and, where relevant, to bodies, offices or agencies of the Union.

2.  The channels provided for in point (a) of paragraph 1 shall allow for reporting in all of the following ways:

2.  The channels provided for in point (a) of paragraph 1 shall allow for reporting in any of the following ways:

(a)  written reports in electronic or paper format and/or oral report through telephone lines, whether recorded or unrecorded;

(a)  written reports in electronic or paper format and/or oral report through telephone lines, or other voice messaging systems, whether recorded, with the prior consent of the reporting person or unrecorded;

(b)  physical meetings with the person or department designated to receive reports.

(b)  physical meetings with the person or department designated to receive reports.

Reporting channels may be operated internally by a person or department designated for that purpose or provided externally by a third party, provided that the safeguards and requirements referred to in point (a) of paragraph 1 are respected.

 

3.  The person or department referred to in point (b) of paragraph 1 may be the same person who is competent for receiving the reports. Additional persons may be designated as “trusted persons” from whom reporting persons and those considering reporting may seek confidential advice.

3.  The person or department referred to in point (b) of paragraph 1 may be the same person who is competent for receiving the reports, provided that the confidentiality and impartiality safeguards referred to in points (a) and (b) of paragraph 1 are complied with. Additional persons may be designated as “trusted persons” from whom reporting persons and those considering reporting may seek confidential advice.

 

3a.  The procedures for reporting and following up of reports referred to in Article 4 shall ensure that the reporting person or any person considering reporting has the right to be accompanied by a workers’ representative at all stages of the procedure, including during physical meetings as provided for under this Article.

Amendment    92

Proposal for a directive

Article 6

Text proposed by the Commission

Amendment

Article 6

Article 6

Obligation to establish external reporting channels and to follow up on reports

Obligation to establish external reporting channels and to follow up on reports

1.  Member States shall designate the authorities competent to receive and handle reports.

1.  Member States shall designate the authorities competent to receive and handle reports.

2.  Member States shall ensure that the competent authorities:

2.  Member States shall ensure that the competent authorities:

(a)  establish independent and autonomous external reporting channels, which are both secure and ensure confidentiality, for receiving and handling information provided by the reporting person;

(a)  establish independent and autonomous external reporting channels, which are both secure and ensure confidentiality, for receiving and handling information provided by the reporting person;

(b)  give feedback to the reporting person about the follow-up of the report within a reasonable timeframe not exceeding three months or six months in duly justified cases;

deleted

(c)  transmit the information contained in the report to competent bodies, offices or agencies of the Union, as appropriate, for further investigation, where provided for under national or Union law.

(c)  transmit the information contained in the report to competent bodies, offices or agencies of the Union, as appropriate, for further investigation, where provided for under national or Union law.

3.  Member States shall ensure that competent authorities follow up on the reports by taking the necessary measures and investigate, to the extent appropriate, the subject-matter of the reports. The competent authorities shall communicate to the reporting person the final outcome of the investigations.

3.  Member States shall ensure that competent authorities follow up on the reports by taking the necessary measures and investigate, to the extent appropriate, the subject-matter of the reports and are entitled to take adequate remedial action if necessary. The competent authorities shall communicate to the reporting person the final outcome of the investigations.

4.  Member States shall ensure that any authority which has received a report but does not have the competence to address the breach reported transmits it to the competent authority and that the reporting person is informed.

4.  Member States shall ensure that any authority which has received a report but does not have the competence to address the breach reported transmits it to the competent authority within a reasonable time, in a secure manner and with due regard to relevant data protection and confidentiality law and rules. The reporting person shall be informed, without delay, of such a transmission.

Amendment    93

Proposal for a directive

Article 7

Text proposed by the Commission

Amendment

Article 7

Article 7

Design of external reporting channels

Design of external reporting channels

1.  Dedicated external reporting channels shall be considered independent and autonomous, if they meet all of the following criteria:

1.  Dedicated external reporting channels shall be considered independent and autonomous, if they meet all of the following criteria:

(a)  they are separated from general communication channels of the competent authority, including those through which the competent authority communicates internally and with third parties in its ordinary course of business;

(a)  they are separated from general communication channels of the competent authority, including those through which the competent authority communicates internally and with third parties in its ordinary course of business;

b)  they are designed, set up and operated in a manner that ensures the completeness, integrity and confidentiality of the information and prevents access to non-authorised staff members of the competent authority;

b)  they are designed, set up and operated in a manner that ensures the completeness, integrity and confidentiality of the information, including the identity of the reporting person and of the concerned person, and prevents access to non-authorised staff members of the competent authority;

c)  they enable the storage of durable information in accordance with Article 11 to allow for further investigations.

c)  they enable the storage of durable information in accordance with Article 11 to allow for further investigations.

2.  The dedicated reporting channels shall allow for reporting in at least all of the following ways:

2.  The dedicated reporting channels shall allow for reporting in at least all of the following ways:

(a)  written report in electronic or paper format;

(a)  written report in electronic or paper format;

(b)  oral report through telephone lines, whether recorded or unrecorded;

(b)  oral report through telephone lines, whether recorded or unrecorded;

(c)  physical meeting with dedicated staff members of the competent authority.

c)  physical meeting with dedicated staff members of the competent authority accompanied, if the reporting person requests it, by a workers’ representative.

3.  Competent authorities shall ensure that a report received by means other than dedicated reporting channels referred to in paragraphs 1 and 2 is promptly forwarded without modification to the dedicated staff members of the competent authority by using dedicated communication channels.

3.  Competent authorities shall ensure that a report received by means other than dedicated reporting channels referred to in paragraphs 1 and 2 is promptly forwarded without modification to the dedicated staff members of the competent authority by using dedicated communication channels.

4.  Member States shall establish procedures to ensure that, where a report being initially addressed to a person who has not been designated as responsible handler for reports that person is refrained from disclosing any information that might identify the reporting or the concerned person.

4.  Member States shall establish procedures to ensure that, where a report being initially addressed to a person who has not been designated as responsible handler for reports that person is refrained from disclosing any information that might identify the reporting or the concerned person.

Amendment    94

Proposal for a directive

Article 8

Text proposed by the Commission

Amendment

Article 8

Article 8

Dedicated staff members

Dedicated staff members

1.  Member States shall ensure that competent authorities have staff members dedicated to handling reports. Dedicated staff members shall receive specific training for the purposes of handling reports.

1.  Member States shall ensure that competent authorities have an adequate number of competent staff members dedicated to handling reports. Dedicated staff members shall receive specific training for the purposes of handling reports, and shall comply with the confidentiality requirements provided for under this Directive.

2.  Dedicated staff members shall exercise the following functions:

2.  Dedicated staff members shall exercise the following functions:

(a)  providing any interested person with information on the procedures for reporting;

(a)  providing any interested person with information on the procedures for reporting;

(b)  receiving and following-up reports;

(b)  receiving and following-up reports. They shall determine whether the report falls under the scope of this Directive.

(c)  maintaining contact with the reporting person for the purpose of informing the reporting person of the progress and the outcome of the investigation.

(c)  maintaining contact with the reporting person for the purpose of informing the reporting person of the progress and the outcome of the investigation.

Amendment    95

Proposal for a directive

Article 9

Text proposed by the Commission

Amendment

Article 9

Article 9

Procedures applicable to external reporting

Procedures applicable to external reporting

1.  The procedures applicable to external reporting shall provide for the following:

1.  The procedures applicable to external reporting shall provide for the following:

(a)  the manner in which the competent authority may require the reporting person to clarify the information reported or to provide additional information that is available to the reporting person;

(a)  the manner in which the competent authority may require the reporting person to clarify the information reported or to provide additional information that is available to the reporting person;

 

(aa)  a confidential acknowledgment of receipt of the report to the reporting person within no more than seven days of that receipt;

(b)  a reasonable timeframe, not exceeding three months or six months in duly justified cases, for giving feed-back to the reporting person about the follow-up of the report and the type and content of this feed-back;

(b)  a reasonable timeframe, not exceeding two months from the acknowledgment of receipt of the report, for diligently following-up on the report, including where necessary taking appropriate action as well as conducting investigations into the subject of the report, and for giving feed-back to the reporting person about the follow-up of the report and the type and content of this feed-back. That timeframe may be extended to four months in duly justified cases;

 

(ba)  follow-up as regards anonymous reporting in accordance with any provisions provided for in that regard under national law.

(c)  the confidentiality regime applicable to reports, including a detailed description of the circumstances under which the confidential data of a reporting person may be disclosed.

(c)  the confidentiality regime applicable to reports, including a detailed description of the circumstances under which the confidential data of a reporting person and of a concerned person may be disclosed.

 

(ca)  the possibility for the reporting person to be consulted and to present comments during the course of the investigation and the possibility for those comments to be taken into account where deemed relevant by the competent authority.

2.  The detailed description referred to in point (c) of paragraph 1 shall include the exceptional cases in which confidentiality of personal data may not be ensured, including where the disclosure of data is a necessary and proportionate obligation required under Union or national law in the context of investigations or subsequent judicial proceedings or to safeguard the freedoms of others including the right of defence of the concerned person, and in each case subject to appropriate safeguards under such laws.

2.  The detailed description referred to in point (c) of paragraph 1 shall include the exceptional cases in which confidentiality of personal data may not be ensured, including where the disclosure of data is a necessary and proportionate obligation required under Union or national law in the context of investigations or subsequent judicial proceedings or to safeguard the freedoms of others including the right of defence of the concerned person, and in each case subject to appropriate safeguards under such laws.

3.  The detailed description referred to in point (c) of paragraph 1 must be written in clear and easy to understand language and be easily accessible to the reporting persons.

3.  The detailed description referred to in point (c) of paragraph 1 must be written in clear and easy to understand language and be easily accessible to the reporting persons.

Amendment    96

Proposal for a directive

Article 10

Text proposed by the Commission

Amendment

Article 10

Article 10

Information regarding the receipt of reports and their follow-up

Information regarding the receipt of reports and their follow-up

Member States shall ensure that competent authorities publish on their websites in a separate, easily identifiable and accessible section at least the following information:

Member States shall ensure that competent authorities publish on their websites in a separate, easily identifiable and accessible section at least the following information:

(a)  the conditions under which reporting persons qualify for protection under this Directive;

(a)  the conditions under which reporting persons qualify for protection under this Directive;

(b)  the communication channels for receiving and following-up the reporting:

(b)  the communication channels for receiving and following-up the reporting:

(i)  the phone numbers, indicating whether conversations are recorded or unrecorded when using those phone lines;

(i)  the phone numbers, indicating whether conversations are recorded or unrecorded when using those phone lines;

(ii)  dedicated electronic and postal addresses, which are secure and ensure confidentiality, to contact the dedicated staff members;

(ii)  dedicated electronic and postal addresses, which are secure and ensure confidentiality, to contact the dedicated staff members;

(c)  the procedures applicable to the reporting of breaches referred to in Article 9;

(c)  the procedures applicable to the reporting of breaches referred to in Article 9;

(d)  the confidentiality regime applicable to reports, and in particular the information in relation to the processing of personal data in accordance with Article 13 of Regulation (EU) 2016/679, Article 13 of Directive (EU) 2016/680 and Article 11 of Regulation (EC) 45/2001, as applicable.

(d)  the confidentiality regime applicable to reports, and in particular the information in relation to the processing of personal data in accordance with Articles 5 and 13 of Regulation (EU) 2016/679, Article 13 of Directive (EU) 2016/680 and Article 11 of Regulation (EC) 45/2001, as applicable.

(e)  the nature of the follow-up to be given to reports;

(e)  the nature of the follow-up to be given to reports;

(f)  the remedies and procedures available against retaliation and possibilities to receive confidential advice for persons contemplating making a report;

(f)  the remedies and procedures available against retaliation and possibilities to receive confidential advice for persons contemplating making a report;

(g)  a statement clearly explaining that persons making information available to the competent authority in accordance with this Directive are not considered to be infringing any restriction on disclosure of information imposed by contract or by any legislative, regulatory or administrative provision, and are not to be involved in liability of any kind related to such disclosure.

(g)  a statement clearly explaining that persons making information available to the competent authorities in accordance with this Directive are not considered to be infringing any restriction on disclosure of information imposed by contract or by any legislative, regulatory or administrative provision, and are not to be involved in liability of any kind related to such disclosure.

 

(ga)   an annual report on the alerts received and their treatment, while respecting the confidentiality of on-going investigations;

 

(gb)  contact information of the single independent administrative authority as provided for in Article 14a.

Amendment    97

Proposal for a directive

Article 11

Text proposed by the Commission

Amendment

Article 11

Article 11

Record-keeping of reports received

Record-keeping of reports received

1.  Member States shall ensure that competent authorities keep records of every report received.

1.  Member States shall ensure that competent authorities keep records of every report received, in compliance with the confidentiality requirements provided for in this Directive. The reports shall be stored for no longer than is necessary and proportionate in view of the reporting procedure and shall be deleted as soon as the reporting procedure has been completed. The personal data contained in those reports shall be processed in accordance with Union data protection law.

2.  Competent authorities shall promptly acknowledge the receipt of written reports to the postal or electronic address indicated by the reporting person, unless the reporting person explicitly requested otherwise or the competent authority reasonably believes that acknowledging receipt of a written report would jeopardise the protection of the reporting person’s identity.

2.  Competent authorities and the private and public legal entities shall promptly acknowledge the receipt of written reports to the postal or electronic address indicated by the reporting person, unless the reporting person explicitly requested otherwise or the competent authority reasonably believed that acknowledging receipt of a written report would jeopardise the protection of the reporting person’s identity.

3.  Where a recorded telephone line is used for reporting, subject to the consent of the reporting person, the competent authority shall have the right to document the oral reporting in one of the following ways:

3.  Where a recorded telephone line is used for reporting, subject to the consent of the reporting person, and provided that the confidentiality requirements under this Directive are complied with, the competent authorities and the private and public legal entities shall document the oral reporting in one of the following ways:

(a)  a recording of the conversation in a durable and retrievable form;

(a)  a recording of the conversation in a durable and retrievable form;

(b)  a complete and accurate transcript of the conversation prepared by the dedicated staff members of the competent authority.

(b)  a complete and accurate transcript of the conversation prepared by the dedicated staff members of the competent authority.

The competent authority shall offer the possibility to the reporting person to check, rectify and agree the transcript of the call by signing it.

The competent authorities and the public and private legal entities shall offer the possibility to the reporting person to check, rectify and agree the transcript of the call by signing it.

4.  Where an unrecorded telephone line is used for reporting, the competent authority shall have the right to document the oral reporting in the form of accurate minutes of the conversation prepared by the dedicated staff members. The competent authority shall offer the possibility to the reporting person to check, rectify and agree with the minutes of the call by signing them.

4.  Where an unrecorded telephone line is used for reporting, the competent authorities and the private and public legal entities shall document the oral reporting in the form of accurate minutes of the conversation prepared by the dedicated staff members. The competent authorities and the public and private legal entities shall offer the possibility to the reporting person to check, rectify and agree with the transcript of the call by signing them.

5.  Where a person requests a meeting with the dedicated staff members of the competent authority for reporting according to Article 7(2)(c), competent authorities shall ensure, subject to the consent of the reporting person, that complete and accurate records of the meeting are kept in a durable and retrievable form. A competent authority shall have the right to document the records of the meeting in one of the following ways:

5.  Where a person requests a meeting with the dedicated staff members of the competent authorities or the private and public legal entities for reporting according to Article 7(2)(c), competent authorities and the private and public legal entities shall ensure, subject to the consent of the reporting person, that complete and accurate records of the meeting are kept in a durable and retrievable form. Competent authorities and private and public legal entities shall document the records of the meeting in one of the following ways:

(a)  a recording of the conversation in a durable and retrievable form;

(a)  a recording of the conversation in a durable and retrievable form;

(b)  accurate minutes of the meeting prepared by the dedicated staff members of the competent authority.

(b)  accurate minutes of the meeting prepared by the dedicated staff members of the competent authority and the private and public legal entities.

The competent authority shall offer the possibility to the reporting person to check, rectify and agree with the minutes of the meeting by signing them.

The competent authorities and the public and private legal entities shall offer the possibility to the reporting person to check, rectify and agree with the transcript of the meeting by signing it.

 

5a.  Where the question of a disclosure referred to in point (c) of Article 9(1) arises, the competent authorities shall inform the reporting person thereof and shall send him or her a written justification explaining the reasons for the disclosure of the confidential data concerned. The reporting person shall be offered the possibility to check and rectify the justification and agree that the reasons for disclosure are a hand.

 

Amendment    98

Proposal for a directive

Article 13

Text proposed by the Commission

Amendment

Article 13

Article 13

Conditions for the protection of reporting persons

Conditions for the protection of reporting persons

1.  A reporting person shall qualify for protection under this Directive provided he or she has reasonable grounds to believe that the information reported was true at the time of reporting and that this information falls within the scope of this Directive.

1.  A person reporting internally or externally or both shall qualify for protection under this Directive provided he or she has reasonable grounds to believe that the information reported was true at the time of reporting and that this information falls within the scope of this Directive.

2.  A person reporting externally shall qualify for protection under this Directive where one of the following conditions is fulfilled :

 

(a)  he or she first reported internally but no appropriate action was taken in response to the report within the reasonable timeframe referred in Article 5;

 

(b)  internal reporting channels were not available for the reporting person or the reporting person could not reasonably be expected to be aware of the availability of such channels;

 

(c)  the use of internal reporting channels was not mandatory for the reporting person, in accordance with Article 4(2);

 

(d)  he or she could not reasonably be expected to use internal reporting channels in light of the subject-matter of the report;

 

(e)  he or she had reasonable grounds to believe that the use of internal reporting channels could jeopardise the effectiveness of investigative actions by competent authorities;

 

(f)   he or she was entitled to report directly through the external reporting channels to a competent authority by virtue of Union law.

 

3.  A person reporting to relevant bodies, offices or agencies of the Union on breaches falling within the scope of this Directive shall qualify for protection as laid down in this Directive under the same conditions as a person who reported externally in accordance with the conditions set out in paragraph 2.

3.  A person reporting to relevant bodies, offices or agencies of the Union on breaches falling within the scope of this Directive shall qualify for protection as laid down in this Directive under the same conditions as a person who reported in accordance with the conditions set out in paragraph 1.

4.  A person publicly disclosing information on breaches falling within the scope of this Directive shall qualify for protection under this Directive where:

4.  A person publicly disclosing information on breaches falling within the scope of this Directive shall qualify for protection under this Directive where:

(a)  he or she first reported internally and/or externally in accordance with Chapters II and III and paragraph 2 of this Article, but no appropriate action was taken in response to the report within the timeframe referred to in Articles 6(2)(b) and 9(1)(b); or

(a)  he or she first reported internally and/or externally in accordance with Chapters II and III and paragraph 1 of this Article, but no appropriate action was taken in response to the report within the timeframe referred to in Articles 5(1)(d), and 9(1)(b); or

(b)   he or she could not reasonably be expected to use internal and/or external reporting channels due to imminent or manifest danger for the public interest, or to the particular circumstances of the case, or where there is a risk of irreversible damage.

(b)   he or she has reasonable grounds to believe that he or she could not be expected to use internal and/or external reporting channels due, for instance, to imminent or manifest danger for or harm to the public interest, or to the particular circumstances of the case, such as cases where reporting persons have reasonable grounds to believe that there is collusion between the perpetrator of the breach and the competent authority, or that there is direct or indirect participation in the alleged misconduct on the part of the relevant external authorities, or that evidence may be concealed or destroyed, or where there is a situation of urgency or a risk of irreversible damage.

 

4a.  If the identity of the author of an anonymous report is revealed at a later stage, he or she shall enjoy the protection provided for by this Directive on the same conditions as reporting persons whose identity was public knowledge when the report or public disclosure was first made.

Amendment    99

Proposal for a directive

Article 14

Text proposed by the Commission

Amendment

Article 14

Article 14

Prohibition of retaliation against reporting persons

Prohibition of retaliation against reporting persons

Member States shall take the necessary measures to prohibit any form of retaliation, whether direct or indirect, against reporting persons meeting the conditions set out in Article 13, including in particular in the form of:

Member States shall take the necessary measures to prohibit any form of retaliation, whether direct or indirect, taken against reporting persons meeting the conditions set out in Article 13, against persons who intend to report or against facilitators, including, in particular, in the form of:

(a)  suspension, lay-off, dismissal or equivalent measures;

(a)  suspension, lay-off, dismissal or equivalent measures;

(b)  demotion or withholding of promotion;

(b)  demotion or withholding of promotion;

(c)  transfer of duties, change of location of place of work, reduction in wages, change in working hours;

(c)  transfer of duties, change of location of place of work, reduction in wages, change in working hours;

(d)  withholding of training;

(d)  withholding of training;

(e)  negative performance assessment or employment reference;

(e)  negative performance assessment or employment reference;

(f)  imposition or administering of any discipline, reprimand or other penalty, including a financial penalty;

(f)  imposition or administering of any discipline, reprimand or other penalty, including a financial penalty;

(g)  coercion, intimidation, harassment or ostracism at the workplace;

(g)  coercion, intimidation, harassment or ostracism;

(h)  discrimination, disadvantage or unfair treatment;

(h)  discrimination, disadvantage or unfair treatment;

(i)  failure to convert a temporary employment contract into a permanent one;

(i)  failure to convert a temporary employment contract into a permanent one;

(j)  failure to renew or early termination of the temporary employment contract;

(j)  failure to renew or early termination of the temporary employment contract;

(k)  damage, including to the person’s reputation, or financial loss, including loss of business and loss of income;

(k)  damage, including to the person’s reputation, particularly in social media, or financial loss, including loss of business and loss of income;

(l)  blacklisting on the basis of a sector or industry-wide informal or formal agreement, which entails that the person will not, in the future, find employment in the sector or industry;

(l)  blacklisting on the basis of a sector or industry-wide informal or formal agreement, which entails that the person will not, in the future, find employment in the sector or industry;

(m)  early termination or cancellation of contract for goods or services;

(m)  early termination or cancellation of a contract for goods or services due to the reporting under this Directive;

(n)  cancellation of a licence or permit.

(n)  cancellation of a licence or permit;

 

(na)  mandatory psychiatric or medical referrals;

 

(nb)  suspension or revocation of security clearance.

Amendment    100

Proposal for a directive

Article 14 a (new)

Text proposed by the Commission

Amendment

 

Article 14a

 

Support for the reporting person from an independent third party

 

1.  Member States shall provide for the reporting person or the person intending to report or to make a public disclosure to be given support in the procedure. Such support shall ensure that the identity of the persons referred to in this paragraph remains confidential and may, in particular, take the form of:

 

(a)  free, impartial and confidential advice, especially on the scope of this Directive, the reporting channels and the protection granted to the reporting person and the rights of the concerned person;

 

(b)  legal advice in the event of a legal dispute, in accordance with Article 15(8);

 

(c)  psychological support, in accordance with Article 15(8).

 

2.  This support may be provided by an information centre, or a single and clearly identified independent administrative authority.

Amendment    101

Proposal for a directive

Article 14 b (new)

Text proposed by the Commission

Amendment

 

Article 14 b

 

Duty of maintaining the confidentiality of the identity of reporting persons

 

1. The identity of a reporting person may not be disclosed without the reporting person’s explicit consent. This confidentiality requirement shall also apply to information that may be used to discover the identity of the reporting person.

 

2. Any person who comes into the possession of data referred to in paragraph 1 of this Article shall be required to protect such data.

 

3. Under no circumstances shall the person concerned be entitled to obtain information about the identity of the reporting person.

 

4. Circumstances under which the confidential data of a reporting person may be disclosed shall be limited to cases where the disclosure of data is a necessary and proportionate obligation required under Union or national law in the context of investigations or subsequent judicial proceedings or to safeguard the freedoms of others including the rights of defence of the concerned person, and in each case subject to appropriate safeguards under such laws.

 

5. In the cases referred to in paragraph 3, the person designated to receive and follow-upon reports shall be required to notify the reporting person before disclosing his or her confidential data.

 

6. The internal and external reporting channels shall be designed, set up and operated in a manner that ensures the confidentiality of the identity of the reporting person, and prevents access to non-authorised staff members. 

Amendment    102

Proposal for a directive

Article 15

Text proposed by the Commission

Amendment

Article 15

Article 15

Measures for the protection of reporting persons against retaliation

Measures for the protection of reporting persons and facilitators against retaliation

1.  Member States shall take the necessary measures to ensure the protection of reporting persons meeting the conditions set out in Article 13 against retaliation. Such measures shall include, in particular, those set out in paragraphs 2 to 8.

1.  Member States shall take the necessary measures to ensure the protection of reporting persons meeting the conditions set out in Article 13 against retaliation. Such measures shall include, in particular, those set out in paragraphs 2 to 8.

2.   Comprehensive and independent information and advice shall be easily accessible to the public, free of charge, on procedures and remedies available on protection against retaliation.

2.   Comprehensive and independent information and advice shall be easily accessible to the public, free of charge, on procedures and remedies available on protection against retaliation.

3.  Reporting persons shall have access to effective assistance from competent authorities before any relevant authority involved in their protection against retaliation, including, where provided for under national law, certification of the fact that they qualify for protection under this Directive.

3.  Reporting persons and facilitators shall have access to effective assistance from competent authorities before any relevant authority involved in their protection against retaliation, including, where provided for under national law, certification of the fact that they qualify for protection under this Directive.

4.  Persons reporting externally to competent authorities or making a public disclosure in accordance with this Directive shall not be considered to have breached any restriction on disclosure of information imposed by contract or by any legislative, regulatory or administrative provision, and incur liability of any kind in respect of such disclosure.

4.  Persons reporting externally to competent authorities or making a public disclosure in accordance with this Directive shall not be considered to have breached any restriction on disclosure of information imposed by contract or by any legislative, regulatory or administrative provision, and incur liability of any kind in respect of such disclosure.

5.  In judicial proceedings relating to a detriment suffered by the reporting person, and subject to him or her providing reasonable grounds to believe that the detriment was in retaliation for having made the report or disclosure, it shall be for the person who has taken the retaliatory measure to prove that the detriment was not a consequence of the report but was exclusively based on duly justified grounds.

5.  In judicial proceedings relating to a detriment suffered by the reporting person, and subject to him or her providing reasonable grounds to believe that the detriment was in retaliation for having made the report or disclosure, it shall be for the person who has taken the retaliatory measure to prove that the detriment was not a consequence of the report or public disclosure, but was exclusively based on duly justified grounds.

6.  Reporting persons shall have access to remedial measures against retaliation as appropriate, including interim relief pending the resolution of legal proceedings, in accordance with the national framework.

6.  Reporting persons and facilitators shall have access to remedial measures against retaliation as appropriate, including interim relief pending the resolution of legal proceedings, in accordance with the national framework.

7.   In addition to the exemption from measures, procedures and remedies provided for in Directive (EU) 2016/943, in judicial proceedings, including for defamation, breach of copyright, breach of secrecy or for compensation requests based on private, public, or on collective labour law, reporting persons shall have the right to rely on having made a report or disclosure in accordance with this Directive to seek dismissal.

7.   In addition to the exemption from measures, procedures and remedies provided for in Directive (EU) 2016/943, in judicial proceedings, including for defamation, breach of copyright, breach of secrecy or for compensation requests based on private, public, or on collective labour law, reporting persons shall have the right to rely on having made a report or disclosure in accordance with this Directive to seek dismissal. Member States shall also take the necessary measures to extend such right to seek dismissal to individual members of civil society organisations when they are related to an act of reporting.

8.  In addition to providing legal aid to reporting persons in criminal and in cross-border civil proceedings in accordance with Directive (EU) 2016/1919 and Directive 2008/52/EC of the European Parliament and of the Council63, and in accordance with national law, Member States may provide for further measures of legal and financial assistance and support for reporting persons in the framework of legal proceedings.

