Brussels, 04/05/2016 (Agence Europe) - The European Commission provoked a degree of astonishment by appearing not to wish to go against the proposal made by the Greens/EFA Group in the European Parliament on Wednesday 4 May for a directive to protect whistle-blowers.
The surprise was caused by the comments of Anabela Gago, the head of the organised crime unit at the Commission's Directorate General Migration and Home Affairs (DG HOME). During an exchange of views at the Parliament, Gago did not openly oppose the Greens/EFA proposal, although she criticised the legal basis chosen. This was “a change from the position taken by the Commission in June 2015”, in the view of a European source, who made reference to a conference organised by the Greens on whistle-blower protection.
The Commission had seemed still to be sticking to its position at a conference organised by the ALDE Group in January 2016, also devoted to whistle-blowers, another source stated. “The debate, indeed, was not very fruitful, with the Commission stating that there was no legal basis for a directive on whistle-blowers”, the source went on.
Now, proposals for just such a directive would seem to have a far greater chance of success, according to various sources within the different political groups in the Parliament. For the Commission to address the issue, MEPs will have to adopt a legislative initiative report under Article 225 of the Treaty on the Functioning of the European Union (TFEU), which requires an absolute majority in Parliament.
“On the principle of a directive on whistle-blowers, this majority is perfectly possible”, according to one MEP, who pointed out that such a request had been adopted within the TAX 2 committee. French MEP Jean-Marie Cavada (ALDE), who published a piece on whistle-blowers in the French newspaper Le Monde on that same day, unequivocally backs proposals for a directive, as does his group, though without agreeing with the text put forward by the Greens. There is general agreement on this issue among the political parties of the Left in the Parliament. The EPP Group also appears to agree with the principle, while stressing the need for a fair balance to be struck between the rights of whistle-blowers and those of businesses.
Greens' proposal is particularly ambitious. With regard to the goal and scope of the proposal brought forward by the Greens, Article 1 and 2 of the draft directive state that the objective is to “introduce minimum standards for the legal protection of whistle-blowers so as to encourage the disclosure of information in the public interest” … “in all sectors of activity, both public and private”. The directive will cover all information that is of public interest, including on national security.
The draft directive also contains a tighter definition of whistle-blower than the trade secrets directive (see EUROPE 11532). In the Greens/EFA text, a whistle-blower is defined as “any worker or contractor who discloses, attempts to, or is perceived to disclose information or supporting evidence that is in the public interest or that is related to a threat or prejudice to the public interest, of which he or she has become aware in the context of his or her work-based relationship”. The term “worker” means any person employed by an employer, including trainees and apprentices and former employees, or as otherwise stipulated in EU law.
Furthermore, the draft directive would provide protection for whistle-blowers from any reprisals and criminal or civil prosecution or disciplinary measures, unlike the trade secrets directive which relates to civil law (see EUROPE 11521). Lastly, and again unlike under the trade secrets directive, it will not be for the whistle-blower to prove that he/she acted in the public interest but for those people implicated to prove that there is no threat.
The Greens Group intends to make the relevant national ministers aware of the draft directive by 17 May 2016, the date on which the trade secrets directive will be formally adopted by the Council. (Original version in French by Pascal Hansens)