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Adoption by the co-legislators of the proposal on the protection of persons reporting on breaches of Union law (‘whistle-blower protection proposal’)

In “Area of Justice and Fundamental Rights”

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For a brief overview of the key points of the adopted text and its significance for the citizen, please see the corresponding summary note.

'Whistle-blowers' are individuals who come across information about wrongdoing and about acts or omissions which represent a threat or harm to the public interest (e.g. fraud, corruption, tax evasion, and lack of protection of food safety or the environment) and report such acts or omissions to their employers, the competent authorities or the press. In recent years, whistle-blowers have played a key role in revealing serious breaches of the public interest such as in the case of the leaking of the Panama Papers. As a consequence, whistle-blower protection has become a hot topic at many political levels. Nevertheless, the level of whistle-blower protection is still inadequate and varies greatly among the EU institutions and EU Member States. The disparities between Member States may lead to legal insecurity and the risk of unequal treatment. All the EU institutions have been obliged since 1 January 2014 to introduce internal rules protecting whistle-blowers who are officials of the EU institutions, in accordance with new Staff Regulations.

In its 2016 communication on the fight against tax evasion and avoidance, the Commission expressed its full support for the protection of whistle-blowers, and announced that it would continue to monitor Member States’ provisions and facilitate exchange of best practice to encourage improved protection at national level. It also indicated that it is assessing the scope for horizontal or further sectorial action at EU level, while respecting the principle of subsidiarity. This commitment was reaffirmed in its 2017 work programme. Moreover, a public consultation on whistle-blower protection was also organised in 2017.

On 14 February 2017, the Parliament adopted a resolution on the role of whistle-blowers in the protection of the EU’s financial interests. On 2 October 2017, the Committee on Legal Affairs (JURI) adopted an own-initiative report on legitimate measures to protect whistle-blowers. The report calls on the Commission to present a horizontal legislative proposal before the end of 2017, with a view to protecting whistle-blowers effectively in the EU. It suggests that EU legislation should support current international standards developed to protect whistle-blowers. Five points are of particular importance:

  1. to set a definition of 'whistle-blower' broad enough to cover as many scenarios as possible;
  2. to protect not only reports of unlawful acts, but also, more broadly, disclosures of a breach of the public interest; to introduce clear reporting mechanisms in public and private organisations;
  3. to create an EU agency specifically dedicated to advise, guide and collect reports from whistle-blowers; 
  4. to extend the role of the European Ombudsman in order to supplement and coordinate Member States in protecting whistle-blowers.

The Commission proposal aims at fully exploiting the potential of whistle-blower protection with a view to strengthening enforcement. It sets out a balanced set of common minimum standards providing robust protection against retaliation for whistle-blowers reporting on breaches in specific policy areas where: i) there is a need to strengthen enforcement; ii) underreporting by whistle-blowers is a key factor affecting enforcement; and iii) breaches may result in serious harm to the public interest. The proposal draws upon the case law of the European Court of Human Rights on the right to freedom of expression enshrined in Article 10 of the European Convention on Human Rights 10 ECHR, and the principles developed on this basis by the Council of Europe in its 2014 Recommendation on Protection of Whistle-blowers, as well as further international standards and good practices and EU fundamental rights and rules.

On 27 November 2018, the Committee on Legal Affairs of the European Parliament voted on the proposal of directive on the protection of persons reporting on breaches of Union law. The vote accepted the vast majority of proposed amendments. The draft text will be the Parliament’s negotiating position when it debates with the Council and Commission on the final text. The voted amendments introduce, inter alia, anonymous reporting (and clarifies that in case of someone reported anonymously, but later their identity is revealed, they will still be protected like any other whistleblower); legal protection for journalists reporting on whistleblowing and Non-Governmental Organisations. On 11 March 2019 The European Parliament and the Member States reached a provisional agreement on the text. The new rules cover a wide reach of areas of EU law, including anti-money laundering and corporate taxation, data protection, protection of the Union's financial interests, food and product safety and environmental protection and nuclear safety. Further, Member States are encouraged o establish comprehensive legal framework to protect whistleblowers in other areas. As reported by the EU Commission, the new rules are based on three principles:

  • Clear reporting procedures and obligations for employers: the new rules will establish a system of safe channels for reporting both within an organisation and to public authorities;
  • Safe reporting channels: whistleblowers are encouraged to report first internally, if the breach they want to reveal can be effectively addressed within their organisation and where they do not risk retaliation. They may also report directly to the competent authorities as they see fit, in light of the circumstances of the case. In addition, if no appropriate action is taken after reporting to the authorities or in case of imminent or manifest danger to the public interest or where reporting to the authorities would not work, for instance because the authorities are in collusion with the perpetrator of the crime, whistleblowers may make a public disclosure including to the media. This will protect whistleblowers when they act as sources for investigative journalism.  
  • Prevention of retaliation and effective protection: The rules will protect whistleblowers against dismissal, demotion and other forms of retaliation. They will also require from national authorities that they inform citizens about whistleblowing procedures and protection available. Whistleblowers will also be protected in judicial proceedings. 

The provisional agreement has been adopted by the European Parliament in the plenary sitting date of 16 April 2018 with 591 votes in favour, 29 against and 33 abstentions (a corrigendum file was approved by the Parliament in the plenary sitting date of 16 September 2019). The new rules, approved by EU ministers on 25 September 2019, have been signed by the European Parliament on 23 October 2019 and published in the Official Journal on 26 November 2019. Member states will then have two years to comply with such rules.

References:

Further reading:

Author: Gianluca Sgueo, Members' Research Service, legislative-train@europarl.europa.eu

As of 20/11/2019.