8.  In addition to providing legal aid to reporting persons in criminal and in cross-border civil proceedings in accordance with Directive (EU) 2016/1919 and Directive 2008/52/EC of the European Parliament and of the Council63, and in accordance with national law, Member States may provide for further measures of legal and financial assistance and support, including psychological support, for reporting persons in the framework of legal proceedings.

________________

________________

63 Directive 2008/52/EC of the European Parliament and of the Council of 21 May 2008 on certain aspects of mediation in civil and commercial matters (OJ L 136, 24.5.2008, p. 3).

63 Directive 2008/52/EC of the European Parliament and of the Council of 21 May 2008 on certain aspects of mediation in civil and commercial matters (OJ L 136, 24.5.2008, p. 3).

Amendment    103

Proposal for a directive

Article 15 a (new)

Text proposed by the Commission

Amendment

 

Article 15 a

 

Remedial measures

 

Member States shall take the necessary measures to ensure remedies and full compensation for damages suffered by reporting persons meeting the conditions set out in Article 13. Such remedial measures may take the following forms:

 

a) reintegration

 

b) restoration of a cancelled permit, licence or contract;

 

c) compensation for actual or future financial losses;

 

d) compensation for other economic damages or non-material damages.

Amendment    104

Proposal for a directive

Article 16 – paragraph 2

Text proposed by the Commission

Amendment

2.  Where the identity of the concerned persons is not known to the public, competent authorities shall ensure that their identity is protected for as long as the investigation is ongoing.

2.  Competent authorities shall ensure that the identity of the concerned persons is protected for as long as the investigation is ongoing, but in no case after the start of the criminal trial.

Amendment    105

Proposal for a directive

Article 16 a (new)

Text proposed by the Commission

Amendment

 

Article 16 a

 

Rights of Persons involved

 

Member States shall ensure that any findings or reports resulting from an assessment or an investigation of, or prompted by, reports or public disclosures under this Directive do not unfairly prejudice any individual, whether directly or indirectly. The right to a fair hearing or trial shall also be fully respected.

Amendment    106

Proposal for a directive

Article 17

Text proposed by the Commission

Amendment

Article 17

Article 17

Penalties

Penalties

1.  Member States shall provide for effective, proportionate and dissuasive penalties applicable to natural or legal persons that:

1.  Member States shall provide for effective, proportionate and dissuasive penalties applicable to natural or legal persons that:

(a)  hinder or attempt to hinder reporting;

(a)  hinder or attempt to hinder reporting;

(b)  take retaliatory measures against reporting persons;

b)  take retaliatory measures against reporting persons and facilitators;

(c)  bring vexatious proceedings against reporting persons;

(c)  bring vexatious proceedings against reporting persons;

(d)  breach the duty of maintaining the confidentiality of the identity of reporting persons.

d)  breach the duty of maintaining the confidentiality of the identity of reporting persons and of concerned persons.

2.  Member States shall provide for effective, proportionate and dissuasive penalties applicable to persons making malicious or abusive reports or disclosures, including measures for compensating persons who have suffered damage from malicious or abusive reports or disclosures.

2.  Member States shall ensure that effective, proportionate and dissuasive penalties are applicable to reporting persons making reports or disclosures demonstrated to be knowingly false, and that measures are in place for compensating persons who have suffered damage from such false reports or disclosures

Amendment    107

Proposal for a directive

Article 17 a (new)

Text proposed by the Commission

Amendment

 

Article 17 a

 

No Waiver of Rights and Remedies

 

The rights and remedies provided for under this Directive may not be waived or limited by any agreement, policy, form or condition of employment, including a pre-dispute arbitration agreement. Any attempt to waive or limit these rights and remedies shall be considered void and unenforceable and may be subject to penalty or sanction.

Amendment    108

Proposal for a directive

Article 17 b (new)

Text proposed by the Commission

Amendment

 

Article 17b

 

Obligation to cooperate

 

1. Member State authorities that are made aware of breaches of Union law, as covered by this Directive, shall expeditiously inform all other relevant Member State authorities and/or Union bodies, offices and agencies, and shall cooperate with these in a loyal, effective and expeditious manner.

 

2. Member States authorities that are notified by other Member States' authorities of potential breaches of Union law covered by this directive shall provide a substantive response to actions taken in connection with said notification as well as an official acknowledgment of receipt and a point of contact for further cooperation.

 

3. Member States' authorities shall safeguard confidential information received, in particular the information related to the identity and other personal information of reporting persons.

 

4. Member States' authorities shall provide confidential access to the information received from reporting persons and facilitate requests for further information in a timely manner.

 

5. Member States' authorities shall share all relevant information with other competent Member States authorities pertaining to breaches of Union or national law in international cases and shall do so in a timely manner.

Amendment    109

Proposal for a directive

Article 18 – paragraph 1

Text proposed by the Commission

Amendment

Any processing of personal data carried out pursuant to this Directive, including the exchange or transmission of personal data by the competent authorities, shall be made in accordance with Regulation (EU) 2016/679 and Directive (EU) 2016/680. Any exchange or transmission of information by competent authorities at Union level should be undertaken in accordance with Regulation (EC) No 45/2001. Personal data which are not relevant for the handling of a specific case shall be immediately deleted.

Any processing of personal data carried out pursuant to this Directive, including the exchange or transmission of personal data by the competent authorities, shall be made in accordance with Regulation (EU) 2016/679 and Directive (EU) 2016/680. Any exchange or transmission of information by competent authorities at Union level should be undertaken in accordance with Regulation (EC) No 45/2001. Personal data which are not relevant for the handling of a specific case shall not be collected or, if accidentally collected, shall be immediately deleted.

Amendment    110

Proposal for a directive

Article 19

Text proposed by the Commission

Amendment

Article 19

Article 19

More favourable treatment

More favourable treatment and non-regression clause

Member States may introduce or retain provisions more favourable to the rights of the reporting persons than those set out in this Directive, without prejudice to Article 16 and Article 17(2).

1.  Member States may introduce or retain provisions more favourable to the rights of the reporting persons than those set out in this Directive, without prejudice to Article 16 and Article 17(2).

 

1a.  Transposition of this Directive shall not provide grounds for reducing the general level of protection already afforded to reporting persons under national law in the areas to which it applies.

Amendment    111

Proposal for a directive

Article 19 a (new)

Text proposed by the Commission

Amendment

 

Article 19 a

 

Respect for social partners' autonomy

 

This Directive shall be without prejudice to the autonomy of the social partners and their right to enter into collective agreements in accordance with national law, traditions and practices while respecting the provisions of the Treaty.

Justification

Important to respect national labour marked models as regards to the autonomy of the social partners is respected.

Amendment    112

Proposal for a directive

Article 20 – paragraph 2 a (new)

Text proposed by the Commission

Amendment

 

2a.  When transposing this Directive Member States may consider establishing an independent whistleblower protection authority.

Amendment    113

Proposal for a directive

Article 21 – paragraph 1

Text proposed by the Commission

Amendment

1.  Member States shall provide the Commission with all relevant information regarding the implementation and application of this Directive. On the basis of the information provided, the Commission shall, by 15 May 2023, submit a report to the European Parliament and the Council on the implementation and application of this Directive.

1.  Member States shall provide the Commission with all relevant information regarding the implementation and application of this Directive. On the basis of the information provided, the Commission shall, by 15 May 2023, submit a report to the European Parliament and the Council on the implementation and application of this Directive. The report shall also include an initial assessment of whether it would be advisable to extend the scope of this Directive to cover further areas or Union acts.

Amendment    114

Proposal for a directive

Article 21 – paragraph 2 – point c a (new)

Text proposed by the Commission

Amendment

 

(ca)  the number of retaliatory measures against reporting persons ascertained.

Amendment    115

Proposal for a directive

Article 21 – paragraph 3

Text proposed by the Commission

Amendment

3.  The Commission shall, by 15 May 2027, taking into account its report submitted pursuant to paragraph 1 and the Member States’ statistics submitted pursuant to paragraph 2, submit a report to the European Parliament and to the Council assessing the impact of national law transposing this Directive. The report shall evaluate the way in which this Directive has operated and consider the need for additional measures, including, where appropriate, amendments with a view to extending the scope of this Directive to further areas or Union acts.

3.  The Commission shall, by 15 May 2025, taking into account its report submitted pursuant to paragraph 1 and the Member States’ statistics submitted pursuant to paragraph 2, submit a report to the European Parliament and to the Council assessing the impact of national law transposing this Directive. The report shall evaluate the way in which this Directive has operated, the possible impact on fundamental rights such as privacy, the right to the presumption of innocence and the right to a fair trial, and consider the need for additional measures, including, where appropriate, amendments with a view to extending the scope of this Directive to further areas or Union acts.

Amendment    116

Proposal for a directive

Article 21 – paragraph 3 a (new)

Text proposed by the Commission

Amendment

 

3a.  Such reports shall be made public and easily accessible.

Amendment    117

Proposal for a directive

Article 21 a (new)

Text proposed by the Commission

Amendment

 

Article 21 a

 

Updating the Annex

 

The Commission is empowered to adopt delegated acts in accordance with Article 21b in order to update the Annex to this Directive whenever a new Union legal act falls under the material scope laid down in point (a) of Article 1 (1) or Article 1 (2).

Amendment    118

Proposal for a directive

Article 21 b (new)

Text proposed by the Commission

Amendment

 

Article 21b

 

Exercise of the delegation

 

1.  The power to adopt delegated acts is conferred on the Commission subject to the conditions laid down in this Article.

 

2.  The power to adopt delegated acts referred to in Article 21a shall be conferred on the Commission for a period of five years from ... [OJ: please insert the date of entry into force of this Directive]. The Commission shall draw up a report in respect of the delegation of power not later than nine months before the end of the five-year period. The delegation of power shall be tacitly extended for periods of an identical duration, unless the European Parliament or the Council opposes such extension not later than three months before the end of each period.

 

3.  The delegation of power referred to in Article 21a may be revoked at any time by the European Parliament or by the Council. A decision to revoke shall put an end to the delegation of the power specified in that decision. It shall take effect the day following the publication of the decision in the Official Journal of the European Union or at a later date specified therein. It shall not affect the validity of any delegated acts already in force.

 

4.  Before adopting a delegated act, the Commission shall consult experts designated by each Member State in accordance with the principles laid down in the Interinstitutional Agreement of 13 April 2016 on Better Law-Making.

 

5.  As soon as it adopts a delegated act, the Commission shall notify it simultaneously to the European Parliament and to the Council.

 

6.  A delegated act adopted pursuant to Article 21a shall enter into force only if no objection has been expressed either by the European Parliament or the Council within a period of three months of notification of that act to the European Parliament and the Council or if, before the expiry of that period, the European Parliament and the Council have both informed the Commission that they will not object. That period shall be extended by three months at the initiative of the European Parliament or of the Council.

Amendment    119

Proposal for a directive

Annex I – part I – part B – title

Text proposed by the Commission

Amendment

B  Article 1(a)(ii) – financial services, prevention of money laundering and terrorist financing;

B  Article 1(a)(ii) – financial services, tax evasion, tax fraud, tax avoidance, prevention of money laundering and terrorist financing;1a:

 

_________________

 

1a ECON and LIBE exclusive competence

Amendment    120

Proposal for a directive

Annex I – part I – point B a (new)

Text proposed by the Commission

Amendment

 

Ba.   Article 1(a)(ii)(b) – social standards, health and safety at work

 

1.   Social standards of the European Union, as regulated in particular by:

 

(i)   Council Directive 79/7/EEC of 19 December 1978 on the progressive implementation of the principle of equal treatment for men and women in matters of social security (OJ L 6, 10.1.1979, p. 24);

 

(ii)   Council Directive 91/533/EEC of 14 October 1991 on an employer's obligation to inform employees of the conditions applicable to the contract or employment relationship (OJ L 288, 18.10.1991, p. 32);

 

(iii)   Council Directive 91/383/EEC of 25 June 1991 supplementing the measures to encourage improvements in the safety and health at work of workers with a fixed-duration employment relationship or a temporary employment relationship (OJ L 206, 29.7.1991, p. 19);

 

(iv)   Council Directive 94/33/EC of 22 June 1994 on the protection of young people at work (OJ L 216, 20.8.1994, p. 12);

 

(v)   Council Directive 98/59/EC on the approximation of the laws of the Member States relating to collective redundancies (OJ L 225, 12.8.1998, p. 16);

 

(vi)   Council Directive 98/49/EC of 29 June 1998 on safeguarding the supplementary pension rights of employed and self-employed persons moving within the Community (OJ L 209, 25.7.1998, p. 46);

 

(vii)   Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation (OJ L 303, 2.12.2000, p. 16);

 

(viii)   Council Directive 2000/43/EC of 29 June 2000 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin (OJ L 180, 19.7.2000, p. 22);

 

(ix)   Council Directive 2000/79/EC of 27 November 2000 concerning the European Agreement on the Organisation of Working Time of Mobile Workers in Civil Aviation concluded by the Association of European Airlines (AEA), the European Transport Workers' Federation (ETF), the European Cockpit Association (ECA), the European Regions Airline Association (ERA) and the International Air Carrier Association (IACA) (OJ L 302, 1.12.2000, p. 57);

 

(x)   Council Directive 2001/23/EC of 12 March 2001 on the approximation of the laws of the Member States relating to the safeguarding of employees' rights in the event of transfers of undertakings, businesses or parts of undertakings or businesses (OJ L 82, 22.3.2001, p. 16);

 

(xi)   Directive 2002/15/EC of the European Parliament and of the Council of 11 March 2002 on the organisation of the working time of persons performing mobile road transport activities (OJ L 80, 23.3.2002, p. 35-39) and Regulation (EC) No 561/2006 of the European Parliament and of the Council of 15 March 2006 on the harmonisation of certain social legislation relating to road transport and amending Council Regulations (EEC) No 3821/85 and (EC) No 2135/98 and repealing Council Regulation (EEC) No 3820/85 (OJ L 102, 11.4.2006, p. 1);

 

(xii)   Directive 2003/41/EC of the European Parliament and of the Council of 3 June 2003 on the activities and supervision of institutions for occupational retirement provision (OJ L 235, 23.9.2003, p. 10);

 

(xiii)   Directive 2004/113/EC of 13 December 2004 implementing the principle of equal treatment between men and women in the access to and supply of goods and services (OJ L 373, 21.12.2004, p. 37);

 

(xiv)   Directive 2003/88/EC of the European Parliament and of the Council of 4 November 2003 concerning certain aspects of the organisation of working time (OJ L 299, 18.11.2003, p. 9);

 

(xv)   Directive 2006/54/EC of the European Parliament and of the Council of 5 July 2006 on the implementation of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation (OJ L 204, 26.7.2006, p. 23);

 

(xvi)   Directive 2008/94/EC of the European Parliament and of the Council of 22 October 2008 on the protection of employees in the event of the insolvency of their employer (OJ L 283, 28.10.2008, p. 36);

 

(xvii)   Directive 2010/41/EU of the European Parliament and of the Council of 7 July 2010 on the application of the principle of equal treatment between men and women engaged in an activity in a self-employed capacity and repealing Council Directive 86/613/EEC (OJ L 180, 15.7.2010, p. 1);

 

(xviii)   Directive 2014/54/EU of the European Parliament and of the Council of 16 April 2014 on measures facilitating the exercise of rights conferred on workers in the context of freedom of movement for workers (OJ L 128, 30.4.2014, p. 8);

 

(xix)   Directive 2014/67/EU of the European Parliament and of the Council of 15 May 2014 on the enforcement of Directive 96/71/EC concerning the posting of workers in the framework of the provision of services and amending Regulation (EU) No 1024/2012 on administrative cooperation through the Internal Market Information System (‘the IMI Regulation’) (OJ L 159, 28.5.2014, p. 11);

 

(xx)   Directive 2014/50/EU of the European Parliament and of the Council of 16 April 2014 on minimum requirements for enhancing worker mobility between Member States by improving the acquisition and preservation of supplementary pension rights (OJ L 128, 30.4.2014, p. 1);

 

(xxi)   Regulation (EC) No 450/2003 of the European Parliament and of the Council of 27 February 2003 concerning the labour cost index (OJ L 69, 13.3.2003, p. 1);

 

(xxii)   Regulation (EC) No 1071/2009 of the European Parliament and of the Council of 21 October 2009 establishing common rules concerning the conditions to be complied with to pursue the occupation of road transport operator and repealing Council Directive 96/26/EC (OJ L 300, 14.11.2009, p. 51);

 

(xxiii)   Regulation (EC) No 987/2009 of the European Parliament and of the Council of 16 September 2009 laying down the procedure for implementing Regulation (EC) No 883/2004 on the coordination of social security systems (OJ L 284, 30.10.2009, p. 1);

 

(xxiv)  Regulation (EU) No 492/2011 of the European Parliament and of the Council of 5 April 2011 on freedom of movement for workers within the Union (OJ L 141, 27.5.2011, p. 1.);

 

(xxv)   Regulation (EU) No 223/2014 of the European Parliament and of the Council of 11 March 2014 on the Fund for European Aid to the Most Deprived (OJ L 72, 12.3.2014, p. 1);

 

(xxvi)   Regulation (EU) 2015/848 of the European Parliament and of the Council of 20 May 2015 on insolvency proceedings (OJ L 141, 5.6.2015, p. 19);

 

2.   Workplace health and safety standards, as regulated in particular by:

 

(i)   all individual Directives within the meaning of Article 16(1) of Directive 89/391/EEC;

 

(ii)  Council Directive 92/29/EEC of 31 March 1992 on the minimum safety and health requirements for improved medical treatment on board vessels (OJ L 113, 30.4.1992, p. 19);

 

(iii)   Directive 2001/95/EC of 3 December 2001 on general product safety (OJ L 11, 15.01.2002, p. 4);

 

(iv)   Directive 2006/42/EC of the European Parliament and of the Council of 17 May 2006 on machinery, and amending Directive 95/16/EC (OJ L 157, 9.6.2006, p. 24);

 

(v)   Commission Directive 2006/15/EC of 7 February 2006 establishing a second list of indicative occupational exposure limit values in implementation of Council Directive 98/24/EC and amending Directives 91/322/EEC and 2000/39/EC (OJ L 38, 9.2.2006, p. 36);

 

(vi)   Directive 2008/68/EC of the European Parliament and of the Council of 24 September 2008 on the inland transport of dangerous goods (OJ L 260, 30.9.2008, p. 13);

 

(vii)   Directive 2009/104/EC of the European Parliament and of the Council of 16 September 2009 concerning the minimum safety and health requirements for the use of work equipment by workers at work (second individual Directive within the meaning of Article 16(1) of Directive 89/391/EEC) (OJ L 260, 3.10.2009, p. 5);

 

(viii)   Directive 2009/148/EC of the European Parliament and of the Council of 30 November 2009 on the protection of workers from the risks related to exposure to asbestos at work (OJ L 330, 16.12.2009, p. 28);

 

(ix)   Regulation (EC) No 1338/2008 of the European Parliament and of the Council of 16 December 2008 on Community statistics on public health and health and safety at work (OJ L 354, 31.12.2008, p. 70).

Amendment    121

Proposal for a directive

Annex I – part I – point E – title

Text proposed by the Commission

Amendment

E  Article 1(a)(v) – protection of the environment:

E  Article 1(a)(v) – protection of the environment, sustainable development, waste management, marine, air and noise pollution, protection and management of water and soils, protection of nature and biodiversity and fight against climate change:

Amendment    122

Proposal for a directive

Annex I – part I – point E – paragraph 1 (new)

Text proposed by the Commission

Amendment

 

1.   Provisions on environmental responsibility, including:

(NB: this heading should be inserted before Annex I, part 1, point E, point i)

Amendment    123

Proposal for a directive

Annex I – part I – point E – point iii

Text proposed by the Commission

Amendment

(iii)  Regulation of (EU) No 995/2010 of the European Parliament and of the Council of 20 October 2010 laying down the obligations of operators who place timber and timber products on the market (OJ L 295, 12.11.2010, p. 23);

deleted

Amendment    124

Proposal for a directive

Annex I – part I – point E – point iv

Text proposed by the Commission

Amendment

(iv)  Directive 2009/123/EC of the European Parliament and of the Council of 21 October 2009 amending Directive 2005/35/EC on ship-source pollution and on the introduction of penalties for infringements (OJ L 280, 27.10.2009, p. 52);

deleted

Amendment    125

Proposal for a directive

Annex I – part I – point E – point v

Text proposed by the Commission

Amendment

(v)  Regulation (EU) 2015/757 of the European Parliament and of the Council of 29 April 2015 on the monitoring, reporting and verification of carbon dioxide emissions from maritime transport, and amending Directive 2009/16/EC (OJ L 123, 19.5.2015, p. 55);

deleted

Amendment    126

Proposal for a directive

Annex I – part I – point E – point vi

Text proposed by the Commission

Amendment

(vi)  Regulation (EU) No 1257/2013 of the European Parliament and of the Council of 20 November 2013 on ship recycling and amending Regulation (EC) No 1013/2006 and Directive 2009/16/EC (OJ L 330, 10.12.2013, p. 1);

deleted

Amendment    127

Proposal for a directive

Annex I – part I – point E – point vii

Text proposed by the Commission

Amendment

(xvii)  Regulation (EU) No 649/2012 of the European Parliament and of the Council of 4 July 2012 concerning the export and import of hazardous chemicals (OJ L 201, 27.7.2012, p. 60);

deleted

Amendment    128

Proposal for a directive

Annex I – part I – point E – point viii

Text proposed by the Commission

Amendment

(viii)  Regulation (EC) No 1907/2006 of the European Parliament and of the Council of 18 December 2006 concerning the Registration, Evaluation, Authorisation and Restriction of Chemicals (REACH), establishing a European Chemicals Agency, amending Directive 1999/45/EC and repealing Council Regulation (EEC) No 793/93 and Commission Regulation (EC) No 1488/94 as well as Council Directive 76/769/EEC and Commission Directives 91/155/EEC, 93/67/EEC, 93/105/EC and 2000/21/EC (OJ L 396, 30.12.2006, p. 1);

deleted

Amendment    129

Proposal for a directive

Annex I – part I – point E – point ix

Text proposed by the Commission

Amendment

(ix)  Directive (EU) 2015/2193 of the European Parliament and of the Council of 25 November 2015 on the limitation of emissions of certain pollutants into the air from medium combustion plants (OJ L 313, 28.11.2015, p. 1).

deleted

Amendment    130

Proposal for a directive

Annex I – part I – point E – paragraph 1 a (new)

Text proposed by the Commission

Amendment

 

1a.    Provisions on access to environmental information:

 

(i)  Directive 2003/4/EC of the European Parliament and of the Council of 28 January 2003 on public access to environmental information and repealing Council Directive 90/313/EEC (OJ L 41, 14.2.2003, p. 26);

 

(ii)  Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents (OJ L 145, 31.5.2001, p. 43);

 

(iii)  Regulation (EC) No 1367/2006 of the European Parliament and of the Council of 6 September 2006 on the application of the provisions of the Aarhus Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters to Community institutions and bodies (OJ L 264, 25.9.2006, p. 13);

 

(iv)  Directive 2007/2/EC of the European Parliament and of the Council of 14 March 2007 establishing an Infrastructure for Spatial Information in the European Community (INSPIRE) (OJ L 108, 25.4.2007, p. 1).

 

(v)  Directive 2003/35/EC of the European Parliament and of the Council of 26 May 2003 providing for public participation in respect of the drawing up of certain plans and programmes relating to the environment and amending with regard to public participation and access to justice (OJ L 156, 25.6.2003, p. 17).

 

(NB. This paragraph should be placed after point E, (ii))

Amendment    131

Proposal for a directive

Annex I – part I – point E – paragraph 1 b (new)

Text proposed by the Commission

Amendment

 

1b.   Provisions on the environment and the climate, including:

 

(i)  Regulation (EU) No 1293/2013 of the European Parliament and of the Council of 11 December 2013 on the establishment of a Programme for the Environment and Climate Action (LIFE) and repealing Regulation (EC) No 614/2007 (OJ L 347, 20.12.2013, p. 185);

 

(ii)  Directive 2009/28/EC of the European Parliament and of the Council of 23 April 2009 on the promotion of the use of energy from renewable sources and amending and subsequently repealing Directives 2001/77/EC and 2003/30/EC (OJ L 140, 5.6.2009, p. 16);

 

(iii)  Directive 2009/29/EC of the European Parliament and of the Council of 23 April 2009 amending Directive 2003/87/EC so as to improve and extend the greenhouse gas emission allowance trading scheme of the Community (OJ L 140, 5.6.2009, p. 63), and all related Regulations;

 

(iv)  Regulation (EU) No 421/2014 of the European Parliament and of the Council of 16 April 2014 amending Directive 2003/87/EC establishing a scheme for greenhouse gas emission allowance trading within the Community, in view of the implementation by 2020 of an international agreement applying a single global market-based measure to international aviation emissions (OJ L 129, 30.4.2014, p. 1);

 

(v)  Directive 2009/31/EC of the European Parliament and of the Council of 23 April 2009 on the geological storage of carbon dioxide and amending Council Directive 85/337/EEC, European Parliament and Council Directives 2000/60/EC, 2001/80/EC, 2004/35/EC, 2006/12/EC, 2008/1/EC and Regulation (EC) No 1013/2006 (OJ L 140, 5.6.2009, p. 114);

 

(vi)  Regulation (EU) No 525/2013 of the European Parliament and of the Council of 21 May 2013 on a mechanism for monitoring and reporting greenhouse gas emissions and for reporting other information at national and Union level relevant to climate change and repealing Decision No 280/2004/EC (OJ L 165, 18.6.2013, p. 13);

 

(vii)  Regulation (EU) No 517/2014 of the European Parliament and of the Council of 16 April 2014 on fluorinated greenhouse gases and repealing Regulation (EC) No 842/2006 (OJ L 150, 20.5.2014, p. 195);

 

(viii)  Council Directive 2003/96/EC of 27 October 2003 restructuring the Community framework for taxation of energy products and electricity (OJ L 283 of 31.10.2003 p. 51);

 

(ix)  Directive 2012/27/EU of the European Parliament and of the Council of 25 October 2012 on energy efficiency, amending Directives 2009/125/EC and 2010/30/EU and repealing Directives 2004/8/EC and 2006/32/EC (OJ L 315, 14.11.2012, p. 1).

