Vigjilenca Abazi, Assistant Professor of EU Law, Maastricht University & Fellow, Yale Law School

*The author co-authored the model Directive presented at the European Parliament in May 2016.

On April 16th, the European Parliament overwhelmingly voted to approve a new law protecting whistleblowers within the European Union. This Directive establishes high standards and exemplifies how collaborative efforts between civil society organizations, NGOs, trade unions, journalists, academics, whistleblowers, and the European Parliament can produce progressive legislation that strengthens the safeguards for upholding the rule of law in Europe.

‘Promoting Gold Standard Protections’

Before this Directive, whistleblowers in Europe faced a contradictory situation. They risked prosecution domestically while being praised for “promoting European values” at the EU level. The case of LuxLeaks whistleblower Antoine Deltour exemplifies this. Although the European Parliament had urged the Commission to propose legislation since 2013, the Commission initially declined, citing a lack of EU authority to legislate. The Council also expressed skepticism, as many member states lacked domestic laws on this matter. A pivotal moment was the presentation of a model Directive, championed by the Greens & European Free Alliance at the European Parliament in 2016. The murders of journalists Daphne Galizia in Malta and Ján Kuciak in Slovakia, who exposed corruption in their respective countries, further emphasized the need for whistleblower protection.

The Directive signifies considerable progress in safeguarding whistleblowers and guides Member States toward a sophisticated legal structure. The Whistleblowing International Network, a leading global NGO for whistleblowing, has noted that the EU “has raised the bar for all EU governments to lead the world in promoting gold standard protections for whistleblowers.” Commissioner Jourová echoed this sentiment, stating that these “rules will be a game changer.”

The Whistleblower

The Directive encompasses both public and private sector workers. This includes civil servants, the self-employed, shareholders, management, administrative and supervisory bodies, volunteers, paid and unpaid trainees, contractors, subcontractors, suppliers, individuals disclosing breaches during recruitment, and former employees. However, EU officials are not covered. To benefit from the Directive’s protection, a worker must have reasonable grounds to believe that the disclosed information was accurate at the time of reporting and fell within the Directive’s scope.

Wide Ranging Policies

This Directive boasts a wide protective scope, extending beyond who qualifies as a whistleblower to the policies it covers. The Commission drew upon numerous Treaty provisions to prevent gaps in reporting. The disclosure, however, must pertain to a breach or misuse of EU law in areas such as public procurement, financial services, money laundering and terrorist financing prevention, product safety, transportation safety, environmental protection, radiation and nuclear safety, food and feed safety, animal health and welfare, public health, consumer protection, privacy and personal data protection, network and information system security, protection of the Union’s financial interests, violations of internal market rules (including competition and state aid rules), or tax evasion. It’s important to note that strictly national policies are not covered, nor are violations of workers’ rights and working conditions, although the latter exclusion will be revisited in the future.

Disclosure Channels

A major point of contention since the Commission’s proposal of the Directive last year has been whether protection hinges on whistleblowers first reporting internally. The Commission’s proposal outlined a three-tiered reporting system, mandating internal disclosure within the organization first and foremost. This proposal contradicted the European Court of Human Rights’ case law on this matter and could have been more detrimental than beneficial, particularly in Member States with existing legislation that doesn’t impose such rigid channels.

Civil society’s role in amending the mandatory internal reporting requirement cannot be overstated. EP rapporteur Rozière acknowledged these concerns and ensured that this EU legislation upholds appropriate standards without creating ambiguity in legal protection. She made this her “biggest” priority and successfully advocated for whistleblowers’ right to choose the best disclosure avenue. The adopted Directive protects whistleblowers who report internally or directly to regulators and competent authorities. While reporting to the public is still subject to conditions, whistleblowers would be protected if they went public due to retaliation risks or low prospects of the reported breach being addressed.

Applicable to Businesses and Public Administration

The Directive applies to both the private and public sectors, including local authorities. Companies with over 50 employees are required to establish reporting channels. However, local authorities with fewer than 50 employees or municipalities with under 10,000 inhabitants are exempt from this obligation. A Resolution from the Council of Europe, passed by a large majority in early April 2019 by the Congress of Local and Regional Authorities, offers additional guidance on how local and regional authorities can guarantee whistleblower protection. This Resolution provides recommendations and the latest data on the subject.

Implementation and Practice

A well-drafted law is ineffective if poorly implemented. Member States must translate this Directive’s spirit into practice and even aim for higher standards when possible. They have two years to transpose the Directive into national law, during which civil society will actively monitor and potentially facilitate national dialogues on safeguarding whistleblowers. In the wake of scandals like LuxLeaks, Panama Papers, and Cambridge Analytica, public awareness is growing regarding the vital role whistleblowers play in exposing wrongdoing. Citizens increasingly believe they should not face personal repercussions for acting in the public interest. National governments should acknowledge this public sentiment and implement the EU Directive to its full extent.

Photo credit: The Guardian Nigeria