Amendment    132

Proposal for a directive

Annex I – part I – point E – paragraph 1 c (new)

Text proposed by the Commission

Amendment

 

1c.   Provisions on sustainable development and waste management, including:

 

(i)  Directive 2008/98/EC of the European Parliament and of the Council of 19 November 2008 on waste and repealing certain Directives (OJ L 312, 22.11.2008, p. 3);

 

(ii)  Council Directive 1999/31/EC of 26 April 1999 on the landfill of waste (OJ L 182, 16.7.1999, p. 1);

 

(iii)  Regulation (EC) No 1013/2006 of the European Parliament and of the Council of 14 June 2006 on shipments of waste (OJ L 190, 12.7.2006, p. 1);

 

(iv)  European Parliament and Council Directive 94/62/EC of 20 December 1994 on packaging and packaging waste (OJ L 365, 31.12.1994, p. 10);

 

(v)  Directive (EU) 2015/720 of the European Parliament and of the Council of 29 April 2015 amending Directive 94/62/EC as regards reducing the consumption of lightweight plastic carrier bags (OJ L 115, 6.5.2015, p. 11);

 

(vi)  Directive 2012/19/EU on waste electrical and electronic equipment (WEEE) (OJ L 197, 24.7.2012, p. 38);

 

(vii)  Directive 2006/66/EC of the European Parliament and of the Council of 6 September 2006 on batteries and accumulators and waste batteries and accumulators and repealing Directive 91/157/EEC (OJ L 266, 26.9.2006, p. 1);

 

(viii)  Directive 2011/65/EU of the European Parliament and the Council of 8 June 2011 on the restriction of the use of certain hazardous substances in electrical and electronic equipment (OJ L 174, 1.7.2011, p. 88);

 

(ix)  Directive 2000/53/EC of the European Parliament and of the Council of 18 September 2000 on end-of life vehicles (OJ L 269, 21.10.2000, p. 34);

 

(x)  Directive 2005/64/EC of the European Parliament and of the Council of 26 October 2005 on the type-approval of motor vehicles with regard to their reusability, recyclability and recoverability and amending Council Directive 70/156/EEC (OJ L 310, 25.11.2005, p. 10);

 

(xi)  Council Directive 96/59/EC of 16 September 1996 on the disposal of polychlorinated biphenyls and polychlorinated terphenyls (PCB/PCT) (OJ L 243, 24.9.1996, p. 31);

 

(xii)  Directive 2011/65/EU of the European Parliament and the Council of 8 June 2011 on the restriction of the use of certain hazardous substances in electrical and electronic equipment (OJ L 174, 1.7.2011, p. 88);

 

(xiii)  Directive 2001/42/EC of the European Parliament and of the Council of 27 June 2001 on the assessment of the effects of certain plans and programmes on the environment (OJ L 197, 21.7.2001, p. 30);

 

(xiv)  Regulation (EC) No 66/2010 of the European Parliament and of the Council of 25 November 2009 on the EU Ecolabel (OJ L 27, 30.1.2010, p. 1);

 

(xv)  Regulation (EU) No 1257/2013 of the European Parliament and of the Council of 20 November 2013 on ship recycling and amending Regulation (EC) No 1013/2006 and Directive 2009/16/EC (OJ L 330, 10.12.2013, p. 1);

 

(xvi)  Regulation (EU) No 649/2012 of the European Parliament and of the Council of 4 July 2012 concerning the export and import of hazardous chemicals (OJ L 201, 27.7.2012, p. 60);

 

(xvii)  Council Regulation (Euratom) No 1493/93 of 8 June 1993 on shipments of radioactive substances between Member States (OJ L 148, 19.6.1993, p. 1).

Amendment    133

Proposal for a directive

Annex I – part I – point E – paragraph 1 d (new)

Text proposed by the Commission

Amendment

 

1d.   Provisions on marine, air and noise pollution, including:

 

(i)  Directive 2008/50/EC of the European Parliament and of the Council of 21 May 2008 on ambient air quality and cleaner air for Europe (OJ L 152, 11.6.2008, p. 1);

 

(ii)  Directive 2004/107/EC of the European Parliament and of the Council of 15 December 2004 relating to arsenic, cadmium, mercury, nickel and polycyclic aromatichydrocarbons in ambient air (OJ L 23, 26.1.2005, p. 3);

 

(iii)  Regulation (EC) No 850/2004 of the European Parliament and of the Council of 29 April 2004 on persistent organic pollutants and amending Directive 79/117/EEC (OJ L 158, 30.4.2004, p. 7);

 

(iv)  Regulation (EC) No 1005/2009 of the European Parliament and of the Council of 16 September 2009 on substances that deplete the ozone layer (OJ L 286, 31.10.2009, p. 1);

 

(v)  Directive 2001/81/EC of the European Parliament and of the Council of 23 October 2001 on national emission ceilings for certain atmospheric pollutants (OJ L 309, 27.11.2001, p. 22);

 

(vi)  European Parliament and Council Directive 94/63/EC of 20 December 1994 on the control of volatile organic compound (VOC) emissions resulting from the storage of petrol and its distribution from terminals to service stations (OJ L 365, 31.12.1994, p. 24);

 

(vii)  Directive 2009/126/EC of the European Parliament and of the Council of 21 October 2009 on Stage II petrol vapour recovery during refuelling of motor vehicles at service stations (OJ L 285, 31.10.2009, p. 36);

 

(viii)  Regulation (EC) No 715/2007 of the European Parliament and of the Council of 20 June 2007 on type approval of motor vehicles with respect to emissions from light passenger and commercial vehicles (Euro 5 and Euro 6) and on access to vehicle repair and maintenance information (OJ L 171, 29.6.2007, p. 1);

 

(ix)  Regulation (EC) No 595/2009 of the European Parliament and of the Council of 18 June 2009 on type-approval of motor vehicles and engines with respect to emissions from heavy duty vehicles (Euro VI) and on access to vehicle repair and maintenance information and amending Regulation (EC) No 715/2007 and Directive 2007/46/EC and repealing Directives 80/1269/EEC, 2005/55/EC and 2005/78/EC (OJ L 188, 18.7.2009, p. 1);

 

(x)  Directive 2014/94/EU of the European Parliament and of the Council of 22 October 2014 on the deployment of alternative fuels infrastructure (OJ L 307, 28.10.2014, p. 1);

 

(xi)  Regulation (EC) No 443/2009 of the European Parliament and of the Council of 23 April 2009 setting emission performance standards for new passenger cars as part of the Community's integrated approach to reduce CO2 emissions from light-duty vehicles (OJ L 140, 5.6.2009, p. 1);

 

(xii)  Directive 1999/94/EC relating to the availability of consumer information on fuel economy and CO2 emissions in respect of the marketing of new passenger cars (OJ L 12, 18.1.2000, p. 16);

 

(xiii)  Regulation (EU) No 510/2011 of the European Parliament and of the Council of 11 May 2011 setting emission performance standards for new light commercial vehicles as part of the Union's integrated approach to reduce CO2 emissions from light-duty vehicles (OJ L 145, 31.5.2011, p. 1);

 

(xiv)  Directive 2006/40/EC of the European Parliament and of the Council of 17 May 2006 relating to emissions from air conditioning systems in motor vehicles and amending Council Directive 70/156/EEC (OJ L 161, 14.6.2006, p. 12);

 

(xv)  Directive 2009/33/EC of the European Parliament and of the Council of 23 April 2009 on the promotion of clean and energy-efficient road transport vehicles (OJ L 120, 15.5.2009, p. 12);

 

(xvi)  Regulation (EU) 2016/1628 of the European Parliament and of the Council of 14 September 2016 on requirements relating to gaseous and particulate pollutant emission limits and type-approval for internal combustion engines for non-road mobile machinery, amending Regulations (EU) No 1024/2012 and (EU) No 167/2013, and amending and repealing Directive 97/68/EC (OJ L 252, 16.9.2016, p. 53);

 

(xvii)  Directive 2010/75/EU of the European Parliament and of the Council of 24 November 2010 on industrial emissions (integrated pollution prevention and control) (OJ L 334, 17.12.2010, p. 17);

 

(xviii)  Directive (EU) 2015/2193 of the European Parliament and of the Council of 25 November 2015 on the limitation of emissions of certain pollutants into the air from medium combustion plants (OJ L 313, 28.11.2015, p. 1);

 

(xix)  Directive 2008/101/EC of the European Parliament and of the Council of 19 November 2008 amending Directive 2003/87/EC so as to include aviation activities in the scheme for greenhouse gas emission allowance trading within the Community (OJ L 8, 13.1.2009, p. 3);

 

(xx)  Regulation (EC) No 549/2004 of the European Parliament and of the Council of 10 March 2004 laying down the framework for the creation of the single European sky (the framework Regulation) (OJ L 96, 31.3.2004, p. 1);

 

(xxi)  Directive 2006/38/EC of the European Parliament and of the Council of 17 May 2006 amending Directive 1999/62/EC on the charging of heavy goods vehicles for the use of certain infrastructures (OJ L 157, 9.6.2006, p. 8);

 

(xxii)  Directive 2002/84/EC of the European Parliament and of the Council of 5 November 2002 amending the Directives on maritime safety and the prevention of pollution from ships (OJ L 324, 29.11.2002, p. 53);

 

(xxiii)  Regulation (EU) No 546/2014 of the European Parliament and of the Council of 15 May 2014 amending Council Regulation (EC) No 718/1999 on a Community-fleet capacity policy to promote inland waterway transport (OJ L 163, 29.5.2014, p. 15);

 

(xxiv)  Directive 2009/30/EC of the European Parliament and of the Council of 23 April 2009 amending Directive 98/70/EC as regards the specification of petrol, diesel and gas-oil and introducing a mechanism to monitor and reduce greenhouse gas emissions and amending Council Directive 1999/32/EC as regards the specification of fuel used by inland waterway vessels and repealing Directive 93/12/EEC (OJ L 140, 5.6.2009, p. 88);

 

(xxv)  Directive 2009/123/EC of the European Parliament and of the Council of 21 October 2009 amending Directive 2005/35/EC on ship-source pollution and on the introduction of penalties for infringements (OJ L 280, 27.10.2009, p. 52);

 

(xxvi)  Regulation (EU) 2015/757 of the European Parliament and of the Council of 29 April 2015 on the monitoring, reporting and verification of carbon dioxide emissions from maritime transport, and amending Directive 2009/16/EC (OJ L 123, 19.5.2015, p. 55);

 

(xxvii)  Regulation (EC) No 782/2003 of the European Parliament and of the Council of 14 April 2003 on the prohibition of organotin compounds on ships (OJ EU L 115, 9.5.2003, p. 1);

 

(xxviii)  Directive 2002/49/EC of the European Parliament and of the Council of 25 June 2002 relating to the assessment and management of environmental noise (OJ L 189, 18.7.2002, p. 12);

 

(xxix)  Directive 2000/14/EC of the European Parliament and of the Council of 8 May 2000 on the approximation of the laws of the Member States relating to the noise emission in the environment by equipment for use outdoors (OJ L 162, 3.7.2000, p. 1);

 

(xxx)  Directive 2002/49/EC of the European Parliament and the Council of 25 June 2002 relating to the assessment and management of environmental noise (OJ L 189, 18.7.2002, p. 12).

Amendment    134

Proposal for a directive

Annex I – part I – point E – paragraph 1 e (new)

Text proposed by the Commission

Amendment

 

1e.   Provisions on the protection and management of water and soils, including:

 

(i)  Directive 2000/60/EC of the European Parliament and of the Council of 23 October 2000 establishing a framework for Community action in the field of water policy (OJ L 327, 22.12.2000, p. 1);

 

(ii)  Directive 2008/105/EC of the European Parliament and of the Council of 16 December 2008 on environmental quality standards in the field of water policy, amending and subsequently repealing Council Directives 82/176/EEC, 83/513/EEC, 84/156/EEC, 84/491/EEC, 86/280/EEC and amending Directive 2000/60/EC of the European Parliament and of the Council (OJ L 348, 24.12.2008, p. 84);

 

(iii)  Directive 2006/118/EC of the European Parliament and of the Council of 12 December 2006 on the protection of groundwater against pollution and deterioration (OJ L 372, 27.12.2006, p. 19);

 

(iv)  Council Directive 91/271/EEC of 21 May 1991 concerning urban waste-water treatment (OJ L 135, 30.5.1991, p. 40);

 

(v)  Council Directive 98/83/EC of 3 November 1998 on the quality of water intended for human consumption (OJ L 330, 5.12.1998, p. 32);

 

(vi)  Commission Directive 2003/40/EC of 16 May 2003 establishing the list, concentration limits and labelling requirements for the constituents of natural mineral waters and the conditions for using ozone-enriched air for the treatment of natural mineral waters and spring waters (OJ L 126, 22.5.2003, p. 34);

 

(vii)  Commission Regulation (EU) No 115/2010 of 9 February 2010 laying down the conditions for use of activated alumina for the removal of fluoride from natural mineral waters and spring waters (OJ L 37, 10.2.2010, p. 13);

 

(viii)  Directive 2006/7/EC of the European Parliament and of the Council of 15 February 2006 on the management of bathing water quality and repealing Directive 76/160/EEC (OJ L 64, 4.3.2006, p. 37);

 

(ix)  Directive 2008/56/EC of the European Parliament and of the Council of 17 June 2008 establishing a framework for community action in the field of marine environmental policy (Marine Strategy Framework Directive) (OJ L 164, 25.6.2008, p. 19);

 

(x)  Regulation (EC) No 648/2004 of the European Parliament and of the Council of 31 March 2004 on detergents (OJ L 104, 8.4.2004, p. 1);

 

(xi)  Council Directive 91/676/EEC of 12 December 1991 concerning the protection of waters against pollution caused by nitrates from agricultural sources (OJ L 375, 31.12.1991, p. 1);

 

(xii)  Directive 2006/118/EC of the European Parliament and of the Council of 12 December 2006 on the protection of groundwater against pollution and deterioration (OJ L 372, 27.12.2006, p. 19);

 

(xiii)  Directive 2007/60/EC of the European Parliament and of the Council of 23 October 2007 on the assessment and management of flood risks (OJ L 288, 6.11.2007, p. 27);

 

(xiv)  Directive 2014/52/EU of the European Parliament and of the Council of 16 April 2014 amending Directive 2011/92/EU on the assessment of the effects of certain public and private projects on the environment (OJ L 124, 25.4.2014, p. 1).

Amendment    135

Proposal for a directive

Annex I – part I – point E – paragraph 1 f (new)

Text proposed by the Commission

Amendment

 

1f.   Provisions relating to the protection of nature and biodiversity:

 

(i)  Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora (OJ L 206, 22.7.1992, p. 7);

 

(ii)  Directive 2009/147/EC of the European Parliament and of the Council of 30 November 2009 on the conservation of wild birds (OJ L 20, 26.1.2010, p. 7);

 

(iii)  Regulation (EU) No 1143/2014 of the European Parliament and of the Council of 22 October 2014 on the prevention and management of the introduction and spread of invasive alien species (OJ L 317, 4.11.2014, p. 35);

 

(iv)  Council Regulation (EC) No 1936/2001 of 27 September 2001 laying down control measures applicable to fishing for certain stocks of highly migratory fish (OJ L 263, 3.10.2001, p. 1);

 

(v)  Council Regulation (EC) No 708/2007 of 11 June 2007 concerning use of alien and locally absent species in aquaculture (OJ L 168, 28.6.2007, p. 1);

 

(vi)  Council Directive 83/129/EC of 28 March 1983 concerning the importation into Member States of skins of certain seal pups and products derived therefrom (OJ L 91, 9.4.1983, p. 30);

 

(vii)  Regulation (EC) No 1007/2009 of the European Parliament and of the Council of 16 September 2009 on trade in seal products (OJ L 286, 31.10.2009, p. 36);

 

(viii)  Council Regulation (EC) No 734/2008 of 15 July 2008 on the protection of vulnerable marine ecosystems in the high seas from the adverse impacts of bottom fishing gears (OJ L 201, 30.7.2008, p. 8);

 

(ix)  Council Regulation (EC) No 812/2004 of 26 April 2004 laying down measures concerning bycatches of cetaceans in fisheries and amending Regulation (EC) No 88/98 (OJ L 150, 30.4.2004, p. 12);

 

(x)  Council Regulation (EC) No 338/97 of 9 December 1996 on the protection of species of wild fauna and flora by regulating trade therein (OJ L 61, 3.3.1997, p. 1);

 

(xi)  Commission Regulation (EC) No 865/2006 of 4 May 2006 laying down detailed rules concerning the implementation of Council Regulation(EC) No 338/97 on the protection of species of wild fauna and flora by regulating trade therein (OJ L 166, 19.6.2006, p. 1);

 

(xii)  Commission Implementing Regulation (EU) No 792/2012 of 23 August 2012 laying down rules for the design of permits, certificates and other documents provided for in Council Regulation (EC) No 338/97 on the protection of species of wild fauna and flora by regulating trade therein and amending Commission Regulation (EC) No 865/2006 (OJ L 242, 7.9.2012, p.13);

 

(xiii)  Regulation (EC) No 1523/2007 of the European Parliament and of the Council of 11 December 2007 banning the placing on the market and the import to, or export from, the Community of cat and dog fur, and products containing such fur (OJ L 343, 27.12.2007, p. 1);

 

(xiv)  Council Directive 1999/22/EC of 29 March 1999 relating to the keeping of wild animals in zoos (OJ L 94, 9.4.1999, p. 24);

 

(xv)  Regulation (EU) No 995/2010 of the European Parliament and of the Council of 20 October 2010 laying down the obligations of operators who place timber and timber products on the market (OJ L 295, 12.11.2010, p. 23);

 

(xvi)  Council Regulation (EC) No 2173/2005 of 20 December 2005 on the establishment of a FLEGT licensing scheme for imports of timber into the European Community (OJ L 347, 30.12.2005, p. 1);

 

(xvii)  Commission Regulation (EU) No 1307/2014 of 8 December 2014 on defining the criteria and geographic ranges of highly biodiverse grassland for the purposes of Article 7b(3)(c) of Directive 98/70/EC of the European Parliament and of the Council relating to the quality of petrol and diesel fuels and Article 17(3)(c) of Directive 2009/28/EC of the European Parliament and of the Council on the promotion of the use of energy from renewable sources (OJ L 351, 9.12.2014, p. 3).

Amendment    136

Proposal for a directive

Annex I – part I – point E – paragraph 1 g (new)

Text proposed by the Commission

Amendment

 

1g.   Provisions on chemicals, including:

 

(i)  Regulation (EC) No 1907/2006 of the European Parliament and of the Council of 18 December 2006 concerning the Registration, Evaluation, Authorisation and Restriction of Chemicals (REACH), establishing a European Chemicals Agency, amending Directive 1999/45/EC and repealing Council Regulation (EEC) No 793/93 and Commission Regulation (EC) No 1488/94 as well as Council Directive 76/769/EEC and Commission Directives 91/155/EEC, 93/67/EEC, 93/105/EC and 2000/21/EC (OJ L 396, 30.12.2006, p. 1).

Amendment    137

Proposal for a directive

Annex I – part I – point E – paragraph 1 h (new)

Text proposed by the Commission

Amendment

 

1h.   Provisions relating to organic products, including:

 

(i)  Council Regulation (EC) No 834/2007 of 28 June 2007 on organic production and labelling of organic products and repealing Regulation (EEC) No 2092/91 (OJ L 189, 20.7.2007, p. 1).

Amendment    138

Proposal for a directive

Annex I – part I – point F – paragraph 1 – point i a (new)

Text proposed by the Commission

Amendment

 

 

(ia) Council Directive 2014/87/Euratom of 8 July 2014 amending Directive 2009/71/Euratom establishing a Community framework for the nuclear safety of nuclear installations (OJ L 219, 25.7.2014, p. 42);

Amendment    139

Proposal for a directive

Annex I – part I – point G – title

Text proposed by the Commission

Amendment

G  Article 1(a)(vii) – food and feed safety, animal health and animal welfare:

G  Article 1(a)(vii) – food and feed safety:

Amendment    140

Proposal for a directive

Annex I – part I – point G – point 3 a (new)

Text proposed by the Commission

Amendment

 

3a.  Other legislative acts relevant to food and feed safety, in particular:

 

(i)   Regulation (EC) No 1829/2003 of the European Parliament and of the Council of 22 September 2003 on genetically modified food and feed (OJ L 268, 18.10.2003, p. 1);

 

(ii)  Directive 2009/41/EC of the European Parliament and of the Council of 6 May 2009 on the contained use of genetically modified micro-organisms (OJ L 125, 21.5.2009, p. 75);

 

(iii)  Regulation (EC) 1830/2003 of the European Parliament and of the Council of 22 September 2003 concerning the traceability and labelling of genetically modified organisms and the traceability of food and feed products produced from genetically modified organisms and amending Directive 2001/18/EC (OJ L 268, 18.10.2003, p. 24);

 

(iv)  Regulation (EC) No 1946/2003 of the European Parliament and of the Council of 15 July 2003 on transboundary movements of genetically modified organisms (OJ L 287, 5.11.2003, p. 1);

 

(v)   Regulation (EC) No 852/2004 of the European Parliament and of the Council of 29 April 2004 on the hygiene of foodstuffs (OJ L 139, 30.4.2004, p. 1);

 

(vi)  Regulation (EC) No 2003/2003 of the European Parliament and of the Council of 13 October 2003 relating to fertilisers (OJ L 304, 21.11.2003, p. 1);

 

(vii)  Regulation (EC) No 1069/2009 of the European Parliament and of the Council of 21 October 2009 laying down health rules as regards animal by-products and derived products not intended for human consumption (OJ L 300, 14.11.2009, p. 1);

 

(viii)  Regulation (EC) No 1107/2009 of the European Parliament and of the Council of 21 October 2009 concerning the placing of plant protection products on the market and repealing Council Directives 91/414/EEC and 79/117/EEC (OJ L 309, 24.11.2009, p. 1);

 

(ix)  Directive 2009/128/EC of the European Parliament and of the Council of 21 October 2009 establishing a framework for Community action to achieve the sustainable use of pesticides (OJ L 309, 24.11.2009, p. 71);

 

(x)  Regulation (EC) No 396/2005 of the European Parliament and of the Council of 23 February 2005 on maximum residue levels (MRLs)of pesticides in or on food and feed of plant and animal origin (OJ L 70, 16.3.2005, p. 1);

 

(xi)  Council Regulation (Euratom) 2016/52 of 15 January 2016 laying down maximum permitted levels of radioactive contamination of food and feed following a nuclear accident or any other case of radiological emergency, and repealing Regulation (Euratom) No 3954/87 and Commission Regulations (Euratom) No 944/89 and (Euratom) No 770/90 (OJ L 13, 20.1.2016, p. 2);

 

(xii)  Council Regulation (Euratom) 2016/52 of 15 January 2016 laying down maximum permitted levels of radioactive contamination of food and feed following a nuclear accident or any other case of radiological emergency, and repealing Regulation (Euratom) No 3954/87 and Commission Regulations (Euratom) No 944/89 and (Euratom) No 770/90 (OJ L 13, 20.1.2016, p. 2);

 

(xiii)  Council Regulation (Euratom) 2016/52 of 15 January 2016 laying down maximum permitted levels of radioactive contamination of food and feed following a nuclear accident or any other case of radiological emergency, and repealing Regulation (Euratom) No 3954/87 and Commission Regulations (Euratom) No 944/89 and (Euratom) No 770/90 (OJ L 13, 20.1.2016, p. 2);

 

(xiv)  Council Decision 2002/628/EC of 25 June 2002 concerning the conclusion, on behalf of the European Community, on the Cartagena Protocol on Biosafety (OJ L 201, 31.7.2002, p. 48);

 

(xv)  Regulation(EU) No 528/2012 of the European Parliament and of the Council of 22 May 2012 concerning the making available on the market and use of biocidal products (OJ L 167, 27.6.2012, p. 1);

 

(xvi)  Regulation (EC) No 470/2009 of the European Parliament and of the Council of 6 May 2009 laying down Community procedures for the establishment of residue limits of pharmacologically active substances in foodstuffs of animal origin repealing Council Regulation (EEC) No 2377/90 and amending Directive 2001/82/EC of the European Parliament and of the Council and Regulation (EC) No 726/2004 of the European Parliament and of the Council (OJ L 152, 16.6.2009, p. 11);

 

(xvii)  Council Directive 96/23/EC of 29 April 1996 on measures to monitor certain substances and residues thereof in live animals and animal products and repealing Directives 85/358/EEC and 86/469/EEC and Decisions 89/187/EEC and 91/664/EEC (OJ L 125, 23.5.1996, p. 10);

 

(xviii)  Council Directive 96/22/EC of 29 April 1996 concerning the prohibition on the use in stock-farming of certain active substances having a hormonal or thyrostatic action and of beta-agonists and repealing Directives 81/602/EEC, 88/146/EEC and 88/299/EEC (OJ L 125, 23.5.1996, p. 3);

 

(xix)  Regulation (EC) No 853/2004 of the European Parliament and of the Council of 29 April 2004 laying down specific hygiene rules for food of animal origin (OJ L 139, 30.4.2004, p. 55);

 

(xx)  Regulation (EC) No 854/2004 of the European Parliament and of the Council of 29 April 2004 laying down specific rules for the organisation of official controls on products of animal origin intended for human consumption (OJ L 139, 30.4.2004, p. 206);

 

(xxi)  Council Directive 2002/99/EC of 16 December 2002 laying down the animal health rules governing the production, processing, distribution and introduction of products of animal origin for human consumption (OJ L 18, 23.1.2003, p. 11);

 

(xxii)  Commission Regulation (EC) No 2073/2005 of 15 November 2005 on microbiological criteria for foodstuffs (OJ L 338, 22.12.2005, p. 1);

 

(xxiii)  Regulation (EC) No 2160/2003 of the European Parliament and of the Council of 17 November 2003 on the control of Salmonella and other specified food-borne zoonotic agents (OJ L 325, 12.12.2003, p. 1);

 

(xxiv)  Directive 2003/99/EC of the European Parliament and of the Council of 17 November 2003 on the monitoring of zoonoses and zoonotic agents, amending Council Decision 90/424/EEC and repealing Council Directive 92/117/EEC (OJ L 325, 12.12.2003, p. 31);

 

(xxv)  Regulation (EC) No 1331/2008 of the European Parliament and of the Council of 16 December 2008 establishing a common authorisation procedure for food additives, enzymes and flavourings (OJ L 354, 31.12.2008, p. 1);

 

(xxvi)  Regulation (EC) No 1332/2008 of the European Parliament and of the Council of 16 December 2008 on food enzymes and amending Council Directive 83/417/EEC, Council Regulation (EC) No 1493/1999, Directive 2000/13/EC, Council Directive 2001/112/EC and Regulation (EC) No 258/97 (OJ L 354, 31.12.2008, p. 7);

 

(xxvii)  Regulation (EC) No 1333/2008 of the European Parliament and of the Council of 16 December 2008 on food additives (OJ L 354, 31.12.2008, p. 16);

 

(xxviii)  Regulation (EC) No 1334/2008 of the European Parliament and of the Council of 16 December 2008 on flavourings and certain food ingredients with flavouring properties for use in and on foods and amending Council Regulation (EEC) No 1601/91, Regulations (EC) No 2232/96 and (EC) No 110/2008 and Directive 2000/13/EC (OJ L 354, 31.12.2008, p. 34);

 

(xxix)  Regulation (EC) No 2065/2003 of the European Parliament and of the Council of 10 November 2003 on smoke flavourings used or intended for use in or on foods (OJ L 309, 26.11.2003, p. 1);

 

(xxx)  Directive 2009/32/EC of the European Parliament and of the Council of 23 April 2009 on the approximation of the laws of the Member States on extraction solvents used in the production of foodstuffs and food ingredients (OJ L 141, 6.6.2009, p. 3);

 

(xxxi)  Council Regulation (EEC) No 315/93 of 8 February 1993 laying down Community procedures for contaminants in food (OJ L 37, 13.2.1993, p. 1);

 

(xxxii)  Commission Regulation (EC) No 1881/2006 of 19 December 2006 setting maximum levels for certain contaminants in foodstuffs (OJ L 364, 20.12.2006, p. 5);

 

(xxxiii) Directive 1999/2/EC of the European Parliament and of the Council of 22 February 1999 on the approximation of the laws of the Member States concerning foods and food ingredients treated with ionising radiation (OJ L 66, 13.3.1999, p. 16);

 

(xxxiv)  Regulation (EC) No 1935/2004 of the European Parliament and of the Council of 27 October 2004 on materials and articles intended to come into contact with food and repealing Directives 80/590/EEC and 89/109/EEC (OJ L 338, 13.11.2004, p. 4);

 

(xxxv)  Council Directive 82/711/EEC of 18 October 1982 laying down the basic rules necessary for testing migration of the constituents of plastic materials and articles intended to come into contact with foodstuffs (OJ L 297, 23.10.1982, p. 26);

 

(xxxvi)  Regulation (EU) No 1169/2011 of the European Parliament and of the Council of 25 October 2011 on the provision of food information to consumers, amending Regulations (EC) No 1924/2006 and (EC) No 1925/2006 of the European Parliament and of the Council, and repealing Commission Directive 87/250/EEC, Council Directive 90/496/EEC, Commission Directive 1999/10/EC, Directive 2000/13/EC of the European Parliament and of the Council, Commission Directives 2002/67/EC and 2008/5/EC and Commission Regulation (EC) No 608/2004 (OJ L 304, 22.11.2011, p. 18);

 

(xxxvii) Regulation (EU) No 609/2013 of the European Parliament and of the Council of 12 June 2013 on food intended for infants and young children, food for special medical purposes, and total diet replacement for weight control and repealing Council Directive 92/52/EEC, Commission Directives 96/8/EC, 1999/21/EC, 2006/125/EC and 2006/141/EC, Directive 2009/39/EC of the European Parliament and of the Council and Commission Regulations (EC) No 41/2009 and (EC) No 953/2009 (OJ L 181, 29.6.2013, p. 35);

 

(xxxiii)   Regulation (EU) 2018/848 of the European Parliament and of the Council of 30 May 2018 on organic production and labelling of organic products and repealing Council Regulation (EC) No 834/2007 (OJ L 150, 14.6.2018, p. 1);

 

(xxxix) Regulation (EU) No 1305/2013 of the European Parliament and of the Council of 17 December 2013 on support for rural development by the European Agricultural Fund for Rural Development(EAFRD) and repealing Council Regulation (EC) No 1698/2005 (OJ L 347, 20.12.2013, p. 487);

 

(xxxx) Regulation (EU) No 1307/2013 of the European Parliament and of the Council of 17 December 2013 establishing rules for direct payments to farmers under support schemes within the framework of the common agricultural policy and repealing Council Regulation (EC) No637/2008 and Council Regulation (EC) No 73/2009 (OJ L 354, 28.12.2013, p. 22);

 

(xxxxi) Regulation (EU) No 1308/2013 of the European Parliament and of the Council of 17 December 2013 establishing a common organisation of the markets in agricultural products and repealing Council Regulations (EEC) No 922/72, (EEC) No 234/79, (EC) No 1037/2001 and (EC) No 1234/2007 (OJ L 347, 20.12.2013, p. 671);

 

(xxxxii) Regulation(EC) No 1831/2003 of the European Parliament and of the Council of 22 September 2003 on additives for use in animal nutrition (OJ L 268, 18.10.2003, p. 29);

 

(xxxxiii) Council Directive 90/167/EEC of26 March 1990 laying down the conditions governing the preparation, placing on the market and use of medicated feedingstuffs in the Community (OJ L 92, 7.4.1990, p. 42);

 

(xxxxiv) Directive 2001/82/EC of the European Parliament and of the Council of 6 November 2001 on the Community code relating to veterinary medicinal products (OJ L 311, 28.11.2001, p. 1);

 

(xxxxv) Directive 2002/32/EC of the European Parliament and of the Council of 7 May 2002 on undesirable substances in animal feed (OJ L 140, 30.5.2002, p. 10);

 

(xxxxvi) Regulation (EC) No 767/2009 of the European Parliament and of the Council of 13 July 2009 on the placing on the market and use of feed, amending European Parliament and Council Regulation(EC) No 1831/2003 and repealing Council Directive 79/373/EEC, Commission Directive 80/511/EEC, Council Directives 82/471/EEC, 83/228/EEC, 93/74/EEC,93/113/EC and 96/25/EC and Commission Decision 2004/217/EC (OJ L 229, 1.9.2009, p. 1);

 

(xxxxii) Commission Directive 2008/38/EC of 5 March 2008 establishing a list of intended uses of animal feedingstuffs for particular nutritional purposes (OJ L 62, 6.3.2008, p. 9);

 

(xxxxiii) Regulation (EC) No 183/2005 of the European Parliament and of the Council of 12 January 2005 laying down requirements for feed hygiene (OJ L 35, 8.2.2005, p. 1).

Amendment    141

Proposal for a directive

Annex I – part I – paragraph 4 – introductory part

Text proposed by the Commission

Amendment

4.  Protection of animal welfare as regulated by:

Ga.  Article 1(a)(vii)(a) Protection of animals and health and well-being of animals.

 

Provisions and standards on the protection, health and well-being of animals, as regulated in particular by:

Amendment    142

Proposal for a directive

Annex I – part I – point G a – points iv - xxv (new)

Text proposed by the Commission

Amendment

 

(iv)  Directive 2010/63/EU of the European Parliament and of the Council of 22 September 2010 on the protection of animals used for scientific purposes (OJ L 276, 20.10.2010, p. 33).

 

(v)  Council Directive 90/425/EEC of 26 June 1990 concerning veterinary and zootechnical checks applicable in intra- Community trade in certain live animals and products with a view to the completion of the internal market (OJ L 224, 18.8.1990, p. 29);

 

(vi)  Council Directive 91/496/EEC of 15 July 1991 laying down the principles governing the organization of veterinary checks on animals entering the Community from third countries and amending Directives 89/662/EEC, 90/425/EEC and 90/675/EEC (OJ L 268, 24.9.1991, p. 56);

 

(vii)  Council Directive 89/662/EEC of 11 December 1989 concerning veterinary checks in intra-Community trade with a view to the completion of the internal market (OJ L 395, 30.12.1989, p. 13);

 

(viii)  Regulation (EC) No 1223/2009 of the European Parliament and of the Council of 30 November 2009 on cosmetic products (OJ L 342, 22.12.2009, p. 59);

 

(ix)  Regulation (EU) 2016/1012 of the European Parliament and of the Council of 8 June 2016 on zootechnical and genealogical conditions for the breeding, trade in and entry into the Union of pure bred breeding animals, hybrid breeding pigs and the germinal products thereof and amending Regulation (EU) No 652/2014, Council Directives 89/608/EEC and 90/425/EEC and repealing certain acts in the area of animal breeding (‘Animal Breeding Regulation’) (OJ L 171, 29.6.2016, p. 66);

 

(x)  Council Directive 2008/73/EC of 15 July 2008 simplifying procedures of listing and publishing information in the veterinary and zootechnical fields and amending Directives 64/432/EEC, 77/504/EEC,88/407/EEC, 88/661/EEC, 89/361/EEC, 89/556/EEC, 90/426/EEC, 90/427/EEC,90/428/EEC, 90/429/EEC, 90/539/EEC, 91/68/EEC, 91/496/EEC, 92/35/EEC,92/65/EEC, 92/66/EEC, 92/119/EEC, 94/28/EC, 2000/75/EC, Decision 2000/258/EC and Directives 2001/89/EC, 2002/60/EC and 2005/94/EC (OJ L 219, 14.8.2008, p. 40);

 

(xi)  Council Regulation (EC) No 1255/97 of 25 June1997 concerning Community criteria for staging points and amending the route plan referred to in the Annex to Directive 91/628/EEC (OJ L 174, 2.7.1997, p. 1);

 

(xii)  Council Directive 96/93/EC of 17 December 1996 on the certification of animals and animal products(OJ L 13, 16.1.1997, p. 28);

 

(xiii)  Council Regulation (EC) No 21/2004 of 17 December 2003 establishing a system for the identification and registration of ovine and caprine animals and amending Regulation (EC) No 1782/2003 and Directives 92/102/EEC and 64/432/EEC (OJ L 5, 9.1.2004, p. 8);

 

(xiv)  Commission Decision 2006/968/EC of 15 December 2006 implementing Council Regulation (EC) No 21/2004 as regards guidelines and procedures for the electronic identification of ovine and caprine animals (OJ L 401, 30.12.2006, p. 41);

 

(xv)  Council Decision 1999/879/EC of 17 December 1999 concerning the placing on the market and administration of bovine somatotrophin (BST) and repealing Decision 90/218/EEC (OJ L 331, 23.12.1999, p. 71);

 

(xvi)  Council Directive 1999/74/EC of 19 July 1999laying down minimum standards for the protection of laying hens (OJ L 203, 3.8.1999, p. 53);

 

(xvii)  Council Directive 2007/43/EC of 28 June 2007 laying down minimum rules for the protection of chickens kept for meat production (OJ L 182, 12.7.2007, p. 19);

 

(xiii)  Council Directive 2008/119/EC of 18 December 2008 laying down minimum standards for the protection of calves (OJ L 10, 15.1.2009, p. 7);

 

(xix)  Council Directive 2008/120/EC of 18 December 2008 laying down minimum standards for the protection of pigs (OJ L 47, 18.2.2009, p. 5);

 

(xx)  Council Regulation (EEC) No 3254/91 of 4 November 1991 prohibiting the use of leghold traps in the Community and the introduction into the Community of pelts and manufactured goods of certain wild animal species originating in countries which catch them by means of legholdtraps or trapping methods which do not meet international humane trapping standards (OJ L 308, 9.11.1991, p. 1);

 

(xxi)  Directive 2013/31/EU of the European Parliament and of the Council of 12 June 2013 amending Council Directive92/65/EEC as regards the animal health requirements governing intra-Union trade in and imports into the Union of dogs, cats and ferrets (OJ L 178, 28.6.2013, p. 107);

 

(xxii)  Regulation (EU) No 576/2013 of the European Parliament and of the Council of 12 June 2013 on the non-commercial movement of pet animals and repealing Regulation (EC) No 998/2003 (OJ L 178, 28.6.2013, p. 1);

 

(xxiii)  Council Directive 2009/156/EC of 30 November2009 on animal health conditions governing the movement and importation from third countries of equidae (OJ L 192, 23.7.2010, p. 1);

 

(xxiv)  Council Directive 92/35/EEC of 29 April 1992laying down control rules and measures to combat African horse sickness (OJ L 157, 10.6.1992, p. 19).

Amendment    143

Proposal for a directive

Annex I – part I – point H – title

Text proposed by the Commission

Amendment

H  Article 1(a)(viii) – public health:

H  Article 1(a)(viii) – public health and health security:

Amendment    144

Proposal for a directive

Annex I – part I – point H – point 1 – point i a (new)

Text proposed by the Commission

Amendment

 

ia.  Commission Directive (EU) 2016/1214 of 25 July 2016 amending Directive 2005/62/EC as regards quality system standards and specifications for blood establishments (OJ L 199, 26.7.2016, p. 14);

Amendment    145

Proposal for a directive

Annex I – part I – point H – point 1 – point i b (new)

Text proposed by the Commission

Amendment

 

ib.  Commission Directive 2005/61/EC of 30 September 2005 implementing Directive 2002/98/EC of the European Parliament and of the Council as regards traceability requirements and notification of serious adverse reactions and events (OJ L 256, 1.10.2005, p. 32);

Amendment    146

Proposal for a directive

Annex I – part I – point H – point 1 – point i c (new)

Text proposed by the Commission

Amendment

 

ic.   Commission Directive 2004/33/EC of 22 March 2004 implementing Directive 2002/98/EC of the European Parliament and of the Council as regards certain technical requirements for blood and blood components (OJ L 91, 30.3.2004, p. 25);

Amendment    147

Proposal for a directive

Annex I – part I – point H – point 1 – point i d (new)

Text proposed by the Commission

Amendment

 

id.   Commission Directive 2005/62/EC of 30 September 2005 implementing Directive 2002/98/EC of the European Parliament and of the Council as regards Community standards and specifications relating to a quality system for blood establishments (OJ L 256, 1.10.2005, p. 41);

Amendment    148

Proposal for a directive

Annex I – part I – point H – point 1 – point iii a (new)

Text proposed by the Commission

Amendment

 

iiia.  Directive 2010/53/EU of the European Parliament and of the Council of 7 July 2010 on standards of quality and safety of human organs intended for transplantation (OJ L 207, 6.8.2010, p. 14).

Amendment    149

Proposal for a directive

Annex I – part I – point H – point 5

Text proposed by the Commission

Amendment

5.  Manufacture, presentation and sale of tobacco and related products regulated by Directive 2014/40/EU of the European Parliament and of the Council of 3 April 2014 on the approximation of the laws, regulations and administrative provisions of the Member States concerning the manufacture, presentation and sale of tobacco and related products and repealing Directive 2001/37/EC (OJ L 127, 29.4.2014, p. 1).

5.  Manufacture, presentation and sale of tobacco and related products regulated by Directive 2014/40/EU of the European Parliament and of the Council of 3 April 2014 on the approximation of the laws, regulations and administrative provisions of the Member States concerning the manufacture, presentation and sale of tobacco and related products and repealing Directive 2001/37/EC (OJ L 127, 29.4.2014, p. 1), and the advertising and sponsorship of tobacco products as regulated by Directive 2003/33/EC of the European Parliament and of the Council of 26 May 2003 on the approximation of the laws, regulations and administrative provisions of the Member States relating to the advertising and sponsorship of tobacco products (OJ L 152, 20.6.2003, p. 16).

Amendment    150

Proposal for a directive

Annex I – part I – point H – point 5 a (new)

Text proposed by the Commission

Amendment

 

5a.  Averting alcohol-related harm and the priorities set by the European strategy to support Member States in reducing alcohol-related harm.

Amendment    151

Proposal for a directive

Annex I – part I – point H – point 5 b (new)

Text proposed by the Commission

Amendment

 

5b.  Other legislative acts relating to public health, in particular:

 

(i) Regulation (EU) 2017/746 of the European Parliament and of the Council of 5 April 2017 on in vitro diagnostic medical devices and repealing Directive 98/79/EC and Commission Decision 2010/227/EU (OJ L 117, 5.5.2017, p. 176);

 

(ii) Regulation (EC) No 1223/2009 of the European Parliament and of the Council of 30 November 2009 on cosmetic products (OJ L 342, 22.12.2009, p. 59).

Amendment    152

Proposal for a directive

Annex I – part I – point J a (new)

Text proposed by the Commission

Amendment

 

Ja.  Article 1 (a) (xa) - employment, working conditions, workers' rights and the principle of equal opportunities and treatment between men and women at work.

 

1.  Employment legislation of the European Union, as regulated in particular by:

 

(i)  Council Directive91/533/EEC of 14 October 1991 on an employer's obligation to inform employees of the conditions applicable to the contract or employment relationship (OJ L288, 18.10.1991, p. 32);

 

(ii)  Council Directive91/383/EEC of 25 June 1991 supplementing the measures to encourage improvements in the safety and health at work of workers with a fixed-duration employment relationship or a temporary employment relationship (OJ L 206, 29.7.1991, p.19);

 

(iii)  Council Directive 94/33/EC of 22 June 1994 on the protection of young people at work (OJ L 216, 20.8.1994,p. 12);

 

(iv)  Council Directive 98/59/EC on the approximation of the laws of the Member States relating to collective redundancies (OJ L 225, 12.8.1998, p. 16);

 

(v)  Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation (OJ L 303, 2.12.2000, p. 16);

 

(vi)  Council Directive 2001/23/EC of 12 March 2001 on the approximation of the laws of the Member States relating to the safeguarding of employees' rights in the event of transfers of undertakings, businesses or parts of undertakings or businesses (OJ L 82,22.3.2001, p. 16);

 

(vii)  Directive 2002/14/EC of the European Parliament and of the Council of 11 March 2002 establishing a general framework for informing and consulting employees in the European Community - Joint declaration of the European Parliament, the Council and the Commission on employee representation (OJ L 80, 23.3.2002, p. 29–34)

 

(viii)  Directive 2003/88/EC of the European Parliament and of the Council of 4 November 2003 concerning certain aspects of the organisation of working time (OJ L 299, 18.11.2003, p. 9);

 

(ix)  Directive 2006/54/EC of the European Parliament and of the Council of 5 July 2006 on the implementation of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation (OJ L 204, 26.7.2006, p. 23);

 

(x)  Directive 2008/94/EC of the European Parliament and of the Council of 22 October 2008 on the protection of employees in the event of the insolvency of their employer (OJ L 283,28.10.2008, p. 36);

 

(xi)  Directive 2008/104/EC of the European Parliament and of the Council of 19 November 2008 on temporary agency work (OJ L 327, 5.12.2008, p. 9–14 );

 

(xii)  Directive 2009/38/EC of the European Parliament and of the Council of 6 May 2009 on the establishment of a European Works Council or a procedure in Community-scale undertakings and Community-scale groups of undertakings for the purposes of informing and consulting employees (OJ L 122, 16.5.2009, p. 28–44);

 

(xiii)  Directive 2010/41/EU of the European Parliament and of the Council of 7 July 2010 on the application of the principle of equal treatment between men and women engaged in an activity in a self-employed capacity and repealing Council Directive 86/613/EEC (OJ L180, 15.7.2010, p. 1);

 

(xiv)  Directive 2014/67/EU of the European Parliament and of the Council of 15 May 2014 on the enforcement of Directive 96/71/EC concerning the posting of workers in the framework of the provision of services and amending Regulation (EU) No 1024/2012 on administrative cooperation through the Internal Market Information System (‘the IMI Regulation’) (OJ L 159, 28.5.2014, p. 11);

 

(xv)  Regulation (EC) No 450/2003 of the European Parliament and of the Council of 27 February 2003 concerning the labour cost index (OJ L 69, 13.3.2003, p. 1);

 

(xvi)  Regulation (EU) 2015/848 of the European Parliament and of the Council of 20 May 2015 on insolvency proceedings (OJ L 141, 5.6.2015, p. 19);

 

2.  Working conditions, as regulated in particular by:

 

(i)  all individual Directives within the meaning of Article 16(1) of Directive 89/391/EEC;

 

(ii)  Directive 2009/104/EC of the European Parliament and of the Council of 16 September 2009 concerning the minimum safety and health requirements for the use of work equipment by workers at work (second individual Directive within the meaning of Article 16(1) of Directive 89/391/EEC) (OJ L 260, 3.10.2009, p. 5);

 

(iii)  Directive 2009/148/EC of the European Parliament and of the Council of 30 November 2009 on the protection of workers from the risks related to exposure to asbestos at work(OJ L 330, 16.12.2009, p. 28);

 

(iv)  Regulation (EC) No 1338/2008 of the European Parliament and of the Council of 16 December 2008 on Community statistics on public health and health and safety at work (OJ L 354, 31.12.2008, p. 70).

Amendment    153

Proposal for a directive

Annex I – part II – part A – title

Text proposed by the Commission

Amendment

A  Article 1(a)(ii) – financial services, prevention of money laundering and terrorist financing:

A  Article 1(a)(ii) – financial services, tax evasion, tax fraud, tax avoidance, prevention of money laundering and terrorist financing:

Amendment    154

Proposal for a directive

Annex I – part II – subpart C a (new)

Text proposed by the Commission

Amendment

 

C a  protection of the Union’s financial interests:

 

(i)  Regulation (EU, EURATOM) No 1023/2013 of the European Parliament and of the Council of 22 October 2013 amending the Staff Regulations of Officials of the European Union and the Conditions of Employment of Other Servants of the European Union.

(1)

OJ C 405, 9.11.2018, p. 1.

(2)

Not yet published in the Official Journal.


EXPLANATORY STATEMENT

Protection for whistleblowers: an essential tool in defending the public interest

The debate in Europe on how best to protect whistleblowers has moved forward significantly in recent decades. In the light of numerous studies and feedback on experiences, it is now commonly accepted that whistleblowers play a positive role in preventing and remedying acts prejudicial to the public interest. However, the potential benefits of whistleblowing are a long way from being fully exploited since many witnesses of acts prejudicial to the public interest in a professional context do not systematically report them. The reasons for this reticence are multiple and range from lack of knowledge of the reporting options available to fear of reprisals if they speak out. This has damaging consequences for society as a whole, as a wide variety of such attacks on the public interest, whether they concern the environment, the fight against tax evasion or corruption, or public health, continue to occur, thus undermining the public’s right to information.

The Member States have often only amended legislation protecting whistleblowers in the wake of major scandals or disasters. Nevertheless, the recommendations adopted by the Council of Europe in 2014 were a significant step forward in establishing a set of standards that we urge Member States to transpose into their national law.

This proposal draws on these standards as well as European Court of Human Rights case law on freedom of expression. The rapporteur warmly welcomes the Commission’s decision to incorporate its proposal for a directive into the framework of these recommendations, while paying due account to the resolution adopted by the European Parliament on 24 October 2017.

Scope: ensuring the effectiveness of the proposed instrument

The rapporteur agrees that a broad and cross-cutting scope is the correct choice since the instrument will therefore cover a great many sectors ranging from protecting the Union’s financial interests to nuclear safety, environmental protection, public health and the fight against tax evasion. A person shall be considered as a whistleblower if he or she reports or discloses an infringement of a Union act pertaining to one of these sectors, as set out in the Annex to the proposal. However, the risk remains that acts not constituting an infringement within the meaning of the Directive may fall outside its scope. The rapporteur therefore proposes that any wrongdoing pertaining to these sectors should be covered by the Directive. The rapporteur believes that this would be a more effective way of ensuring the public interest is protected, which is at the very heart of this proposal.

Since the European Union is founded on a set of common values and principles that guarantee respect for human rights and fundamental freedoms, the rapporteur considers it necessary to bring these fundamental rights under the scope of the proposal.

Officials and other servants of the European Union may, in the course of their professional activities, be privy to information which could give rise to whistleblowing as defined by this proposal for a Directive and could fall victim to retaliation. It is therefore important that they are granted the same protection as other workers. It is also important to ensure protection for those who assist the reporting person in the process, including investigative journalists.

Reporting channels: acting in the whistleblower’s interest

The rapporteur believes that the reporting channels set out in the proposal for a directive present sufficient safeguards as to robustness and independence. They could, however, be improved by providing for a notification of receipt of a report. The processing deadlines proposed by the Commission also appear to be too long, which could be a hindrance to the reporting procedure, and the rapporteur therefore proposes that they be shortened. The rapporteur also believes that trade union representatives should be actively involved in the design of internal channels and the provision of advice and support to those requesting them. Indeed, workers’ representatives are directly present in the field and best placed to lend to support to potential whistleblowers in the process and to inform them about the internal reporting channels as well as their rights and obligations. It is therefore important for the Directive to afford them this role.

It would also appear essential to ensure that the identity of the reporting person remains confidential. Indeed, people who notice irregularities often end up backsliding and self-censorship mechanisms can kick in as a result of fear that their identity will be revealed. Respect for confidentiality has been shown to increase the number of whistleblower alerts received. The proposal’s provisions in this area should therefore be strengthened in this regard to this question by providing for strong confidentiality requirements which may only be waived in exceptional and circumscribed circumstances.

Ensuring effectiveness of whistleblowing and the right to information

The proposal is underpinned by a relatively strict sequencing concerning the use of reporting channels, with a certain amount of derogations. As a rule, a potential whistleblower should therefore first contact his or employer, wait up to three months for the report to be processed, then, in the event of an unsatisfactory response, contact an external authority and before possibly waiting up to another six months. Not only can this seriously compromise the report itself, but above all it also risks forcing whistleblowers into situations of immediate difficulty with their employers. What is more, this approach places the burden of proof on the whistleblowers to show they have chosen the most appropriate channel in the event that the sequencing provided for in the text is not followed. In the context of a balance of power that is anything but equal, this could well put the reporting personal at risk. Lastly, this approach does not pay enough attention to the public’s right to information in the event of a breach of the public interest. For these reasons, the rapporteur suggests rethinking the multiple tiers of channels by introducing more flexibility in order to leave it up to the reporting person to choose the most appropriate channel to use.

While it is entirely positive that the proposal grants protection to persons who have reasonable grounds to believe that the information reported was true at the time of reporting, the rapporteur believes that further clarification is required on this provision in order to exclude any possibility of reports being refused on grounds related to the whistleblower’s intentions. The proposal’s main focus should be on the relevance of the information disclosed in respect of the public interest, above and beyond the reasons for making the report.

Ensuring effective and comprehensive protection for whistleblowers

The proposal for a directive prohibits retaliation, and lists the forms that this may take. This list can in no way be considered exhaustive, since the imagination of the perpetrator is the only factor limiting the form and extent of any retaliation. It should therefore be made clear that these are only examples.

Some of the forms of protection granted are particularly useful. The reversal of the burden of proof is one such measure and the wording adopted by the proposal for a Directive has been made stronger so to enable the full potential of that provision to be brought to bear.

Anonymous reports have been submitted and will continue to be submitted. The rapporteur therefore wishes to include a provision in the text allowing a person whose identity is revealed although he or she wishes to remain anonymous to be covered by the Directive.

There are a variety of mechanisms to accompany and support whistleblowers in the Member States. These enable, for example, confidential advice on whistleblowing mechanisms to be provided by public authorities, trade unions or civil society organisations. The rapporteur considers such systems to be essential to assist whistleblowers in the process and therefore suggests that the directive could provide for them to be put in place in the various Member States, with due account for differing national circumstances. The rapporteur would also like psychological support and legal and financial assistance to be provided for whistleblowers.

Ensuring sufficient legal certainty to guarantee free speech

Certain aspects of this proposal may dissuade persons wishing to report wrongdoing. This is particularly the case with regard to the degree of seriousness: it can be difficult for an individual to assess this and it is a factor that may be used as grounds to call into question the report. Thus, protection must be guaranteed whatever the seriousness of the information revealed, provided that it pertains to acts prejudicial to the public interest.

Similarly, the proposal for a directive includes provision for sanctions to discourage malicious and abusive whistleblowing. This would appear to be redundant since there are already provisions in national law punishing libel or reputational damage. By establishing additional penalties, the proposal risks having the effect of discouraging or deterring reporting, including wholly legitimate acts of whistleblowing. The rapporteur therefore proposes deleting this part of the text.

The rapporteur sees the proposal as a first step but it raises important questions concerning the issue of extending its scope. She is therefore of the opinion that it should be assessed, and, if necessary, revised without delay in order to make it more cross-cutting in nature and more easily understandable for citizens.


OPINION OF THE COMMITTEE ON LEGAL AFFAIRS ON THE LEGAL BASIS

Mr Pavel Svoboda

Chair

Committee on Legal Affairs

BRUSSELS

Subject:  Opinion on the legal basis for the proposal for a directive of the European Parliament and of the Council on the protection of persons reporting on breaches of Union law (COM(2018)0218 – C8-0159/2018 – 2018/0106(COD))

Dear Mr Chair,

On 24 September 2018, pursuant to Rule 39(5) of the Rules of Procedure, the Committee on Legal Affairs decided of its own motion to provide an opinion on the appropriateness of the additional legal bases introduced by amendments tabled in Committee, which would add provisions of the Treaty on the Functioning of the European Union to the original legal base of the proposal for a directive of the European Parliament and of the Council on the protection of persons reporting on breaches of Union law (“the proposal”).

The Commission based its proposal on several sectorial legal bases. The legal base is expressed as follows:

‘Having regard to the Treaty on the Functioning of the European Union, and in particular Articles 16, 33, 43, 50, 53(1), 62, 91, 100, 103, 109, 114, 168, 169, 192, 207 and 325(4) thereof and to the Treaty establishing the European Atomic Energy Community, and in particular Article 31 thereof,’

Five amendments were tabled suggesting to add Articles 19(2), 77(2), 78, 79, 83(1), 153, 154, 157 and 352 TFEU. In respect of Article 153, two amendments propose to add the full article, while one only to add points (a), (b) and (e) of paragraph 1 of that Article, and another to add only points (a) and (b) of paragraph 1 of Article 153.

The proposed amendments to the legal base are accompanied by corresponding amendments to the scope of application of the proposed directive. Therefore, the final assessment of whether any further legal bases ought to be added to the proposal from the substantive point of view must be assessed on the basis of whether amendments modifying the scope of application are adopted and in the light of aim and content of the proposal as adopted. The current opinion on the legal basis focuses more on the procedural compatibility of the legal bases which are proposed to be added as well as with their compatibility with the measure chosen, i.e. a directive.

I - Background

In its resolution of 24 October 2017 on ‘Legitimate measures to protect whistle-blowers acting in the public interest and its resolution of 20 January 2017 on the role of whistle-blowers in the protection of the EU’s financial interests(1), Parliament called on the Commission to present a horizontal legislative proposal to guarantee a high level of protection for whistle-blowers in the EU, in both the public and private sectors, as well as in national and EU institutions.

Whistle-blower rules exists currently in some areas of Union law, namely in the Staff Regulations and in certain regulations relating to money laundering and financial markets.

The present proposal for a directive follows the sectorial approach in that it provides for whistle-blower rules that are applicable to breaches of Union law in the areas specified in the scope of application and the annex which lists the relevant pieces of Union legislation that are set out directly or by reference.

II - Relevant Treaty articles

Article 19 TFEU reads as follows:

Article 19

1. Without prejudice to the other provisions of the Treaties and within the limits of the powers conferred by them upon the Union, the Council, acting unanimously in accordance with a special legislative procedure and after obtaining the consent of the European Parliament, may take appropriate action to combat discrimination based on sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation.

2. By way of derogation from paragraph 1, the European Parliament and the Council, acting in accordance with the ordinary legislative procedure, may adopt the basic principles of Union incentive measures, excluding any harmonisation of the laws and regulations of the Member States, to support action taken by the Member States in order to contribute to the achievement of the objectives referred to in paragraph 1.

Article 77 TFEU reads as follows:

Article 77

1. The Union shall develop a policy with a view to:

(a) ensuring the absence of any controls on persons, whatever their nationality, when crossing internal borders;

(b) carrying out checks on persons and efficient monitoring of the crossing of external borders;

(c) the gradual introduction of an integrated management system for external borders.

2. For the purposes of paragraph 1, the European Parliament and the Council, acting in accordance with the ordinary legislative procedure, shall adopt measures concerning:

(a) the common policy on visas and other short-stay residence permits;

(b) the checks to which persons crossing external borders are subject;

(c) the conditions under which nationals of third countries shall have the freedom to travel within the Union for a short period;

(d) any measure necessary for the gradual establishment of an integrated management system for external borders;

(e) the absence of any controls on persons, whatever their nationality, when crossing internal borders.

3. If action by the Union should prove necessary to facilitate the exercise of the right referred to in Article 20(2)(a), and if the Treaties have not provided the necessary powers, the Council, acting in accordance with a special legislative procedure, may adopt provisions concerning passports, identity cards, residence permits or any other such document. The Council shall act unanimously after consulting the European Parliament.

4. This Article shall not affect the competence of the Member States concerning the geographical demarcation of their borders, in accordance with international law.

Article 78 TFEU reads as follows:

Article 78

1. The Union shall develop a common policy on asylum, subsidiary protection and temporary protection with a view to offering appropriate status to any third-country national requiring international protection and ensuring compliance with the principle of non-refoulement. This policy must be in accordance with the Geneva Convention of 28 July 1951 and the Protocol of 31 January 1967 relating to the status of refugees, and other relevant treaties.

2. For the purposes of paragraph 1, the European Parliament and the Council, acting in accordance with the ordinary legislative procedure, shall adopt measures for a common European asylum system comprising:

(a) a uniform status of asylum for nationals of third countries, valid throughout the Union;

(b) a uniform status of subsidiary protection for nationals of third countries who, without obtaining European asylum, are in need of international protection;

(c) a common system of temporary protection for displaced persons in the event of a massive inflow;

(d) common procedures for the granting and withdrawing of uniform asylum or subsidiary protection status;

(e) criteria and mechanisms for determining which Member State is responsible for considering an application for asylum or subsidiary protection;

(f) standards concerning the conditions for the reception of applicants for asylum or subsidiary protection;

(g) partnership and cooperation with third countries for the purpose of managing inflows of people applying for asylum or subsidiary or temporary protection.

3. In the event of one or more Member States being confronted by an emergency situation characterised by a sudden inflow of nationals of third countries, the Council, on a proposal from the Commission, may adopt provisional measures for the benefit of the Member State(s) concerned. It shall act after consulting the European Parliament.

Article 79 TFEU reads as follows:

Article 79

1. The Union shall develop a common immigration policy aimed at ensuring, at all stages, the efficient management of migration flows, fair treatment of third-country nationals residing legally in Member States, and the prevention of, and enhanced measures to combat, illegal immigration and trafficking in human beings.

2. For the purposes of paragraph 1, the European Parliament and the Council, acting in accordance with the ordinary legislative procedure, shall adopt measures in the following areas:

(a) the conditions of entry and residence, and standards on the issue by Member States of long-term visas and residence permits, including those for the purpose of family reunification;

(b) the definition of the rights of third-country nationals residing legally in a Member State, including the conditions governing freedom of movement and of residence in other Member States;

(c) illegal immigration and unauthorised residence, including removal and repatriation of persons residing without authorisation;

(d) combating trafficking in persons, in particular women and children.

3. The Union may conclude agreements with third countries for the readmission to their countries of origin or provenance of third-country nationals who do not or who no longer fulfil the conditions for entry, presence or residence in the territory of one of the Member States.

4. The European Parliament and the Council, acting in accordance with the ordinary legislative procedure, may establish measures to provide incentives and support for the action of Member States with a view to promoting the integration of third-country nationals residing legally in their territories, excluding any harmonisation of the laws and regulations of the Member States.

5. This Article shall not affect the right of Member States to determine volumes of admission of third-country nationals coming from third countries to their territory in order to seek work, whether employed or self-employed.

Article 83 TFEU reads as follows:

Article 83

1. The European Parliament and the Council may, by means of directives adopted in accordance with the ordinary legislative procedure, establish minimum rules concerning the definition of criminal offences and sanctions in the areas of particularly serious crime with a cross-border dimension resulting from the nature or impact of such offences or from a special need to combat them on a common basis.

These areas of crime are the following: terrorism, trafficking in human beings and sexual exploitation of women and children, illicit drug trafficking, illicit arms trafficking, money laundering, corruption, counterfeiting of means of payment, computer crime and organised crime.

On the basis of developments in crime, the Council may adopt a decision identifying other areas of crime that meet the criteria specified in this paragraph. It shall act unanimously after obtaining the consent of the European Parliament.

2. If the approximation of criminal laws and regulations of the Member States proves essential to ensure the effective implementation of a Union policy in an area which has been subject to harmonisation measures, directives may establish minimum rules with regard to the definition of criminal offences and sanctions in the area concerned. Such directives shall be adopted by the same ordinary or special legislative procedure as was followed for the adoption of the harmonisation measures in question, without prejudice to Article 76.

3. Where a member of the Council considers that a draft directive as referred to in paragraph 1 or 2 would affect fundamental aspects of its criminal justice system, it may request that the draft directive be referred to the European Council. In that case, the ordinary legislative procedure shall be suspended. After discussion, and in case of a consensus, the European Council shall, within four months of this suspension, refer the draft back to the Council, which shall terminate the suspension of the ordinary legislative procedure.

Within the same timeframe, in case of disagreement, and if at least nine Member States wish to establish enhanced cooperation on the basis of the draft directive concerned, they shall notify the European Parliament, the Council and the Commission accordingly. In such a case, the authorisation to proceed with enhanced cooperation referred to in Article 20(2) of the Treaty on European Union and Article 329(1) of this Treaty shall be deemed to be granted and the provisions on enhanced cooperation shall apply.

Article 153 TFEU reads as follows:

Article 153

1. With a view to achieving the objectives of Article 151, the Union shall support and complement the activities of the Member States in the following fields:

(a) improvement in particular of the working environment to protect workers' health and safety;

(b) working conditions;

(c) social security and social protection of workers;

(d) protection of workers where their employment contract is terminated;

(e) the information and consultation of workers;

(f) representation and collective defence of the interests of workers and employers, including co-determination, subject to paragraph 5;

(g) conditions of employment for third-country nationals legally residing in Union territory;

(h) the integration of persons excluded from the labour market, without prejudice to Article 166;

(i) equality between men and women with regard to labour market opportunities and treatment at work;

(j) the combating of social exclusion;

(k) the modernisation of social protection systems without prejudice to point (c).

2. To this end, the European Parliament and the Council:

(a) may adopt measures designed to encourage cooperation between Member States through initiatives aimed at improving knowledge, developing exchanges of information and best practices, promoting innovative approaches and evaluating experiences, excluding any harmonisation of the laws and regulations of the Member States;

(b) may adopt, in the fields referred to in paragraph 1(a) to (i), by means of directives, minimum requirements for gradual implementation, having regard to the conditions and technical rules obtaining in each of the Member States. Such directives shall avoid imposing administrative, financial and legal constraints in a way which would hold back the creation and development of small and medium-sized undertakings.

The European Parliament and the Council shall act in accordance with the ordinary legislative procedure after consulting the Economic and Social Committee and the Committee of the Regions.

In the fields referred to in paragraph 1(c), (d), (f) and (g), the Council shall act unanimously, in accordance with a special legislative procedure, after consulting the European Parliament and the said Committees.

The Council, acting unanimously on a proposal from the Commission, after consulting the European Parliament, may decide to render the ordinary legislative procedure applicable to paragraph 1(d), (f) and (g).

3. A Member State may entrust management and labour, at their joint request, with the implementation of directives adopted pursuant to paragraph 2, or, where appropriate, with the implementation of a Council decision adopted in accordance with Article 155.

In this case, it shall ensure that, no later than the date on which a directive or a decision must be transposed or implemented, management and labour have introduced the necessary measures by agreement, the Member State concerned being required to take any necessary measure enabling it at any time to be in a position to guarantee the results imposed by that directive or that decision.

4. The provisions adopted pursuant to this Article:

- shall not affect the right of Member States to define the fundamental principles of their social security systems and must not significantly affect the financial equilibrium thereof,

- shall not prevent any Member State from maintaining or introducing more stringent protective measures compatible with the Treaties.

5. The provisions of this Article shall not apply to pay, the right of association, the right to strike or the right to impose lock-outs.

Article 154 TFEU reads as follows:

Article 154

1. The Commission shall have the task of promoting the consultation of management and labour at Union level and shall take any relevant measure to facilitate their dialogue by ensuring balanced support for the parties.

2. To this end, before submitting proposals in the social policy field, the Commission shall consult management and labour on the possible direction of Union action.

3. If, after such consultation, the Commission considers Union action advisable, it shall consult management and labour on the content of the envisaged proposal. Management and labour shall forward to the Commission an opinion or, where appropriate, a recommendation.

4. On the occasion of the consultation referred to in paragraphs 2 and 3, management and labour may inform the Commission of their wish to initiate the process provided for in Article 155. The duration of this process shall not exceed nine months, unless the management and labour concerned and the Commission decide jointly to extend it.

Article 157 TFEU reads as follows:

Article 157

1. Each Member State shall ensure that the principle of equal pay for male and female workers for equal work or work of equal value is applied.

2. For the purpose of this Article, "pay" means the ordinary basic or minimum wage or salary and any other consideration, whether in cash or in kind, which the worker receives directly or indirectly, in respect of his employment, from his employer.

Equal pay without discrimination based on sex means:

(a) that pay for the same work at piece rates shall be calculated on the basis of the same unit of measurement;

(b) that pay for work at time rates shall be the same for the same job.

3. The European Parliament and the Council, acting in accordance with the ordinary legislative procedure, and after consulting the Economic and Social Committee, shall adopt measures to ensure the application of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation, including the principle of equal pay for equal work or work of equal value.

4. With a view to ensuring full equality in practice between men and women in working life, the principle of equal treatment shall not prevent any Member State from maintaining or adopting measures providing for specific advantages in order to make it easier for the underrepresented sex to pursue a vocational activity or to prevent or compensate for disadvantages in professional careers.

Article 352 TFEU reads as follows:

Article 352

1. If action by the Union should prove necessary, within the framework of the policies defined in the Treaties, to attain one of the objectives set out in the Treaties, and the Treaties have not provided the necessary powers, the Council, acting unanimously on a proposal from the Commission and after obtaining the consent of the European Parliament, shall adopt the appropriate measures. Where the measures in question are adopted by the Council in accordance with a special legislative procedure, it shall also act unanimously on a proposal from the Commission and after obtaining the consent of the European Parliament.

2. Using the procedure for monitoring the subsidiarity principle referred to in Article 5(3) of the Treaty on European Union, the Commission shall draw national Parliaments' attention to proposals based on this Article.

3. Measures based on this Article shall not entail harmonisation of Member States' laws or regulations in cases where the Treaties exclude such harmonisation.

4. This Article cannot serve as a basis for attaining objectives pertaining to the common foreign and security policy and any acts adopted pursuant to this Article shall respect the limits set out in Article 40, second paragraph, of the Treaty on European Union.

III - General principle for the choice of legal basis

It is settled case law of the Court of Justice that "the choice of legal basis for a Community measure must rest on objective factors amenable to judicial review, which include in particular the aim and content of the measure"(2). The choice of an incorrect legal basis may therefore justify the annulment of the act in question.

In this case, it therefore has to be established whether the proposal either:

1.  pursues a multiple purpose or has several components, and one of those is identifiable as the main or predominant purpose or component, whereas the others are merely incidental; or

2.  simultaneously pursues a number of objectives or has several components that are indissociably linked, without one being secondary and indirect in relation to the others.

According to the case law of the Court of Justice, in the first case the act must be based on a single legal basis, namely that required by the main or predominant purpose or component, and in the second case the act will have to be founded on the various corresponding legal bases.(3)

Furthermore, following the established case law of the Court of Justice, the combination of several legal bases is possible, if they are indissociably linked, without one being secondary and indirect in relation to the others, but only if they do not entail incompatible decision-making procedures.(4) The legal bases proposed to be added have to be assessed in this light, that is, whether they do provide for the ordinary legislative procedure or are otherwise compatible with the legal base as proposed by the Commission.

IV - Aim and content of the proposal

As the Commission has constructed the legal base of its proposal, each provision mentioned corresponds to relevant parts in the scope of application and in the annex to the proposal. To the extent certain other areas are added to the scope and consequently to the annex, it would be appropriate to align the legal base by adding also the corresponding articles of the Treaty on the Functioning of the European Union to the legal base of the directive.

V - Analysis and determination of the appropriate legal basis

Article 19(2) TFEU, the EU legislature - acting in the ordinary legislative procedure - “may adopt the basic principles of Union incentive measures” to support action taken by Member States in the field of combatting discrimination.

However, such measures cannot entail “harmonisation of the laws and regulations of the Member States”. In this regard it should be pointed out that Article 19 of the proposal provides for a minimum harmonisation: “Member States may introduce or retain provisions more favourable to the rights of the reporting persons than those set out in this Directive”. Therefore, the addition of Article 19(2) TFEU as a legal basis is not advisable.

Under Article 77(2) TFEU, the EU legislature may adopt “measures” in the ordinary legislative procedure in the field of border checks, relating to visas and short-stay residence permits; checks at external borders; freedom of travel for third country nationals; integrated management system of the external borders; and the absence of controls at the internal borders.

This new legal basis seems to be compatible with the proposal from a procedural point of view.

Paragraph (1) of Article 78 TFEU is a general reference to the common asylum policy. Paragraph (3) concerns the adoption of provisional measures in situations of emergency and foresee only the consultation of the European Parliament.

Paragraph (2) of that Article allows for the adoption of “measures” in the ordinary legislative procedure for the common European asylum system, in specific fields such as a uniform status of asylum and subsidiary protection; temporary protection for displaced persons; common procedures for international protection; standards for the conditions of reception; and partnership and cooperation with third countries.

Therefore, it is unnecessary to add Article 78(1) TFEU as a legal basis, while Article 78(3) TFEU is not an appropriate legal basis for the proposal. Adding Article 78(2) TFEU seems to be compatible with the proposal from a procedural point of view.

Article 79 TFEU concerns the common immigration policy. It is important to point out that paragraphs (1) and (5) are not legal bases. Paragraph (3) provides for the conclusion of readmission agreements, so it cannot be the legal basis for the proposed directive. Paragraph (4) concerns the integration of legally residing third-country nationals, but excludes the harmonisation of the laws and regulations of Members States.

Paragraph (2) allows for the adoption of “measures” in the ordinary legislative procedure, such as conditions of entry and residence; rights of legally resident third-country nationals; illegal immigration and unauthorised residence; and combatting trafficking in persons.

Therefore, only the inclusion of Article 79(2) TFEU seems to be possible from a procedural point of view.

While Article 83(1) TFEU provides for the ordinary legislative procedure, its paragraph (3) contains an “emergency brake” provision, according to which one Member State may refer the file to the European Council. In that case the ordinary legislative procedure shall be suspended.

For this reason, the combination of that provision with the other legal bases of the proposal is not possible.

It ought to be noted, that any measures based on Articles 77, 78, 79 and 83 TFEU will only apply to Ireland and the United Kingdom if those Member States opt in pursuant to Protocol No 21, and that, in accordance with Protocol No 22, no such measure will apply to Denmark. The addition of these Articles to the legal base would have no implication on the legislative procedure in Parliament but may result in a possible split of the proposal for the purpose of the procedure in Council as the number of Member States to which different parts of the Directive applies would be different.

Article 153 TFEU was added by amendments 66, 67, 68 and 69. Amendments 67 and 69 add only parts of that Article, namely points (a), (b) and (e). This Article lists specific areas of social policy, where the EU’s action may “support and complement the activities of the Member States”.

The procedure for some categories from this list is not compatible with the proposal, since it requires unanimity. The remaining areas covered by amendments, where the ordinary legislative procedure applies without the unanimity requirement are Article 153(1) TFEU, points a), b), e).

Article 154 TFEU it is not a legal basis for an act of the European Parliament. It contains procedural rules explicitly applicable to the Commission. Thus, it should not be considered to be added.

As regards Article 157 TFEU on the principle of equal pay, paragraph (3) of that Article provides for the adoption of “measures” in the ordinary legislative procedure to “ensure the application of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation, including the principle of equal pay for equal work or work of equal value”.

Thus, Article 157(3) TFEU seems to be procedurally compatible with the proposal.

Finally, Article 352 TFEU, enables the European Union, and in particular the Council, to act if “action by the Union should prove necessary, within the framework of the policies defined in the Treaties, to attain one of the objectives set out in the Treaties”, when they do not provide the necessary powers.

The proposal puts together several sectorial legal bases to construct what may seem as a horizontal instrument but in effect is a bundle of sectorial measures. Article 352 TFEU can be used only in cases where the necessary powers are not provided for by the Treaties. As there are already a number of measures in Union law that provides for whistle-blower rules, this cannot be said to be the case here. Thus recourse to Article 352 TFEU is, by definition, incompatible with the approach chosen by the Commission proposal.

Furthermore, the choice to include Article 352 TFEU is procedurally incompatible with the other legal bases since it requires unanimity in the Council and consent of the Parliament. Therefore, Article 352 TFEU is not an appropriate legal basis for the proposal.

VI - Conclusion and recommendation

The following provisions of the TFEU provide for the ordinary legislative procedure in such a way that is compatible with the existing legal base as proposed by the Commission: Articles 77(2), 78(2), 79(2), 153(1) (a), (b) and (e), and 157(3) TFEU.

With regard to Articles 77, 78 and 79 it ought to be noted that although the addition of these articles would not be incompatible with the procedure in Parliament, their inclusion in the legal base may result in a possible split of the proposal for the purpose of the procedure in Council.

Articles 83(1) and 352 TFEU are not compatible with the applicable ordinary legislative procedure and they ought not to be added as new legal bases. Furthermore, Article 352, which can be used only in cases where necessary powers are not provided for by the Treaties is, by definition, incompatible with the approach chosen by the Commission proposal.

With regard to Article 154 TFEU, it refers to rules applicable to the Commission and does not provide for a legal base of an act of the European Parliament and of the Council. It therefore cannot be added to the legal base.

Finally, addition of Article 19(2) TFEU is not advisable, since harmonisation is not allowed under this provision.

The final choice of legal bases identified as possible additions to the legal base as proposed by the Commission should however depend on the adoption of relevant amendments introducing specific policy areas to the scope of application of the proposed Directive.

At its meeting of 22 October 2018 the Committee on Legal Affairs accordingly decided, unanimously(5), by 18 votes in favour, to recommend the lead Committee to take the conclusions above into consideration when assessing the amendments to the scope of the Directive.

Yours sincerely,

Pavel Svoboda

(1)

2016/2224(INI) http://www.europarl.europa.eu/sides/getDoc.do?pubRef=-//EP//TEXT+TA+P8-TA-2017-0402+0+DOC+XML+V0//EN and (2016/2055(INI) http://www.europarl.europa.eu/sides/getDoc.do?pubRef=-//EP//TEXT+REPORT+A8-2017-0004+0+DOC+XML+V0//EN.

(2)

Case C-45/86, Commission v. Council (Generalised Tariff Preferences) [1987] ECR 1439, para. 5; Case C-440/05 Commission v. Council [2007] E.C.R. I-9097; Case C-411/06 Commission v. Parliament and Council [2009] ECR I-7585.

(3)

See the Case C-411/06, cited above, paras 46-47.

(4)

  Judgments of 6 November 2008 in Parliament v Council, C-155/07, EU:C:2008:605, paragraph 37; and of 3 September 2009 in Parliament v Council, C-166/07, EU:C:2009:499, paragraphs 68 and 69.

(5)

The following were present for the final vote: Pavel Svoboda (Chair), Mady Delvaux (Vice-Chair) Axel Voss (rapporteur for opinion), Max Andersson, Joëlle Bergeron, Marie-Christine Boutonnet, Geoffroy Didier, Pascal Durand, Angel Dzhambazki, Heidi Hautala, Mary Honeyball, Sylvia-Yvonne Kaufmann, Gilles Lebreton, Evelyn Regner, Tiemo Wölken, Francis Zammit Dimech, Tadeusz Zwiefka, Olle Ludvigsson (for Enrico Gasbarra, pursuant to Rule 200(2)).


(*) OPINION of the Committee on Economic and Monetary Affairs (27.9.2018)

for the Committee on Legal Affairs

on the proposal for a directive of the European Parliament and of the Council on the protection of persons reporting on breaches of Union law

(COM(2018)0218 – C8-0159/2018 – 2018/0106(COD))

Rapporteur for opinion (*): Miguel Viegas

(*)  Associated committee – Rule 54 of the Rules of Procedure

SHORT JUSTIFICATION

The ECON draftsperson fully welcomes this proposal from the Commission for an EU-wide protection of whistle-blowers, as the Parliament already requested for a long time, among others in its PANA committee report and the previous JURI INI report, to which ECON contributed.

The proposal also builds upon the sectoral whistle-blowers protection measures which ECON introduced in previous legislation, such as the Anti-Money Laundering Directive (AMLD4-5) and the Market Abuse Regulation (MAR).

In his amendments, the ECON draftsperson aims to

•  improve the definition (Article 3)

•  extend the scope of workers' rights (Article 1)

•  ensure material support (Article 15)

•  delete Recital 21

•  introduce the idea that a whistle-blower cannot replace the operational capacity of state surveillance services

•  introduce a clear mechanism to assign a whistle-blower status for legal certainty

•  introduce the possibility of anonymity

•  facilitate the use of external channels without going through the internal channels

AMENDMENTS

The Committee on Economic and Monetary Affairs calls on the Committee on Legal Affairs, as the committee responsible, to take into account the following amendments:

Amendment    1

Proposal for a directive

Recital 1

Text proposed by the Commission

Amendment

(1)  Persons who work for an organisation or are in contact with it in the context of their work-related activities are often the first to know about threats or harm to the public interest which arise in this context. By ‘blowing the whistle’ they play a key role in exposing and preventing breaches of the law and in safeguarding the welfare of society. However, potential whistleblowers are often discouraged from reporting their concerns or suspicions for fear of retaliation.

(1)  Persons who work for an organisation or are in contact with it in the context of their work-related activities are often the first to know about threats or harm to the public interest which arise in this context. The purpose of this Directive is to create a climate of trust that enables whistleblowers to report observed or suspected breaches of law, wrongdoing and threats to public interest. By ‘blowing the whistle’ they play a key role in exposing and preventing breaches of the law and in safeguarding the welfare of society. However, potential whistleblowers are often discouraged from reporting their concerns or suspicions for fear of retaliation or legal consequences, or due to the lack of confidence in the usefulness of reporting.

Amendment    2

Proposal for a directive

Recital 2

Text proposed by the Commission

Amendment

(2)  At Union level, reports by whistleblowers are one upstream component of enforcement of Union law: they feed national and Union enforcement systems with information leading to effective detection, investigation and prosecution of breaches of Union law.

(2)  At Union level, reports by whistleblowers are one upstream component of enforcement of Union law: they feed national and Union enforcement systems with information often leading to effective detection, investigation and prosecution of breaches of Union law.

Amendment    3

Proposal for a directive

Recital 3

Text proposed by the Commission

Amendment

(3)  In certain policy areas, breaches of Union law may cause serious harm to the public interest, in the sense of creating significant risks for the welfare of society. Where weaknesses of enforcement have been identified in those areas, and whistleblowers are in a privileged position to disclose breaches, it is necessary to enhance enforcement by ensuring effective protection of whistleblowers from retaliation and introducing effective reporting channels.

(3)  Breaches of Union law may cause serious harm to the public interest, in the sense of creating significant risks for the welfare of society. Where weaknesses of enforcement have been identified, and whistleblowers are in a privileged position to disclose such breaches, it is necessary to enhance enforcement by ensuring effective protection of whistleblowers from retaliation and to ensure that there are effective reporting channels.

Amendment    4

Proposal for a directive

Recital 5

Text proposed by the Commission

Amendment

(5)  Accordingly, common minimum standards ensuring effective whistleblower protection should apply in those acts and policy areas where i) there is a need to strengthen enforcement; ii) under-reporting by whistleblowers is a key factor affecting enforcement, and iii) breaches of Union law cause serious harm to the public interest.

(5)  Accordingly, common minimum standards ensuring effective whistleblower protection should only apply in those acts, policy areas and Member States where there is evidence that i) there is a need to strengthen enforcement; ii) under-reporting by whistleblowers is a key factor affecting enforcement, and iii) breaches of Union law cause serious harm to the public interest.

Amendment    5

Proposal for a directive

Recital 6

Text proposed by the Commission

Amendment

(6)  Whistleblower protection is necessary to enhance the enforcement of Union law on public procurement. In addition to the need of preventing and detecting fraud and corruption in the context of the implementation of the EU budget, including procurement, it is necessary to tackle insufficient enforcement of rules on public procurement by national public authorities and certain public utility operators when purchasing goods, works and services. Breaches of such rules create distortions of competition, increase costs for doing business, violate the interests of investors and shareholders and, overall, lower attractiveness for investment and create an uneven level playing field for all businesses across Europe, thus affecting the proper functioning of the internal market.

(6)  Whistleblower protection is necessary to enhance the enforcement of Union law on public procurement. In addition to the need of preventing and detecting fraud and corruption in the context of the implementation of the EU budget, including procurement, it is necessary to tackle insufficient enforcement of rules on public procurement by national public authorities and certain public utility operators when purchasing goods, works and services. Breaches of such rules create distortions of competition, increase costs for doing business, violate the interests of investors and shareholders and, overall, lower attractiveness for investment and create an uneven level playing field for all businesses across Europe, thus affecting the proper functioning of the internal market. Attention must also be paid to protecting those reporting misuse or misconduct regarding the EU budget and EU institutions.

Amendment    6

Proposal for a directive

Recital 6 a (new)

Text proposed by the Commission

Amendment

 

(6a)  A regime for the protection of persons reporting on breaches of Union law does not replace the need to strengthen the means of supervision of each Member State and their public structures, which must be increasingly capable of fighting tax fraud and money laundering, nor the need to participate in international cooperation in those areas.

Amendment    7

Proposal for a directive

Recital 7

Text proposed by the Commission

Amendment

(7)  In the area of financial services, the added value of whistleblower protection was already acknowledged by the Union legislator. In the aftermath of the financial crisis, which exposed serious shortcomings in the enforcement of the relevant rules, measures for the protection of whistleblowers were introduced in a significant number of legislative instruments in this area34 . In particular, in the context of the prudential framework applicable to credit institutions and investment firms, Directive 2013/36/EU35 provides for protection of whistleblowers, which extends also to Regulation (EU) No 575/2013 on prudential requirements for credit institutions and investment firms.

(7)  In the area of financial services, the added value of sectoral whistleblower protection was already acknowledged by the Union legislator. In the aftermath of the financial crisis, which exposed serious shortcomings in the enforcement of the relevant rules, measures for the protection of whistleblowers were introduced in a significant number of legislative instruments in this area34. In particular, in the context of the prudential framework applicable to credit institutions and investment firms, Directive 2013/36/EU35 provides for protection of whistleblowers, which extends also to Regulation (EU) No 575/2013 on prudential requirements for credit institutions and investment firms. However, a number of high profile cases involving European financial institutions have proven, that protection of whistleblowers within the full range of financial institutions still remain unsatisfactory and that fears of reprisals from both employers and authorities still prevent whistleblowers from coming forward with information on breaches of law.

_________________

_________________

34 Communication of 8.12.2010 "Reinforcing sanctioning regimes in the financial services sector".

34 Communication of 8.12.2010 "Reinforcing sanctioning regimes in the financial services sector".

35 Directive 2013/36/EU of the European Parliament and of the Council of 26 June 2013 on access to the activity of credit institutions and the prudential supervision of credit institutions and investment firms, amending Directive 2002/87/EC and repealing Directives 2006/48/EC and 2006/49/EC (OJ L 176, 27.6.2013, p. 338).

35 Directive 2013/36/EU of the European Parliament and of the Council of 26 June 2013 on access to the activity of credit institutions and the prudential supervision of credit institutions and investment firms, amending Directive 2002/87/EC and repealing Directives 2006/48/EC and 2006/49/EC (OJ L 176, 27.6.2013, p. 338).

Amendment    8

Proposal for a directive

Recital 9

Text proposed by the Commission

Amendment

(9)  The importance of whistleblower protection in terms of preventing and deterring breaches of Union rules on transport safety which can endanger human lives has been already acknowledged in sectorial Union instruments on aviation safety38and maritime transport safety39, which provide for tailored measures of protection to whistleblowers as well as specific reporting channels. These instruments also include the protection from retaliation of the workers reporting on their own honest mistakes (so called ‘just culture’). It is necessary to complement the existing elements of whistleblower protection in these two sectors as well as to provide such protection to enhance the enforcement of safety standards for other transport modes, namely road and railway transport.

(9)  The importance of whistleblower protection in terms of preventing and deterring breaches of Union rules on transport safety which can endanger human lives has been already acknowledged in sectorial Union instruments on aviation safety38 and maritime transport safety39, which provide for tailored measures of protection to whistleblowers as well as specific reporting channels. These instruments also include the protection from retaliation of the workers reporting on their own honest mistakes (so called ‘just culture’). It is necessary to complement the existing elements of whistleblower protection in these two sectors as well as to provide such protection to enhance immediately the enforcement of safety standards for other transport modes, namely road and railway transport.

_________________

_________________

38 Regulation (EU) No 376/2014 of the European Parliament and of the Council, of 3 April 2014, on the reporting, analysis and follow-up of occurrences in civil aviation (OJ L 122, p. 18).

38 Regulation (EU) No 376/2014 of the European Parliament and of the Council, of 3 April 2014, on the reporting, analysis and follow-up of occurrences in civil aviation (OJ L 122, p. 18).

39 Directive 2013/54/EU, of the European Parliament and of the Council, of 20 November 2013, concerning certain flag State responsibilities for compliance with and enforcement of the Maritime Labour Convention (OJ L 329, p. 1), Directive 2009/16/EC of the European Parliament and of the Council, of 23 April 2009, on port State control (OJ L 131, p. 57).

39 Directive 2013/54/EU, of the European Parliament and of the Council, of 20 November 2013, concerning certain flag State responsibilities for compliance with and enforcement of the Maritime Labour Convention (OJ L 329, p. 1), Directive 2009/16/EC of the European Parliament and of the Council, of 23 April 2009, on port State control (OJ L 131, p. 57).

Amendment    9

Proposal for a directive

Recital 10

Text proposed by the Commission

Amendment

(10)  Evidence-gathering, detecting and addressing environmental crimes and unlawful conduct against the protection of the environment remain a challenge and need to be reinforced as acknowledged in the Commission Communication "EU actions to improve environmental compliance and governance" of 18 January 201840. Whilst whistleblower protection rules exist at present only in one sectorial instrument on environmental protection41, the introduction of such protection appears necessary to ensure effective enforcement of the Union environmental acquis, whose breaches can cause serious harm to the public interest with possible spill-over impacts across national borders. This is also relevant in cases where unsafe products can cause environmental harm.

(10)  Evidence-gathering, detecting and addressing environmental crimes and unlawful conduct against the protection of the environment unfortunately remain a challenge and need to be reinforced as acknowledged in the Commission Communication "EU actions to improve environmental compliance and governance" of 18 January 201840. Whilst whistleblower protection rules exist at present only in one sectorial instrument on environmental protection41, the introduction of such protection appears necessary to ensure effective enforcement of the Union environmental acquis, whose breaches can cause serious harm to the public interest with possible spill-over impacts across national borders. This is also relevant in cases where unsafe products can cause environmental harm.

_________________

_________________

40 COM(2018) 10 final.

40 COM(2018) 10 final.

41 Directive 2013/30/EU of the European Parliament and of the Council, of 12 June 2013, on safety of offshore oil and gas operations (OJ L 178, p. 66).

41 Directive 2013/30/EU of the European Parliament and of the Council, of 12 June 2013, on safety of offshore oil and gas operations (OJ L 178, p. 66).

Amendment    10

Proposal for a directive

Recital 14

Text proposed by the Commission

Amendment

(14)  The protection of privacy and personal data is another area where whistleblowers are in a privileged position to disclose breaches of Union law which can seriously harm the public interest. Similar considerations apply for breaches of the Directive on the security of network and information systems45, which introduces notification of incidents (including those that do not compromise personal data) and security requirements for entities providing essential services across many sectors (e.g. energy, health, transport, banking, etc.) and providers of key digital services (e.g. cloud computing services). Whistleblowers' reporting in this area is particularly valuable to prevent security incidents that would affect key economic and social activities and widely used digital services. It helps ensuring the continuity of services which are essential for the functioning of the internal market and the wellbeing of society.

(14)  The protection of privacy and personal data is another area where whistleblowers are in a privileged position to disclose breaches of Union law which can seriously harm the public interest. Similar considerations apply for breaches of the Directive on the security of network and information systems45, which introduces notification of incidents (including those that do not compromise personal data) and security requirements for entities providing essential services across many sectors (e.g. energy, health, transport, banking, etc.) and providers of key digital services (e.g. cloud computing services). Whistleblowers' reporting in this area is particularly valuable in order to prevent security incidents that would affect key economic and social activities and widely used digital services. It helps ensuring the continuity of services which are essential for the functioning of the internal market and the wellbeing of society.

_________________

_________________

45 Directive (EU) 2016/1148 of the European Parliament and of the Council of 6 July 2016 concerning measures for a high common level of security of network and information systems across the Union.

45 Directive (EU) 2016/1148 of the European Parliament and of the Council of 6 July 2016 concerning measures for a high common level of security of network and information systems across the Union.

Amendment    11

Proposal for a directive

Recital 18

Text proposed by the Commission

Amendment

(18)  Certain Union acts, in particular in the area of financial services, such as Regulation (EU) No 596/2014 on market abuse49 , and Commission Implementing Directive 2015/2392, adopted on the basis of that Regulation50 , already contain detailed rules on whistleblower protection. Such existing Union legislation, including the list of Part II of the Annex, should be complemented by the present Directive, so that these instruments are fully aligned with its minimum standards whilst maintaining any specificities they provide for, tailored to the relevant sectors. This is of particular importance to ascertain which legal entities in the area of financial services, the prevention of money laundering and terrorist financing are currently obliged to establish internal reporting channels.

(18)  Certain Union acts, in particular in the area of financial services, such as Regulation (EU) No 596/2014 on market abuse49 , and Commission Implementing Directive 2015/2392, adopted on the basis of that Regulation50 , already contain detailed rules on whistleblower protection. Such existing Union legislation, including the list of Part II of the Annex, should be complemented by the present Directive, so that these instruments are fully aligned with its minimum standards whilst maintaining any specificities they provide for, tailored to the relevant sectors. This is of particular importance to ascertain which legal entities in the area of financial services, the prevention of money laundering, the proper implementation of the Late Payments Directive 2011/7/EU, terrorist financing and cyber-crime are currently obliged to establish internal reporting channels. As these cases often involve highly complex international corporate and financial constructions, which are likely to be within the remit of differing jurisdictions, provisions for a unified point of contact for whistleblowers should be adopted.

_________________

_________________

49 OJ L 173, p. 1.

49 OJ L 173, p. 1.

50 Commission Implementing Directive (EU) 2015/2392 of 17 December 2015 on Regulation (EU) No 596/2014 of the European Parliament and of the Council as regards reporting to competent authorities of actual or potential infringements of that Regulation (OJ L 332, p. 126).

50 Commission Implementing Directive (EU) 2015/2392 of 17 December 2015 on Regulation (EU) No 596/2014 of the European Parliament and of the Council as regards reporting to competent authorities of actual or potential infringements of that Regulation (OJ L 332, p. 126).

Amendment    12

Proposal for a directive

Recital 19

Text proposed by the Commission

Amendment

(19)  Each time a new Union act for which whistleblower protection is relevant and can contribute to more effective enforcement is adopted, consideration should be given to whether to amend the Annex to the present Directive in order to place it under its scope.

(19)  Each time a new Union act for which whistleblower protection is relevant and can contribute to more effective enforcement is adopted, the Annex to the present Directive should be amended in order to place it under its scope.

Amendment    13

Proposal for a directive

Recital 20

Text proposed by the Commission

Amendment

(20)  This Directive should be without prejudice to the protection afforded to employees when reporting on breaches of Union employment law. In particular, in the area of occupational safety and health, Article 11 of Framework Directive 89/391/EEC already requires Member States to ensure that workers or workers' representatives shall not be placed at a disadvantage because of their requests or proposals to employers to take appropriate measures to mitigate hazards for workers and/or to remove sources of danger. Workers and their representatives are entitled to raise issues with the competent national authorities if they consider that the measures taken and the means employed by the employer are inadequate for the purposes of ensuring safety and health.

(20)  This Directive should be without prejudice to the protection afforded to employees when reporting on breaches of Union employment law. In particular, in the area of occupational safety and health, Article 11 of Framework Directive 89/391/EEC already requires Member States to ensure that workers or workers' representatives shall not be placed at a disadvantage because of their requests or proposals to employers to take appropriate measures to mitigate hazards for workers and/or to remove sources of danger. Workers and their representatives are entitled to raise issues with the competent national or European Union authorities if they consider that the measures taken and the means employed by the employer are inadequate for the purposes of ensuring safety and health.

Amendment    14

Proposal for a directive

Recital 21

Text proposed by the Commission

Amendment

(21)  This Directive should be without prejudice to the protection of national security and other classified information which Union law or the laws, regulations or administrative provisions in force in the Member State concerned require, for security reasons, to be protected from unauthorised access. In particular, Moreover, the provision of this Directive should not affect the obligations arising from Commission Decision (EU, Euratom) 2015/444 of 13 March 2015 on the security rules for protecting EU classified information or Council Decision of 23 September 2013 on the security rules for protecting EU classified information.

(21)  This Directive should be without prejudice to the protection of national security and other classified information which Union law or the laws, regulations or administrative provisions in force in the Member State concerned require, for security reasons, to be protected from unauthorised access. Moreover, the provision of this Directive should not affect the obligations arising from Commission Decision (EU, Euratom) 2015/444 of 13 March 2015 on the security rules for protecting EU classified information or Council Decision of 23 September 2013 on the security rules for protecting EU classified information.

Amendment    15

Proposal for a directive

Recital 26

Text proposed by the Commission

Amendment

(26)  Protection should, firstly, apply to persons having the status of 'workers', within the meaning of Article 45 TFEU, as interpreted by the Court of Justice of the European Union52 , i.e. persons who, for a certain period of time, perform services for and under the direction of another person, in return of which they receive remuneration. Protection should thus also be granted to workers in non-standard employment relationships, including part-time workers and fixed-term contract workers, as well as persons with a contract of employment or employment relationship with a temporary agency, which are types of relationships where standard protections against unfair treatment are often difficult to apply.

(26)  Protection should, firstly, apply to persons having the status of 'workers', within the meaning of Article 45 TFEU, as interpreted by the Court of Justice of the European Union52 , i.e. persons who, for a certain period of time, perform services for and under the direction of another person, in return of which they receive remuneration. Protection should thus also be granted to workers in non-standard employment relationships, including part-time workers and fixed-term contract workers, as well as persons with a contract of employment or employment relationship with a temporary agency, which are types of relationships where standard protections against unfair treatment are often difficult to apply. Considering the report by Transparency International published in the summer of 2018 underscoring the need for whistleblower protection within EU institutions as well, protection should extend similarly to EU staff.

_________________

_________________

52 Judgments of 3 July 1986, Lawrie-Blum, Case 66/85; 14 October 2010, Union Syndicale Solidaires Isère, Case C-428/09; 9 July 2015, Balkaya, Case C-229/14; 4 December 2014, FNV Kunsten, Case C-413/13; and 17 November 2016, Ruhrlandklinik, Case C-216/15.

52 Judgments of 3 July 1986, Lawrie-Blum, Case 66/85; 14 October 2010, Union Syndicale Solidaires Isère, Case C-428/09; 9 July 2015, Balkaya, Case C-229/14; 4 December 2014, FNV Kunsten, Case C-413/13; and 17 November 2016, Ruhrlandklinik, Case C-216/15.

Amendment    16

Proposal for a directive

Recital 28

Text proposed by the Commission

Amendment

(28)  Effective whistleblower protection implies protecting also further categories of persons who, whilst not relying on their work-related activities economically, may nevertheless suffer retaliation for exposing breaches. Retaliation against volunteers and unpaid trainees may take the form of no longer making use of their services, or of giving a negative reference for future employment or otherwise damaging their reputation.

(28)  Effective whistleblower protection implies protecting also further categories of persons who, whilst not relying on their work-related activities economically, may nevertheless suffer retaliation for exposing breaches. Retaliation against volunteers and unpaid trainees may take the form of no longer making use of their services, or of giving a negative reference for future employment or otherwise damaging their reputation or career prospects.

Amendment    17

Proposal for a directive

Recital 30 a (new)

Text proposed by the Commission

Amendment

 

(30 a)  Protection should be given to individuals working at institutions within the Union, but also to individuals working in European entities located outside Union territory. It should also apply to officials as well as other employees and interns working at the institutions, agencies and bodies of the Union.

Amendment    18

Proposal for a directive

Recital 34

Text proposed by the Commission

Amendment

(34)  It is for the Member States to identify the authorities competent to receive and give appropriate follow up to the reports on breaches falling within the scope of this Directive. These may be regulatory or supervisory bodies in the areas concerned, law enforcement agencies, anti-corruption bodies and ombudsmen. The authorities designated as competent shall have the necessary capacities and powers to assess the accuracy of the allegations made in the report and to address the breaches reported, including by launching an investigation, prosecution or action for recovery of funds, or other appropriate remedial action, in accordance with their mandate.

(34)  It is for the Member States to identify the authorities competent to receive and give appropriate follow up to the reports on breaches falling within the scope of this Directive, to ensure proper implementation and to ensure full, loyal and expeditious cooperation between competent authorities both within the Member State itself and with relevant authorities in other Member States. These may be regulatory or supervisory bodies in the areas concerned, law enforcement agencies, anti-corruption bodies and ombudsmen. The authorities designated as competent shall have, in addition to the necessary capacities and powers, suitably qualified staff to assess the accuracy of the allegations made in the report and to address the breaches reported, including by launching an investigation, prosecution or action for recovery of funds, or other appropriate remedial action, in accordance with their mandate.

Amendment    19

Proposal for a directive

Recital 37

Text proposed by the Commission

Amendment

(37)  For the effective detection and prevention of breaches of Union law it is vital that the relevant information reaches swiftly those closest to the source of the problem, most able to investigate and with powers to remedy it, where possible. This requires that legal entities in the private and the public sector establish appropriate internal procedures for receiving and following-up on reports.

(37)  For the effective detection and prevention of breaches of Union law it is vital that the relevant information reaches swiftly those closest to the source of the problem, most able to investigate and with powers to remedy it, where possible. This requires that legal entities in the private and the public sector establish appropriate internal procedures for receiving, analysing and following-up on reports.

Amendment    20

Proposal for a directive

Recital 39

Text proposed by the Commission

Amendment

(39)  The exemption of small and micro undertakings from the obligation to establish internal reporting channels should not apply to private undertakings active in the area of financial services. Such undertakings should remain obliged to establish internal reporting channels, in line with the current obligations set forth in the Union acquis on financial services.

(39)  The exemption of small and micro undertakings from the obligation to establish internal reporting channels should not apply to private undertakings active in or closely linked to the area of financial services. Such undertakings should remain obliged to establish internal reporting channels, in line with the current obligations set forth in the Union acquis on financial services.

Amendment    21

Proposal for a directive

Recital 57

Text proposed by the Commission

Amendment

(57)  Member States should ensure the adequate record-keeping of all reports of infringement and that every report is retrievable within the competent authority and that information received through reports could be used as evidence in enforcement actions where appropriate.

(57)  Member States should ensure the adequate record-keeping of all reports of infringement and that every report is retrievable within the competent authority and that information received through reports could be used as evidence in enforcement actions where appropriate and made available to other Member States' or European Union authorities where relevant. It remains the responsibility of both the transmitting and receiving authorities to ensure full protection of whisteblowers and to ensure full, loyal and expeditious cooperation.

Amendment    22

Proposal for a directive

Recital 62

Text proposed by the Commission

Amendment

(62)  As a rule, reporting persons should first use the internal channels at their disposal and report to their employer. However, it may be the case that internal channels do not exist (in case of entities which are not under an obligation to establish such channels by virtue of this Directive or applicable national law) or that their use is not mandatory (which may be the case for persons who are not in an employment relationship), or that they were used but did not function properly (for instance the report was not dealt with diligently or within a reasonable timeframe, or no action was taken to address the breach of law despite the positive results of the enquiry).

(62)  Reporting persons should first use the internal channels at their disposal and report to their employer. However, it may be the case that internal channels do not exist (in case of entities which are not under an obligation to establish such channels by virtue of this Directive or applicable national law) or that their use is not mandatory (which may be the case for persons who are not in an employment relationship), or that they were used but did not function properly (for instance the report was not dealt with diligently or within a reasonable timeframe, or no action was taken to address the breach of law despite the positive results of the enquiry).

Amendment    23

Proposal for a directive

Recital 80

Text proposed by the Commission

Amendment

(80)  This Directive introduces minimum standards and Member States should have the power to introduce or maintain more favourable provisions to the reporting person, provided that such provisions do not interfere with the measures for the protection of concerned persons.

(80)  This Directive introduces minimum standards and Member States should have the power and be encouraged to introduce or maintain more favourable provisions to the reporting person, provided that such provisions do not interfere with the measures for the protection of concerned persons.

Amendment    24

Proposal for a directive

Recital 84

Text proposed by the Commission

Amendment

(84)  The objective of this Directive, namely to strengthen enforcement in certain policy areas and acts where breaches of Union law can cause serious harm to the public interest through effective whistleblower protection, cannot be sufficiently achieved by the Member States acting alone or in an uncoordinated manner, but can rather be better achieved by Union action providing minimum standards of harmonisation on whistleblower protection. Moreover, only Union action can provide coherence and align the existing Union rules on whistleblower protection. Therefore, the Union may adopt measures in accordance with the principle of subsidiarity as set out in Article 5 of the Treaty on European Union. In accordance with the principle of proportionality, as set out in that Article, this Directive does not go beyond what is necessary in order to achieve this objective.

(84)  The objective of this Directive, namely to strengthen enforcement in certain policy areas and acts where breaches of Union law can cause harm to the public interest through effective whistleblower protection, cannot be sufficiently achieved by the Member States acting alone or in an uncoordinated manner, but can rather be better achieved by Union action providing minimum standards of harmonisation on whistleblower protection. Moreover, only Union action can provide coherence and align the existing Union rules on whistleblower protection. Therefore, the Union may adopt measures in accordance with the principle of subsidiarity as set out in Article 5 of the Treaty on European Union. In accordance with the principle of proportionality, as set out in that Article, this Directive does not go beyond what is necessary in order to achieve this objective.

Amendment    25

Proposal for a directive

Article 1 – paragraph 1 – introductory part

Text proposed by the Commission

Amendment

1.  With a view to enhancing the enforcement of Union law and policies in specific areas, this Directive lays down common minimum standards for the protection of persons reporting on the following unlawful activities or abuse of law:

1.  With a view to enhancing the enforcement of Union law and policies in specific areas, this Directive lays down common minimum standards for the protection of persons reporting on unlawful activities, abuse of law or threats to the public interest, including:

Amendment    26

Proposal for a directive

Article 1 – paragraph 1 – point a – introductory part

Text proposed by the Commission

Amendment

a)  breaches falling within the scope of the Union acts set out in the Annex (Part I and Part II) as regards the following areas:

a)  breaches falling within the scope of the Union actsin the following areas:

Amendment    27

Proposal for a directive

Article 1 – paragraph 1 – point a – point ii

Text proposed by the Commission

Amendment

(ii)  financial services, prevention of money laundering and terrorist financing;

(ii)  financial services, prevention of tax evasion, tax fraud, tax avoidance, money laundering and terrorist financing, cyber-terrorism and cyber-crime, corruption and organised crime;

Amendment    28

Proposal for a directive

Article 1 – paragraph 1 – point b

Text proposed by the Commission

Amendment

b)  breaches of Articles 101, 102, 106, 107 and 108 TFEU and breaches falling within the scope of Council Regulation (EC) No 1/2003 and Council Regulation (EU) No 2015/1589;

b)  Competition law, especially breaches of Articles 101, 102, 106, 107 and 108 TFEU and breaches falling within the scope of Council Regulation (EC) No 1/2003 and Council Regulation (EU) No 2015/1589;

Amendment    29

Proposal for a directive

Article 1 – paragraph 1 – point d

Text proposed by the Commission

Amendment

d)  breaches relating to the internal market, as referred to in Article 26(2) TFEU, as regards acts which breach the rules of corporate tax or arrangements whose purpose is to obtain a tax advantage that defeats the object or purpose of the applicable corporate tax law.

d)  breaches relating to the internal market, as referred to in Article 26(2) TFEU, particularly as regards acts which breach the rules of corporate tax or arrangements whose purpose is to obtain a tax advantage that defeats the object or purpose of the applicable corporate tax law.

Amendment    30

Proposal for a directive

Article 1 – paragraph 2

Text proposed by the Commission

Amendment

2.  Where specific rules on the reporting of breaches are provided for in sector-specific Union acts listed in Part 2 of the Annex, those rules shall apply. The provisions of this Directive shall be applicable for all matters relating to the protection of reporting persons not regulated in those sector-specific Union acts.

2.  Where higher protection rules on the reporting of breaches are provided for in sector-specific Union acts listed in Part 2 of the Annex, those rules shall apply. The provisions of this Directive shall be applicable for all matters relating to the protection of reporting persons not regulated in those sector-specific Union acts.

Amendment    31

Proposal for a directive

Article 2 – paragraph 1 – introductory part

Text proposed by the Commission

Amendment

1.  This Directive shall apply to reporting persons working in the private or public sector who acquired information on breaches in a work-related context including, at least, the following:

1.  This Directive shall apply to reporting persons and facilitators in the private or public sector who acquired information on breaches including, at least, the following:

Amendment    32

Proposal for a directive

Article 2 – paragraph 1 – point a

Text proposed by the Commission

Amendment

a)  persons having the status of worker, with the meaning of Article 45 TFEU;

a)  persons having the status of worker, with the meaning of Article 45 TFEU, including part-time workers and fixed-term contract workers, as well as persons having the status of civil servants;

Amendment    33

Proposal for a directive

Article 2 – paragraph 1 – point d

Text proposed by the Commission

Amendment

d)  any persons working under the supervision and direction of contractors, subcontractors and suppliers.

d)  any persons working under the supervision and direction of contractors, subcontractors, service providers and suppliers.

Amendment    34

Proposal for a directive

Article 2 – paragraph 1 – point d a (new)

Text proposed by the Commission

Amendment

 

da)  persons facilitating the reporting, such as intermediaries or journalists.

Amendment    35

Proposal for a directive

Article 2 – paragraph 2

Text proposed by the Commission

Amendment

2.  This Directive shall also apply to reporting persons whose work-based relationship is yet to begin in cases where information concerning a breach has been acquired during the recruitment process or other pre-contractual negotiation.

2.  This Directive shall also apply to reporting persons whose work-based relationship is yet to begin in cases where information concerning a breach has been acquired during the recruitment process or other pre-contractual negotiation and to work-based relationships that have terminated.

Amendment    36

Proposal for a directive

Article 2 – paragraph 2 a (new)

Text proposed by the Commission

Amendment

 

2 a.  Without prejudice to Articles 22a, 22b and 22c of Regulation No 31 (EEC), 11 (EAEC), this Directive shall also apply to the officials and the other servants of the European Union and the European Atomic Energy Community who report information on any of the breaches referred to in Article 1.

Amendment    37

Proposal for a directive

Article 3 – paragraph 1 – point 1

Text proposed by the Commission

Amendment

(1)  ‘breaches’ means actual or potential unlawful activities or abuse of law relating to the Union acts and areas falling within the scope referred to in Article 1 and in the Annex;

(1)  ‘breaches’ means actual or potential unlawful activities, omissions or abuse of law relating to the Union acts, in areas falling within the scope referred to in Article 1;

Amendment    38

Proposal for a directive

Article 3 – paragraph 1 – point 3

Text proposed by the Commission

Amendment

(3)  ‘abuse of law’ means acts or omissions falling within the scope of Union law which do not appear to be unlawful in formal terms but defeat the object or the purpose pursued by the applicable rules;

(3)  ‘abuse of law’ means acts or omissions falling within the scope of Union law which do not appear to be unlawful in formal terms but defeat the object or the purpose pursued by the applicable rules or represent a danger to the public interest;

Amendment    39

Proposal for a directive

Article 3 – paragraph 1 – point 4

Text proposed by the Commission

Amendment

(4)  ‘information on breaches’ means evidence about actual breaches as well as reasonable suspicions about potential breaches which have not yet materialised;

(4)  ‘information on breaches’ means evidence about actual breaches as well as suspicions about potential breaches which have not yet materialised;

Amendment    40

Proposal for a directive

Article 3 – paragraph 1 – point 5

Text proposed by the Commission

Amendment

(5)  ‘report’ means the provision of information relating to a breach which has occurred or is likely to occur in the organisation at which the reporting person works or has worked or in another organisation with which he or she is or was in contact through his or her work;

(5)  ‘report’ means the provision of information relating to a breach which has occurred or is likely to occur in the event of a serious, imminent threat or where there is a risk of irreversible damage;

Amendment    41

Proposal for a directive

Article 3 – paragraph 1 – point 8

Text proposed by the Commission

Amendment

(8)  ‘disclosure’ means making information on breaches acquired within the work-related context available to the public domain;

(8)  ‘disclosure’ means making information on breaches available to the public domain;

Amendment    42

Proposal for a directive

Article 3 – paragraph 1 – point 9

Text proposed by the Commission

Amendment

(9)  ‘reporting person’ means a natural or legal person who reports or discloses information on breaches acquired in the context of his or her work-related activities;

(9)  ‘reporting person’ means a natural or legal person who reports or discloses information on breaches or who is at risk of retribution; that includes individuals who are outside the traditional employee-employer relationship, such as consultants, contractors, trainees, interns, volunteers, student workers, temporary workers and former employees;

Amendment    43

Proposal for a directive

Article 3 – paragraph 1 – point 12

Text proposed by the Commission

Amendment

(12)  ‘retaliation’ means any threatened or actual act or omission prompted by the internal or external reporting which occurs in a work-related context and causes or may cause unjustified detriment to the reporting person;

(12)  ‘retaliation’ means any threatened or actual act or omission prompted by the internal, external reporting or disclosure and which causes or may cause unjustified detriment to the reporting person, suspected reporting person or their family members, relatives and facilitators;

Amendment    44

Proposal for a directive

Article 3 – paragraph 1 – point 13

Text proposed by the Commission

Amendment

(13)  ‘follow-up’ means any action taken by the recipient of the report, made internally or externally, to assess the accuracy of the allegations made in the report and, where relevant, to address the breach reported, including actions such as internal enquiry, investigation, prosecution, action for recovery of funds and closure;

(13)  ‘follow-up’ means any action taken by the recipient of the report, made internally or externally, to assess the accuracy of the allegations made in the report and, where relevant, to address the breach reported, including actions such as internal enquiry, investigation, prosecution, action for recovery of funds and closure as well as any other appropriate remedial or mitigation action;

Amendment    45

Proposal for a directive

Article 3 – paragraph 1 – point 14

Text proposed by the Commission

Amendment

(14)  ‘competent authority’ means any national authority entitled to receive reports in accordance with Chapter III and designated to carry out the duties provided for in this Directive, in particular as regards the follow up of reports.

(14)  ‘competent authority’ means any legally responsible Union or Member State authority entitled to receive reports in accordance with Chapter III and designated to carry out the duties provided for in this Directive, in particular as regards the follow up of reports.

Amendment    46

Proposal for a directive

Article 4 – paragraph 1

Text proposed by the Commission

Amendment

1.  Member States shall ensure that legal entities in the private and in the public sector establish internal channels and procedures for reporting and following up on reports, following consultations with social partners, if appropriate.

1.  Member States shall ensure that legal entities in the private and in the public sector establish internal channels and procedures for reporting and following up on reports, following consultations with social partners.

Amendment    47

Proposal for a directive

Article 4 – paragraph 2

Text proposed by the Commission

Amendment

2.  Such channels and procedures shall allow for reporting by employees of the entity. They may allow for reporting by other persons who are in contact with the entity in the context of their work-related activities, referred to in Article 2(1)(b),(c) and (d), but the use of internal channels for reporting shall not be mandatory for these categories of persons.

2.  Such channels and procedures shall allow for reporting by employees of the entity. They shall allow for reporting by other persons who are in contact with the entity in the context of their work-related activities, referred to in Article 2(1)(b),(c) and (d), but the use of internal channels for reporting shall not be mandatory for these categories of persons.

Amendment    48

Proposal for a directive

Article 4 – paragraph 3 – point b

Text proposed by the Commission

Amendment

private legal entities with an annual business turnover or annual balance sheet total of EUR 10 million or more

private legal entities with an annual business or group turnover or annual balance sheet total of EUR 10 million or more

Amendment    49

Proposal for a directive

Article 4 – paragraph 3 – point c

Text proposed by the Commission

Amendment

c)  private legal entities of any size operating in the area of financial services or vulnerable to money laundering or terrorist financing, as regulated under the Union acts referred to in the Annex.

c)  private legal entities of any size operating in the area of financial services or vulnerable to money laundering, terrorist financing or cyber-crime, as regulated under the Union acts referred to in the Annex

Amendment    50

Proposal for a directive

Article 4 – paragraph 6 – point d a (new)

Text proposed by the Commission

Amendment

 

d a)  European Union institutions, agencies and bodies;

Amendment    51

Proposal for a directive

Article 5 – paragraph 1 – point a

Text proposed by the Commission

Amendment

a)  channels for receiving the reports which are designed, set up and operated in a manner that ensures the confidentiality of the identity of the reporting person and prevents access to non-authorised staff members;

a)  channels for receiving the reports which are designed, set up and operated in a manner that ensures an acknowledgement of the receipt of a report, that ensures the confidentiality or anonymity of the identity of the reporting person and prevents access to non-authorised staff members;

Amendment    52

Proposal for a directive

Article 5 – paragraph 1 – point d

Text proposed by the Commission

Amendment

d)  a reasonable timeframe, not exceeding three months following the report, to provide feedback to the reporting person about the follow-up to the report;

d)  a reasonable timeframe, not exceeding three months following the report, to provide substantive feedback to the reporting person about the follow-up to the report;

Amendment    53

Proposal for a directive

Article 5 – paragraph 2 – subparagraph 1 – point a

Text proposed by the Commission

Amendment

(a)  written reports in electronic or paper format and/or oral report through telephone lines, whether recorded or unrecorded;

(a)  written reports in electronic or paper format and/or oral report through telephone lines, whether recorded or unrecorded; in case the phone conversation is recorded, the prior consent of the reporting person is necessary;

Amendment    54

Proposal for a directive

Article 5 – paragraph 2 – subparagraph 1 – point b

Text proposed by the Commission

Amendment

(b)  physical meetings with the person or department designated to receive reports.

(b)  physical meetings with the person or department designated to receive reports accompanied, if the reporting person requests it, by a union representative or his/her legal representative;

Amendment    55

Proposal for a directive

Article 6 – paragraph 2 – point a

Text proposed by the Commission

Amendment

a)  establish independent and autonomous external reporting channels, which are both secure and ensure confidentiality, for receiving and handling information provided by the reporting person;

a)  establish independent and autonomous external reporting channels, which are both secure and ensure confidentiality, for receiving and handling information provided by the reporting person, allow for anonymous reporting and safeguard the whistle-blower personal data;

Amendment    56

Proposal for a directive

Article 6 – paragraph 2 – point a a (new)

Text proposed by the Commission

Amendment

 

(a a)  promote free and independent advice and legal support for reporting persons and intermediaries;

Amendment    57

Proposal for a directive

Article 6 – paragraph 2 – point b

Text proposed by the Commission

Amendment

b)  give feedback to the reporting person about the follow-up of the report within a reasonable timeframe not exceeding three months or six months in duly justified cases;

b)  acknowledge receipt of the report , give feedback to the reporting person about the follow-up of the report within a reasonable timeframe not exceeding three months or six months in duly justified cases;

Amendment    58

Proposal for a directive

Article 6 – paragraph 2 – point c

Text proposed by the Commission

Amendment

c)  transmit the information contained in the report to competent bodies, offices or agencies of the Union, as appropriate, for further investigation, where provided for under national or Union law.

c)  transmit the information contained in the report to competent bodies, offices or agencies of the Union or other Member States, as appropriate, for further investigation.

Amendment    59

Proposal for a directive

Article 6 – paragraph 2 – point c a (new)

Text proposed by the Commission

Amendment

 

c a)  cooperate fully, loyally and expeditiously with other Member States and EU authorities.

Amendment    60

Proposal for a directive

Article 6 – paragraph 3

Text proposed by the Commission

Amendment

3.  Member States shall ensure that competent authorities follow up on the reports by taking the necessary measures and investigate, to the extent appropriate, the subject-matter of the reports. The competent authorities shall communicate to the reporting person the final outcome of the investigations.

3.  Member States shall ensure that competent authorities follow up on the reports by taking the necessary measures and investigate, to the extent appropriate, the subject-matter of the reports. The competent authorities shall communicate to the reporting person and all relevant other Member States and competent EU competent authorities, offices and agencies the final outcome of the investigations.

Amendment    61

Proposal for a directive

Article 6 – paragraph 4

Text proposed by the Commission

Amendment

4.  Member States shall ensure that any authority which has received a report but does not have the competence to address the breach reported transmits it to the competent authority and that the reporting person is informed.

4.  Member States shall ensure that any authority which has received a report but does not have the competence to address the breach reported transmits it to the competent authority and that the reporting person is informed. Member States shall ensure that competent authorities receiving reports they do not have competence to address have clear procedures for handling all disclosed information securely and to confidentiality.

Amendment    62

Proposal for a directive

Article 7 – paragraph 1 – point c a (new)

Text proposed by the Commission

Amendment

 

c a)  they promote free and independent advice and legal support for reporting persons and intermediaries;

Amendment    63

Proposal for a directive

Article 7 – paragraph 2 – point c

Text proposed by the Commission

Amendment

c)  physical meeting with dedicated staff members of the competent authority.

c)  physical meeting with dedicated staff members of the competent authority accompanied, if the reporting person requests it, by a union representative or his/her legal representative, while ensuring confidentiality and anonymity is respected.

Amendment    64

Proposal for a directive

Article 8 – paragraph 1

Text proposed by the Commission

Amendment

1.  Member States shall ensure that competent authorities have staff members dedicated to handling reports. Dedicated staff members shall receive specific training for the purposes of handling reports.

1.  Member States shall ensure that competent authorities have an adequate number of competent staff members dedicated to handling reports. Dedicated staff members shall receive specific training for the purposes of handling reports.

Amendment    65

Proposal for a directive

Article 8 – paragraph 2 – point c

Text proposed by the Commission

Amendment

c)  maintaining contact with the reporting person for the purpose of informing the reporting person of the progress and the outcome of the investigation.

c)  maintaining confidential contact with the reporting person for the purpose of informing the reporting person of the progress and the outcome of the investigation.

Amendment    66

Proposal for a directive

Article 9 – paragraph 1 – point b

Text proposed by the Commission

Amendment

b)  a reasonable timeframe, not exceeding three months or six months in duly justified cases, for giving feed-back to the reporting person about the follow-up of the report and the type and content of this feed-back;

b)  a reasonable timeframe, not exceeding three months or six months in duly justified cases, for giving substantive feed-back to the reporting person about the follow-up of the report and the type and content of this feed-back.

Amendment    67

Proposal for a directive

Article 10 – paragraph 1 – point g a (new)

Text proposed by the Commission

Amendment

 

g a)  contact information of civil society organisations where legal advice can be obtained free of charge.

Amendment    68

Proposal for a directive

Article 13 – paragraph 1

Text proposed by the Commission

Amendment

1.  A reporting person shall qualify for protection under this Directive provided he or she has reasonable grounds to believe that the information reported was true at the time of reporting and that this information falls within the scope of this Directive.

1.  A reporting person shall qualify for protection and be granted the status of a reporting person under this Directive provided he or she has reasonable grounds to believe that the information reported was true at the time of reporting and that this information falls within the scope of this Directive regardless of the reporting channel chosen. Protection extends to those who make inaccurate disclosures in good faith and protection to reporting persons should be in effect while the accuracy of a disclosure is being assessed.

Amendment    69

Proposal for a directive

Article 13 – paragraph 1 a (new)

Text proposed by the Commission

Amendment

 

1 a.  A person who anonymously disclosed information that falls within the scope of this Directive and whose identity was revealed shall also qualify for protection under this Directive.

Amendment    70

Proposal for a directive

Article 13 – paragraph 1 b (new)

Text proposed by the Commission

Amendment

 

1 b.  Member States shall establish clear criteria for granting the rights and protection provided for in this Directive to reporting persons from the moment of reporting.

Amendment    71

Proposal for a directive

Article 13 – paragraph 2

Text proposed by the Commission

Amendment

2.  A person reporting externally shall qualify for protection under this Directive where one of the following conditions is fulfilled :

deleted

a)  he or she first reported internally but no appropriate action was taken in response to the report within the reasonable timeframe referred in Article 5;

 

b)  internal reporting channels were not available for the reporting person or the reporting person could not reasonably be expected to be aware of the availability of such channels;

 

c)  the use of internal reporting channels was not mandatory for the reporting person, in accordance with Article 4(2);

 

d)  he or she could not reasonably be expected to use internal reporting channels in light of the subject-matter of the report;

 

e)  he or she had reasonable grounds to believe that the use of internal reporting channels could jeopardise the effectiveness of investigative actions by competent authorities;

 

f)  he or she was entitled to report directly through the external reporting channels to a competent authority by virtue of Union law.

 

Amendment    72

Proposal for a directive

Article 13 – paragraph 4

Text proposed by the Commission

Amendment

4.  A person publicly disclosing information on breaches falling within the scope of this Directive shall qualify for protection under this Directive where:

deleted

a) he or she first reported internally and/or externally in accordance with Chapters II and III and paragraph 2 of this Article, but no appropriate action was taken in response to the report within the timeframe referred to in Articles 6(2)(b) and 9(1)(b); or

 

b) he or she could not reasonably be expected to use internal and/or external reporting channels due to imminent or manifest danger for the public interest, or to the particular circumstances of the case, or where there is a risk of irreversible damage.

 

Amendment    73

Proposal for a directive

Article 14 – paragraph 1 – point g

Text proposed by the Commission

Amendment

g)  coercion, intimidation, harassment or ostracism at the workplace;

g)  coercion, intimidation, harassment, or ostracism;

Amendment    74

Proposal for a directive

Article 14 a (new)

Text proposed by the Commission

Amendment

 

Article 14 a

 

Support for the reporting person or persons from an independent third party

 

1. Member States may provide for the person reporting or intending to make a report or a public disclosure to be given support in the procedure. Such support shall ensure the identity of the persons referred to in this paragraph remains confidential and may, in particular, take the form of:

 

(a) free, impartial and confidential advice, especially on the scope of this Directive, the reporting channels and the protection granted to the reporting person and the rights of the concerned person;

 

(b) legal advice in the event of a legal dispute;

 

(c) psychological support;

 

2. This support may be provided by an independent administrative authority, trade unions or other organisations representing workers or an accredited body designated by the Member State, provided that it fulfils the following criteria:

 

(a) it is properly constituted according to the law of a Member State;

 

(b) it has a legitimate interest in ensuring compliance with the provisions laid down in this Directive; and

 

(c) it is a not-for-profit entity.

Amendment    75

Proposal for a directive

Article 15 – paragraph 8

Text proposed by the Commission

Amendment

8.  In addition to providing legal aid to reporting persons in criminal and in cross-border civil proceedings in accordance with Directive (EU) 2016/1919 and Directive 2008/52/EC of the European Parliament and of the Council63 , and in accordance with national law, Member States may provide for further measures of legal and financial assistance and support for reporting persons in the framework of legal proceedings.

8.  In addition to providing legal aid to reporting persons in criminal and in cross-border civil proceedings in accordance with Directive (EU) 2016/1919 and Directive 2008/52/EC of the European Parliament and of the Council63 , and in accordance with national law, Member States may decide to provide for further measures of legal and financial assistance and support for reporting persons in the framework of legal proceedings, as well as financial support in cases of temporary loss of income.

__________________

__________________

63 Directive 2008/52/EC of the European Parliament and of the Council of 21 May 2008 on certain aspects of mediation in civil and commercial matters (OJ L 136, 24.5.2008, p. 3).

63 Directive 2008/52/EC of the European Parliament and of the Council of 21 May 2008 on certain aspects of mediation in civil and commercial matters (OJ L 136, 24.5.2008, p. 3).

Amendment    76

Proposal for a directive

Article 15 a (new)

Text proposed by the Commission

Amendment

 

Article 15 a

 

Duty to preserve the confidentiality of the identity of the reporting person

 

1. The identity of the reporting person or persons may not be disclosed without their express consent. This duty of confidentiality also includes information which may be used to identify the reporting person.

 

2. A person who possesses or obtains the information referred to in paragraph 1 shall be duty-bound not to disclose it.

 

3. The circumstances in which, by way of derogation from paragraph 2, information germane to the identity of the reporting person may be disclosed shall be limited to exceptional cases where disclosure of such information is a necessary and proportionate obligation required by Union or national law in the context of subsequent investigations or judicial proceedings or to safeguard the freedoms of others including the right of defence of the concerned person, and in each case subject to appropriate safeguards under such laws. In such cases appropriate and effective steps must be taken to ensure the safety and well-being of the reporting person or persons.

 

4. In the cases referred to in paragraph 3, the person designated to receive the report shall inform the reporting person in due time before disclosing his or her identity and consult with them on other possible alternative courses of action.

 

5. The internal and external reporting channels shall be designed in such a way as to ensure the identity of the reporting person remains confidential and to prevent access by non-authorised persons. Information shall be kept on which staff members have accessed confidential information, including time and dates of such access.

Amendment    77

Proposal for a directive

Article 17 – paragraph 1 – point d

Text proposed by the Commission

Amendment

d)  breach the duty of maintaining the confidentiality of the identity of reporting persons.

d)  breach the duty of maintaining the confidentiality or the anonymity of the identity of reporting persons.

Amendment    78

Proposal for a directive

Article 17 – paragraph 1 – point d a (new)

Text proposed by the Commission

Amendment

 

d a)  repeat the infringement reported by the reporting person once the case is closed.

Amendment    79

Proposal for a directive

Article 17 – paragraph 2

Text proposed by the Commission

Amendment

2.  Member States shall provide for effective, proportionate and dissuasive penalties applicable to persons making malicious or abusive reports or disclosures, including measures for compensating persons who have suffered damage from malicious or abusive reports or disclosures.

2.  Member States shall provide for effective, proportionate and dissuasive penalties applicable to persons making malicious or abusive reports or disclosures.

Amendment    80

Proposal for a directive

Article 17 a (new)

Text proposed by the Commission

Amendment

 

Article 17 a

 

Obligation to cooperate

 

1. Member States' authorities who are made aware of breaches of Union law, as covered by this directive, are obliged to expeditiously inform all other relevant Member States' authorities and/or EU offices and agencies and to cooperate with these in a loyal, effective and expeditious manner.

 

2. Member States' authorities who are notified by other Member States' authorities of potential breaches of union law, as covered by this directive, are required to provide a substantive response on actions taken in connection with said notification as well as an official notification of receipt and a point of contact for further cooperation.

 

3. Member States' authorities are obliged to safeguard confidential information received, especially as related to the identity and other personal information of reporting persons.

 

4. Member States' authorities are obliged to provide confidential access to the information received from reporting persons and to facilitate requests for further information in a timely manner.

 

5. Member States' authorities are obliged to share all relevant information with other competent Member States authorities pertaining to breaches of Union or national law in international cases and to do so in a timely manner.

Amendment    81

Proposal for a directive

Article 17 b (new)

Text proposed by the Commission

Amendment

 

Article 17 b

 

No Waiver of Rights and Remedies

 

The rights and remedies provided for under this Directive may not be waived or limited by any agreement, policy, form or condition of employment, including by any pre-dispute arbitration agreement. Any attempt to waive or limit these rights and remedies shall be considered void and unenforceable.

Amendment    82

Proposal for a directive

Article 20 – paragraph 2 a (new)

Text proposed by the Commission

Amendment

 

2 a.  When transposing this directive, Member States may consider the establishment of an independent whistleblower protection authority.

Amendment    83

Proposal for a directive

Article 22 a (new)

Text proposed by the Commission

Amendment

 

Article 22 a

 

Updating the Annexes

 

Whenever a new EU legal act falls into the material scope laid down in Article 1 (1) (a) or Article 1 (2), the Commission shall update the Annexes accordingly via a delegated act. 

PROCEDURE – COMMITTEE ASKED FOR OPINION

Title

Protection of persons reporting on breaches of Union law

References

COM(2018)0218 – C8-0159/2018 – 2018/0106(COD)

Committee responsible

       Date announced in plenary

JURI

28.5.2018

 

 

 

Opinion by

       Date announced in plenary

ECON

28.5.2018

Rapporteur

       Date appointed

Miguel Viegas

31.5.2018

Discussed in committee

29.8.2018

24.9.2018

 

 

Date adopted

24.9.2018

 

 

 

Result of final vote

+:

–:

0:

24

15

7

Members present for the final vote

Pervenche Berès, Markus Ferber, Jonás Fernández, Giuseppe Ferrandino, Sven Giegold, Roberto Gualtieri, Brian Hayes, Gunnar Hökmark, Barbara Kappel, Philippe Lamberts, Werner Langen, Sander Loones, Bernd Lucke, Olle Ludvigsson, Ivana Maletić, Marisa Matias, Gabriel Mato, Bernard Monot, Luděk Niedermayer, Stanisław Ożóg, Pirkko Ruohonen-Lerner, Anne Sander, Martin Schirdewan, Pedro Silva Pereira, Ernest Urtasun, Marco Valli, Tom Vandenkendelaere, Miguel Viegas, Steven Woolfe, Marco Zanni, Esther de Lange

Substitutes present for the final vote

Doru-Claudian Frunzulică, Ramón Jáuregui Atondo, Rina Ronja Kari, Jeppe Kofod, Marcus Pretzell, Michel Reimon, Romana Tomc, Lieve Wierinck, Roberts Zīle, Sophia in ‘t Veld

Substitutes under Rule 200(2) present for the final vote

Edouard Martin, Julia Pitera, Virginie Rozière, Sabine Verheyen, Anna Záborská

FINAL VOTE BY ROLL CALL IN COMMITTEE ASKED FOR OPINION

24

+

ECR

Pirkko Ruohonen-Lerner

EFDD

Bernard Monot, Marco Valli

GUE/NGL

Rina Ronja Kari, Marisa Matias, Martin Schirdewan, Miguel Viegas

PPE

Anne Sander, Tom Vandenkendelaere

S&D

Pervenche Berès, Jonás Fernández, Giuseppe Ferrandino, Doru-Claudian Frunzulică, Roberto Gualtieri, Ramón Jáuregui Atondo, Jeppe Kofod, Olle Ludvigsson, Edouard Martin, Virginie Rozière, Pedro Silva Pereira

Verts/ALE

Sven Giegold, Philippe Lamberts, Michel Reimon, Ernest Urtasun

15

-

ECR

Sander Loones

ENF

Barbara Kappel, Marcus Pretzell

NI

Steven Woolfe

PPE

Markus Ferber, Brian Hayes, Gunnar Hökmark, Werner Langen, Ivana Maletić, Gabriel Mato, Luděk Niedermayer, Julia Pitera, Romana Tomc, Sabine Verheyen, Anna Záborská

7

0

ALDE

Lieve Wierinck, Sophia in 't Veld

ECR

Bernd Lucke, Stanisław Ożóg, Roberts Zīle

ENF

Marco Zanni

PPE

Esther de Lange

Key to symbols:

+  :  in favour

-  :  against

0  :  abstention


(*) OPINION of the Committee on Civil Liberties, Justice and Home Affairs (8.11.2018)

for the Committee on Legal Affairs

on the proposal for a directive of the European Parliament and of the Council on the protection of persons reporting on breaches of Union law

(COM(2018)0218 – C8-0159/2018 – 2018/0106(COD))

Rapporteur for opinion (*): Maite Pagazaurtundúa Ruiz

(*)  Associated committee – Rule 54 of the Rules of Procedure

AMENDMENTS

The Committee on Civil Liberties, Justice and Home Affairs calls on the Committee on Legal Affairs, as the committee responsible, to take into account the following amendments:

Amendment    1

Proposal for a directive

Citation 1

Text proposed by the Commission

Amendment

Having regard to the Treaty on the Functioning of the European Union, and in particular Articles 16, 33, 43, 50, 53(1), 62, 91, 100, 103, 109, 114, 168, 169, 192, 207 and 325(4) thereof and to the Treaty establishing the European Atomic Energy Community, and in particular Article 31 thereof,

Having regard to the Treaty on the Functioning of the European Union, and in particular Articles 9, 10, 11, 12, 15, 16, 33, 43, 50, 53(1), 62, 91, 100, 103, 109, 114, 168, 169, 192, 207, 325(4) and 352 thereof and to the Treaty establishing the European Atomic Energy Community, and in particular Article 31 thereof,

Amendment    2

Proposal for a directive

Citation 6 a (new)

Text proposed by the Commission

Amendment

 

Having regard to the Charter of Fundamental Rights of the European Union,

Amendment    3

Proposal for a directive

Citation 6 b (new)

Text proposed by the Commission

Amendment

 

Having regard to the European Parliament resolution of 14 February 2017 on the role of whistleblowers in the protection of EU’s financial interests,

Amendment    4

Proposal for a directive

Citation 6 c (new)

Text proposed by the Commission

Amendment

 

Having regard to the European Parliament resolution of 24 October 2017 on legitimate measures to protect whistle-blowers acting in the public interest when disclosing the confidential information of companies and public bodies,

Amendment    5

Proposal for a directive

Citation 6 d (new)

Text proposed by the Commission

Amendment

 

Having regard to the European Convention on Human Rights,

Amendment    6

Proposal for a directive

Recital 1

Text proposed by the Commission

Amendment

(1)  Persons who work for an organisation or are in contact with it in the context of their work-related activities are often the first to know about threats or harm to the public interest which arise in this context. By ‘blowing the whistle’ they play a key role in exposing and preventing breaches of the law and in safeguarding the welfare of society. However, potential whistleblowers are often discouraged from reporting their concerns or suspicions for fear of retaliation.

(1)  Persons who work or have worked for an organisation or are or were in contact with it are often the first to know about threats, criminal or illegal activities or harm to the public interest which arise in this context. By ‘blowing the whistle’ they play a key role in exposing and preventing breaches of the law in safeguarding the welfare of society and in protecting fundamental right, including freedom of expression and information. Whistleblowers play a crucial role in unveiling wrongdoing or unethical and dishonest conduct to the public interest. It is often difficult for them to assess the lawfulness of facts, but according to the European Court of Human Rights the legal assessment is not the task of the whistleblowers, as long as they act in good faith and the facts are correct. However, potential whistleblowers are often discouraged from reporting their concerns or suspicions for fear of retaliation, when they expose irregularities, mismanagement, misuse of funds, maladministration or potential corruption related to the activity of public and private bodies within the Union; they are not truly protected and do not feel protected.

Amendment    7

Proposal for a directive

Recital 2

Text proposed by the Commission

Amendment

(2)  At Union level, reports by whistleblowers are one upstream component of enforcement of Union law: they feed national and Union enforcement systems with information leading to effective detection, investigation and prosecution of breaches of Union law.

(2)  At Union level, reports by whistleblowers and investigative journalists are one upstream component of enforcement of Union law: they feed national and Union enforcement systems with information leading to effective detection, investigation and prosecution of breaches of Union law.

Amendment    8

Proposal for a directive

Recital 3

Text proposed by the Commission

Amendment

(3)  In certain policy areas, breaches of Union law may cause serious harm to the public interest, in the sense of creating significant risks for the welfare of society. Where weaknesses of enforcement have been identified in those areas, and whistleblowers are in a privileged position to disclose breaches, it is necessary to enhance enforcement by ensuring effective protection of whistleblowers from retaliation and introducing effective reporting channels.

(3)  Breaches of Union law may cause serious harm to the public interest and the enjoyment of human rights and fundamental freedoms. It is necessary to ensure effective protection of whistleblowers from retaliation and introduce effective and confidential reporting channels.

Amendment    9

Proposal for a directive

Recital 4

Text proposed by the Commission

Amendment

(4)  Whistleblower protection currently provided in the European Union is fragmented across Member States and uneven across policy areas. The consequences of breaches of Union law with cross-border dimension uncovered by whistleblowers illustrate how insufficient protection in one Member State not only negatively impacts on the functioning of EU policies in that Member State but can also spill over into other Member States and the Union as a whole.

(4)  Whistleblower protection currently provided in the European Union is fragmented across Member States and uneven across policy areas. Whistleblowers shall be protected if they disclose breaches of law or wrongdoing or misconduct in the public interest. Insufficient protection in one Member State not only negatively impacts on the functioning of EU policies in that Member State but can also spill over into other Member States and the Union as a whole.

Amendment    10

Proposal for a directive

Recital 5

Text proposed by the Commission

Amendment

(5)  Accordingly, common minimum standards ensuring effective whistleblower protection should apply in those acts and policy areas where i) there is a need to strengthen enforcement; ii) under-reporting by whistleblowers is a key factor affecting enforcement, and iii) breaches of Union law cause serious harm to the public interest.

(5)  Accordingly, common minimum legal standards ensuring effective whistleblower protection with a general and comprehensive approach should apply in all Union and national acts and policy areas where i) there is a need to strengthen enforcement; ii) under-reporting by whistleblowers is a key factor affecting enforcement, and iii) breaches of Union or national law cause serious harm to the public interest.

Amendment    11

Proposal for a directive

Recital 9

Text proposed by the Commission

Amendment

(9)  The importance of whistleblower protection in terms of preventing and deterring breaches of Union rules on transport safety which can endanger human lives has been already acknowledged in sectorial Union instruments on aviation safety38 and maritime transport safety39 , which provide for tailored measures of protection to whistleblowers as well as specific reporting channels. These instruments also include the protection from retaliation of the workers reporting on their own honest mistakes (so called ‘just culture’). It is necessary to complement the existing elements of whistleblower protection in these two sectors as well as to provide such protection to enhance the enforcement of safety standards for other transport modes, namely road and railway transport.

(9)  The importance of whistleblower protection in terms of preventing and deterring breaches of Union rules on transport safety which can endanger human lives has been already acknowledged in sectorial Union instruments on aviation safety38 and maritime transport safety39 , which provide for tailored measures of protection to whistleblowers as well as specific reporting channels. These instruments also include the protection from retaliation of the workers reporting on their own honest mistakes (so called ‘just culture’). Inter alia it is necessary to complement the existing elements of whistleblower protection in these two sectors as well as to provide such protection to enhance the enforcement of safety standards for other transport modes, namely road and railway transport.

_________________

_________________

38 Regulation (EU) No 376/2014 of the European Parliament and of the Council, of 3 April 2014, on the reporting, analysis and follow-up of occurrences in civil aviation (OJ L 122, p. 18).

38 Regulation (EU) No 376/2014 of the European Parliament and of the Council, of 3 April 2014, on the reporting, analysis and follow-up of occurrences in civil aviation (OJ L 122, p. 18).

39 Directive 2013/54/EU, of the European Parliament and of the Council, of 20 November 2013, concerning certain flag State responsibilities for compliance with and enforcement of the Maritime Labour Convention (OJ L 329, p. 1), Directive 2009/16/EC of the European Parliament and of the Council, of 23 April 2009, on port State control (OJ L 131, p. 57).

39 Directive 2013/54/EU, of the European Parliament and of the Council, of 20 November 2013, concerning certain flag State responsibilities for compliance with and enforcement of the Maritime Labour Convention (OJ L 329, p. 1), Directive 2009/16/EC of the European Parliament and of the Council, of 23 April 2009, on port State control (OJ L 131, p. 57).

Amendment    12

Proposal for a directive

Recital 14

Text proposed by the Commission

Amendment

(14)  The protection of privacy and personal data is another area where whistleblowers are in a privileged position to disclose breaches of Union law which can seriously harm the public interest. Similar considerations apply for breaches of the Directive on the security of network and information systems45 , which introduces notification of incidents (including those that do not compromise personal data) and security requirements for entities providing essential services across many sectors (e.g. energy, health, transport, banking, etc.) and providers of key digital services (e.g. cloud computing services). Whistleblowers' reporting in this area is particularly valuable to prevent security incidents that would affect key economic and social activities and widely used digital services. It helps ensuring the continuity of services which are essential for the functioning of the internal market and the wellbeing of society.

(14)  The protection of privacy and personal data, enshrined in articles 7 and 8 of the Charter of Fundamental Rights and article 8 of the European Convention on Human Rights (ECHR), is another area where whistleblowers are in a privileged position to disclose breaches of Union law which can harm the public interest. Similar considerations apply for breaches of the Directive on the security of network and information systems45, which introduces notification of incidents (including those that do not compromise personal data) and security requirements for entities providing essential services across many sectors (e.g. energy, health, transport, banking, etc.) and providers of key digital services. Whistleblowers' reporting in this area is particularly valuable to prevent security incidents that would affect key economic and social activities and widely used digital services, as well as to prevent any infringement of the Union data protection legislation. It helps ensuring the continuity of services which are essential for society.

__________________

__________________

45 Directive (EU) 2016/1148 of the European Parliament and of the Council of 6 July 2016 concerning measures for a high common level of security of network and information systems across the Union.

45 Directive (EU) 2016/1148 of the European Parliament and of the Council of 6 July 2016 concerning measures for a high common level of security of network and information systems across the Union.

Amendment    13

Proposal for a directive

Recital 16

Text proposed by the Commission

Amendment

(16)  The protection of the financial interests of the Union, which relates to the fight against fraud, corruption and any other illegal activity affecting the use of Union expenditures, the collection of Union revenues and funds or Union assets, is a core area in which enforcement of Union law needs to be strengthened. The strengthening of the protection of the financial interests of the Union also encompasses implementation of the Union budget related to expenditures made on the basis of the Treaty establishing the European Atomic Energy Community. Lack of effective enforcement in the area of the financial interests of the Union, including fraud and corruption at national level, causes a decrease of the Union revenues and a misuse of EU funds, which can distort public investments and growth and undermine citizens’ trust in EU action. Whistleblower protection is necessary to facilitate the detection, prevention and deterrence of relevant fraud and illegal activities.

(16)  The protection of the financial interests of the Union, which relates to the fight against fraud, corruption and any other illegal activity affecting the use of Union expenditures, the collection of Union revenues and funds or Union assets, is a core area in which enforcement of Union law needs to be strengthened. The strengthening of the protection of the financial interests of the Union also encompasses implementation of the Union budget related to expenditures made on the basis of the Treaty establishing the European Atomic Energy Community. Lack of effective enforcement in the area of the financial interests of the Union, including fraud and corruption at national level, causes a decrease of the Union revenues and a misuse of EU funds, which can distort public investments and growth and undermine citizens’ trust in EU action.

Investigative journalists also play a crucial role in revealing wrongdoing connected to all these areas; they represent a very exposed group of professionals, often paying with their jobs, freedom and even with their lives disclosure of massive irregularities and corruption schemes; therefore, special measures to protect investigative journalists should be included in a horizontal legislative proposal for the protection of whistle-blowers. Investigative journalism and whistleblower protection are necessary to facilitate the detection, prevention and deterrence of relevant fraud and illegal activities.

Amendment    14

Proposal for a directive

Recital 18 a (new)

Text proposed by the Commission

Amendment

 

(18a)  Whistleblowers who report misconduct and violations of labour and social law are key to ensuring safe and just workplaces. Breaches of rules in an organisation that are reported by persons who work or worked there or by persons who were in contact with it, shall be ensured full protection under this regulation.

Amendment    15

Proposal for a directive

Recital 19

Text proposed by the Commission

Amendment

(19)  Each time a new Union act for which whistleblower protection is relevant and can contribute to more effective enforcement is adopted, consideration should be given to whether to amend the Annex to the present Directive in order to place it under its scope.

(19)  Each time a new Union act for which whistleblower protection is relevant and can contribute to more effective enforcement is adopted, it should be added to the Annex to the present Directive in order to place it under its scope.

Amendment    16

Proposal for a directive

Recital 20

Text proposed by the Commission

Amendment

(20)  This Directive should be without prejudice to the protection afforded to employees when reporting on breaches of Union employment law. In particular, in the area of occupational safety and health, Article 11 of Framework Directive 89/391/EEC already requires Member States to ensure that workers or workers' representatives shall not be placed at a disadvantage because of their requests or proposals to employers to take appropriate measures to mitigate hazards for workers and/or to remove sources of danger. Workers and their representatives are entitled to raise issues with the competent national authorities if they consider that the measures taken and the means employed by the employer are inadequate for the purposes of ensuring safety and health.

(20)  This Directive should be without prejudice to the protection afforded to employees when reporting on misconduct or wrongdoing or on breaches of Union as well as national law. In particular, in the area of occupational safety and health, Article 11 of Framework Directive 89/391/EEC already requires Member States to ensure that workers or workers' representatives shall not be placed at a disadvantage because of their requests or proposals to employers to take appropriate measures to mitigate hazards for workers and/or to remove sources of danger. Workers and their representatives are entitled to raise issues with the competent national authorities if they consider that the measures taken and the means employed by the employer are inadequate for the purposes of ensuring safety and health.

Amendment    17

Proposal for a directive

Recital 21

Text proposed by the Commission

Amendment

(21)  This Directive should be without prejudice to the protection of national security and other classified information which Union law or the laws, regulations or administrative provisions in force in the Member State concerned require, for security reasons, to be protected from unauthorised access. In particular, Moreover, the provision of this Directive should not affect the obligations arising from Commission Decision (EU, Euratom) 2015/444 of 13 March 2015 on the security rules for protecting EU classified information or Council Decision of 23 September 2013 on the security rules for protecting EU classified information.

(21)  This Directive should be without prejudice to the protection of national security and other classified information which Union law or the laws, regulations or administrative provisions in force in the Member State concerned require, for security reasons, to be protected from unauthorised access. Limitations on the use of national security information should be limited and clearly defined. Moreover, the provision of this Directive should not affect the obligations arising from Commission Decision (EU, Euratom) 2015/444 of 13 March 2015 on the security rules for protecting EU classified information or Council Decision of 23 September 2013 on the security rules for protecting EU classified information.

Amendment    18

Proposal for a directive

Recital 22

Text proposed by the Commission

Amendment

(22)  Persons who report information about threats or harm to the public interest obtained in the context of their work-related activities make use of their right to freedom of expression. The right to freedom of expression, enshrined in Article 11 of the Charter of Fundamental Rights of the European Union (‘the Charter’) and in Article 10 of the European Convention on Human Rights (ECHR), encompasses media freedom and pluralism.

(22)  Persons who report information about threats or harm to the public interest make use of their right to freedom of expression. Freedom of expression, which is essential in a democratic society and is enshrined in Article 11 of the Charter of Fundamental Rights of the European Union (‘the Charter’) and in Article 10 of the European Convention on Human Rights (ECHR), encompasses media freedom and pluralism.

Amendment    19

Proposal for a directive

Recital 23

Text proposed by the Commission

Amendment

(23)  Accordingly, this Directive draws upon the case law of the European Court of Human Rights on the right to freedom of expression, and the principles developed on this basis by the Council of Europe in its 2014 Recommendation on Protection of Whistleblowers51 .

(23)  Accordingly, this Directive draws upon the case law of the European Court of Human Rights on the right to freedom of expression, and in particular its judgment of 12 February 2008 in the case of Guja v. Moldova, and the principles developed on this basis by the Council of Europe in its 2014 Recommendation on Protection of Whistleblowers51.

__________________

__________________

51 CM/Rec(2014)7.

51 CM/Rec(2014)7.

 

 

Amendment    20

Proposal for a directive

Recital 24

Text proposed by the Commission

Amendment

(24)  Persons need specific legal protection where they acquire the information they report through their work-related activities and therefore run the risk of work-related retaliation (for instance, for breaching the duty of confidentiality or loyalty). The underlying reason for providing them with protection is their position of economic vulnerability vis-à-vis the person on whom they de facto depend for work. When there is no such work-related power imbalance (for instance in the case of ordinary complainants or citizen bystanders) there is no need for protection against retaliation.

(24)  Persons need specific legal protection where they acquire the information they report through their work-related activities and therefore run the risk of work-related retaliation. The underlying reason for providing them with protection is their position of vulnerability vis-à-vis the person on whom they de facto depend for work. No employment relationship should restrict someone’s right to freedom of expression.

Amendment    21

Proposal for a directive

Recital 25

Text proposed by the Commission

Amendment

(25)  Effective enforcement of Union law requires that protection is granted to the broadest possible range of categories of persons, who, irrespective of whether they are EU citizens or third-country nationals, by virtue of work-related activities (irrespective of the nature of these activities,whether they are paid or not), have privileged access to information about breaches that would be in the public’s interest to report and who may suffer retaliation if they report them. Member States should ensure that the need for protection is determined by reference to all the relevant circumstances and not merely by reference to the nature of the relationship, so as to cover the whole range of persons connected in a broad sense to the organisation where the breach has occurred.

(25)  Effective enforcement of Union law requires that protection is granted to the broadest possible range of categories of persons, who, irrespective of whether they are EU citizens or third-country nationals, by virtue of their activities (irrespective of the nature of these activities, whether they are paid or not), have privileged access to information about breaches that would be in the public’s interest to report and who may suffer retaliation if they report them. Member States should ensure that the need for protection is determined by reference to all the relevant circumstances and not merely by reference to the nature of the relationship, so as to cover the whole range of persons connected in a broad sense to the organisation where the breach has occurred.

Amendment    22

Proposal for a directive

Recital 26

Text proposed by the Commission

Amendment

(26)  Protection should, firstly, apply to persons having the status of 'workers', within the meaning of Article 45 TFEU, as interpreted by the Court of Justice of the European Union52 , i.e. persons who, for a certain period of time, perform services for and under the direction of another person, in return of which they receive remuneration. Protection should thus also be granted to workers in non-standard employment relationships, including part-time workers and fixed-term contract workers, as well as persons with a contract of employment or employment relationship with a temporary agency, which are types of relationships where standard protections against unfair treatment are often difficult to apply.

(26)  Protection should, firstly, apply to persons having the status of 'workers', within the meaning of Article 45 TFEU, as interpreted by the Court of Justice of the European Union52 , i.e. persons who, for a certain period of time, perform services for and under the direction of another person, in return of which they receive remuneration, including public and civil servants. Protection should thus also be granted to workers in non-standard employment relationships, including part-time workers and fixed-term contract workers, as well as persons with a contract of employment or employment relationship with a temporary agency, which are types of relationships where standard protections against unfair treatment are often difficult to apply. Finally, protection should also be granted to persons those employment contract has ended, as well as paid and unpaid trainees.

__________________

__________________

52 Judgments of 3 July 1986, Lawrie-Blum, Case 66/85; 14 October 2010, Union Syndicale Solidaires Isère, Case C-428/09; 9 July 2015, Balkaya, Case C-229/14; 4 December 2014, FNV Kunsten, Case C-413/13; and 17 November 2016, Ruhrlandklinik, Case C-216/15.

52 Judgments of 3 July 1986, Lawrie-Blum, Case 66/85; 14 October 2010, Union Syndicale Solidaires Isère, Case C-428/09; 9 July 2015, Balkaya, Case C-229/14; 4 December 2014, FNV Kunsten, Case C-413/13; and 17 November 2016, Ruhrlandklinik, Case C-216/15.

Amendment    23

Proposal for a directive

Recital 27

Text proposed by the Commission

Amendment

(27)  Protection should also extend to further categories of natural or legal persons, who, whilst not being 'workers' within the meaning of Article 45 TFEU, can play a key role in exposing breaches of the law and may find themselves in a position of economic vulnerability in the context of their work-related activities. For instance, in areas such as product safety, suppliers are much closer to the source of possible unfair and illicit manufacturing, import or distribution practices of unsafe products; in the implementation of Union funds, consultants providing their services are in a privileged position to draw attention to breaches they witness. Such categories of persons, including self-employed persons providing services, freelance, contractors, sub-contractors and suppliers, are typically subject to retaliation in the form of early termination or cancellation of contract of services, licence or permit, loss of business, loss of income, coercion, intimidation or harassment, blacklisting/business boycotting or damage to their reputation. Shareholders and persons in managerial bodies, may also suffer retaliation, for instance in financial terms or in the form of intimidation or harassment, blacklisting or damage to their reputation. Protection should also be granted to candidates for employment or for providing services to an organisation who acquired the information on breaches of law during the recruitment process or other pre-contractual negotiation stage, and may suffer retaliation for instance in the form of negative employment references or blacklisting/business boycotting.

(27)  Protection should also extend to persons facilitating the reporting and to investigative journalists who acquire and publish information on breaches, as well as to further categories of natural or legal persons, who, whilst not being 'workers' within the meaning of Article 45 TFEU, can play a key role in exposing breaches of the law and may find themselves in a position of economic or other type of vulnerability in the context of their work-related activities. For instance, in areas such as product safety, suppliers are much closer to the source of possible unfair and illicit manufacturing, import or distribution practices of unsafe products; in the implementation of Union funds, consultants providing their services are in a privileged position to draw attention to breaches they witness. Such categories of persons, including self-employed persons providing services, freelance, contractors, sub-contractors and suppliers, are typically subject to retaliation in the form of early termination or cancellation of contract of services, licence or permit, loss of business, loss of income, coercion, intimidation or harassment, blacklisting/business boycotting or damage to their reputation. Shareholders and persons in managerial bodies, may also suffer retaliation, for instance in financial terms or in the form of intimidation or harassment, blacklisting or damage to their reputation. Protection should also be granted to candidates for employment or for providing services to an organisation who acquired the information on breaches of law during the recruitment process or other pre-contractual negotiation stage, and may suffer retaliation for instance in the form of negative employment references or blacklisting/business boycotting.

Amendment    24

Proposal for a directive

Recital 27 a (new)

Text proposed by the Commission

Amendment

 

(27a)  Protection should also extend to people facilitating the reporting, intermediaries, investigative journalists, civil society organisations who, through their activities, guarantee the effective disclosure of the potential or occurred breach.

Amendment    25

Proposal for a directive

Recital 28

Text proposed by the Commission

Amendment

(28)  Effective whistleblower protection implies protecting also further categories of persons who, whilst not relying on their work-related activities economically, may nevertheless suffer retaliation for exposing breaches. Retaliation against volunteers and unpaid trainees may take the form of no longer making use of their services, or of giving a negative reference for future employment or otherwise damaging their reputation.

(28)  Effective whistleblower protection implies protecting also further categories of persons who, whilst not relying on their work-related activities economically, may nevertheless suffer retaliation for exposing breaches or for supporting whistleblowers reporting. Retaliation against volunteers and unpaid trainees may take the form of no longer making use of their services, or of giving a negative reference for future employment or otherwise damaging their reputation. Retaliation against investigators or reporters could take the form of strategic litigation suits, for example regarding libel or defamation.

Amendment    26

Proposal for a directive

Recital 28 a (new)

Text proposed by the Commission

Amendment

 

(28a)  Protection should be also afforded to all individuals working within all the institutions, bodies and agencies of the Union as well as to individuals working in the European entities located outside the Union territory. European Union institutions, agencies and bodies should adopt and implement internal rules protecting whistleblowers in accordance with Articles 22a, 22b and 22c of Regulation No 31 (EEC), 11 (EAEC), (‘the Staff Regulations’).

Amendment    27

Proposal for a directive

Recital 28 b (new)

Text proposed by the Commission

Amendment

 

(28b)  Effective protection implies adequate training and a resource office available to inform whistleblowers on their rights, disclosure options, and limitations so they are aware of their rights and responsibilities. This should not constitute a replacement for access to independent legal advice which should also be available.

Amendment    28

Proposal for a directive

Recital 30

Text proposed by the Commission

Amendment

(30)  Effective prevention of breaches of Union law requires that protection is also granted to persons who provide information about potential breaches, which have not yet materialised, but are likely to be committed. For the same reasons, protection is warranted also for persons who do not provide positive evidence but raise reasonable concerns or suspicions. At the same time, protection should not apply to the reporting of information which is already in the public domain or of unsubstantiated rumours and hearsay.

(30)  Effective prevention of misconduct or wrongdoing or of breaches of Union as well as national law requires that protection is also granted to persons who provide information about potential breaches, which have not yet materialised, but are likely to be committed. For the same reasons, protection is warranted also for persons who do not provide positive evidence but raise reasonable concerns or suspicions. At the same time, protection should not apply to the reporting of unsubstantiated rumours and hearsay. Protection should be given to individuals working in institutions within the Union, but also to individuals working in European entities located outside Union territory. It should also apply to officials as well as other employees and interns working at the institutions, agencies and bodies of the Union.

Amendment    29

Proposal for a directive

Recital 31

Text proposed by the Commission

Amendment

(31)  Retaliation expresses the close (cause and effect) relationship that must exist between the report and the adverse treatment suffered, directly or indirectly, by the reporting person, so that this person can enjoy legal protection. Effective protection of reporting persons as a means of enhancing the enforcement of Union law requires a broad definition of retaliation, encompassing any act or omission occurring in the work-related context which causes them detriment.

(31)  Retaliation expresses the close (cause and effect) relationship that must exist between the report and the adverse treatment suffered, directly or indirectly, by the reporting person, so that this person can enjoy legal protection. Effective protection of reporting persons as a means of enhancing the enforcement of Union law requires a broad definition of retaliation, encompassing any act or omission which causes them detriment.

Amendment    30

Proposal for a directive

Recital 32 a (new)

Text proposed by the Commission

Amendment

 

(32a)  Potential whistleblowers should be free to rely on the reporting channel of their choice, be it internal or external, or to decide to disclose information to the public domain, for example through the media, provided that the confidentiality and anonymity of their disclosure are fully safeguarded, that data protection is ensured and that the journalists, bloggers or media in general are never compelled to reveal the identity of their sources. Whistleblowers should be protected no matter what their choice of reporting channel is.

Amendment    31

Proposal for a directive

Recital 33

Text proposed by the Commission

Amendment

(33)  Whistleblowers are, in particular, important sources for investigative journalists. Providing effective protection to whistleblowers from retaliation increases the legal certainty of (potential) whistleblowers and thereby encourages and facilitates whistleblowing also to the media. In this respect, protection of whistleblowers as journalistic sources is crucial for safeguarding the ‘watchdog’ role of investigative journalism in democratic societies.

(33)  Whistleblowers are, in particular, important sources for investigative journalists. Providing effective protection to whistleblowers as well as to investigative journalists from retaliation and any form of harassment increases the legal certainty of (potential) whistleblowers and thereby encourages and facilitates whistleblowing also to the media. In this respect, protection of whistleblowers as journalistic sources is crucial for safeguarding the ‘watchdog’ role of investigative journalism in democratic societies.

Amendment    32

Proposal for a directive

Recital 34

Text proposed by the Commission

Amendment

(34)  It is for the Member States to identify the authorities competent to receive and give appropriate follow up to the reports on breaches falling within the scope of this Directive. These may be regulatory or supervisory bodies in the areas concerned, law enforcement agencies, anti-corruption bodies and ombudsmen. The authorities designated as competent shall have the necessary capacities and powers to assess the accuracy of the allegations made in the report and to address the breaches reported, including by launching an investigation, prosecution or action for recovery of funds, or other appropriate remedial action, in accordance with their mandate.

(34)  It is for the Member States to identify the authorities competent to receive and give appropriate follow up to the reports on breaches falling within the scope of this Directive, and which also guarantee the highest possible level of independence and impartiality. These may be regulatory or supervisory bodies in the areas concerned, law enforcement agencies, anti-corruption bodies and ombudsmen. The authorities designated as competent shall have the necessary capacities and powers to assess the accuracy of the allegations made in the report and to address the breaches reported, including by launching an investigation, prosecution or action for recovery of funds, or other appropriate remedial action, in accordance with their mandate. The staff of those authorities shall be specialised and have proper training and formation regarding European and national data protection legislation. At the same time, an independent advisory and referral Unit within the European Ombudsman should be established with a view to coordinating with Member States and advising on specific measures for the protection of whistleblowers and investigative journalists.

Amendment    33

Proposal for a directive

Recital 39 a (new)

Text proposed by the Commission

Amendment

 

(39a)  Reporting persons should be allowed to freely choose the most appropriate channel of reporting and disclosure of information, be it internal or external, without any strict hierarchy among them.

Amendment    34

Proposal for a directive

Recital 40

Text proposed by the Commission

Amendment

(40)  It should be clear that, in the case of private legal entities which do not provide for internal reporting channels, reporting persons should be able to report directly externally to the competent authorities and such persons should enjoy the protection against retaliation provided by this Directive.

(40)  Reporting persons should be able to report to the competent authorities and should enjoy the protection against retaliation provided by this Directive.

Amendment    35

Proposal for a directive

Recital 42

Text proposed by the Commission

Amendment

(42)  Provided the confidentiality of the identity of the reporting person is ensured, it is up to each individual private and public legal entity to define the kind of reporting channels to set up, such as in person, by post, by physical complaint box(es), by telephone hotline or through an online platform (intranet or internet). However, reporting channels should not be limited to those amongst the tools, such as in-person reporting and complaint box(es), which do not guarantee confidentiality of the identity of the reporting person.

(42)  Provided the anonymity or confidentiality of the identity of the reporting person is ensured, it is up to each individual private and public legal entity to define the kind of reporting channels to set up, such as in person, by post, by physical complaint box(es), by telephone hotline or through an online platform (intranet or internet). However, reporting channels should not be limited to those amongst the tools, such as in-person reporting and complaint box(es), which do not guarantee anonymity nor confidentiality of the identity of the reporting person. Anonymous reporting should be taken into consideration and protection of anonymous whistleblowers should be put in place, in cases where such protection is required.

Amendment    36

Proposal for a directive

Recital 43

Text proposed by the Commission

Amendment

(43)  Third parties may also be authorised to receive reports on behalf of private and public entities, provided they offer appropriate guarantees of respect for independence, confidentiality, data protection and secrecy. These can be external reporting platform providers, external counsel or auditors or trade union representatives.

(43)  Upon an assessment to be conducted on a case-by-case basis, third parties may also be authorised to receive reports on behalf of private and public entities, provided they offer appropriate guarantees of respect for independence, anonymity, confidentiality, data protection and secrecy. These can be external reporting platform providers, external counsel or auditors or trade union representatives.

Amendment    37

Proposal for a directive

Recital 44

Text proposed by the Commission

Amendment

(44)  Internal reporting procedures should enable private legal entities to receive and investigate in full confidentiality reports by the employees of the entity and of its subsidiaries or affiliates (the group), but also, to any extent possible, by any of the group’s agents and suppliers and by any person who acquires information through his/her work-related activities with the entity and the group.

(44)  Internal reporting procedures should enable private legal entities to receive and investigate in full confidentiality and with respect of anonymity, if appropriate, reports by the employees of the entity and of its subsidiaries or affiliates (the group), but also, to any extent possible, by any of the group’s agents and suppliers and by any person who acquires information through his/her work-related activities with the entity and the group.

Amendment    38

Proposal for a directive

Recital 45

Text proposed by the Commission

Amendment

(45)  The most appropriate persons or departments within a private legal entity to be designated as competent to receive and follow up on reports depend on the structure of the entity, but, in any case, their function should ensure absence of conflict of interest and independence. In smaller entities, this function could be a dual function held by a company officer well placed to report directly to the organisational head, such as a chief compliance or human resources officer, a legal or privacy officer, a chief financial officer, a chief audit executive or a member of the board.

(45)  The most appropriate persons or departments within a private legal entity to be designated as competent to receive and follow up on reports depend on the structure of the entity, but, in any case, their function should ensure absence of conflict of interest, proper know-how and independence. In smaller entities, this function could be a dual function held by a company officer well placed to report directly to the organisational head, such as a chief compliance or human resources officer, a legal or privacy officer, a chief financial officer, a chief audit executive or a member of the board.

Amendment    39

Proposal for a directive

Recital 47

Text proposed by the Commission

Amendment