Ahead of the own initiative report on the whistleblowers directive, the European Parliament’s legal department would, according to a number of sources consulted on Tuesday 20 September, seem to be tending more and more towards an approach based on the judicial theory establishing recognition of implied powers. This proposal was first presented to MEPs in July of this year (see EUROPE 11601).
Cited as the possible basis for this approach is Article 82, Paragraph 2 of the treaty on the Functioning of the European Union (TFEU), which deals with “the approximation of criminal laws and regulations of the member states” when it proves “essential to ensure the effective implementation of a Union policy”.
This article codifies the concept of “implied powers”, which was developed by the Court of Justice of the EU in the 1980s and served to develop external policy powers, with the aim of preserving explicit EU powers in internal policy (ruling of the Court of 8 July 1987, Federal Republic of Germany and others versus the Commission of the European Communities (migration policy) – joined cases C-281, 283, 284, 285 and 287/85).
The Court stated that “where an Article of the EEC treaty … confers a specific task on the Commission it must be accepted, if that provision is not to be rendered wholly ineffective, that it confers on the Commission necessarily and per se the powers which are indispensable in order to carry out that task”. This principle has since been codified clearly in Article 216 of the TFEU which states: “The Union may conclude an agreement with one or more third countries or international organisations where the Treaties so provide or where the conclusion of an agreement is necessary in order to achieve, within the framework of the Union's policies, one of the objectives referred to in the Treaties, or is provided for in a legally binding Union act or is likely to affect common rules or alter their scope”.
On this basis, the legal department proposes building a “horizontal instrument” covering a maximum of sectors. One may mention Articles 91 and 100 of the TFEU on road, maritime and air transport, 114 on the internal market, 192 on the environment and lastly probably Article 325 on fraud and all other illegal activity affecting the financial interests of the EU. These articles all stipulate the co-decision procedure and are “consistent one with another”, according to the sources consulted. Article 352, which had been under consideration for a time (see EUROPE 11601), was ultimately rejected because it requires unanimity in the Council.
As for the general spirit, the directive, we have been told, is likely to be very flexible in the way it is drafted, favouring abstraction over exhaustiveness – by nature, exclusive – in order to ensure articulation with national legislative provisions. In some member states, whistleblowing is a matter for civil law and in others for criminal law.
The Greens, whose initiative this draft directive was, wanted a legislative initiative report (see EUROPE 11576) but this was jettisoned in favour of a simple own initiative report, following a proposal from Jean-Marie Cavada (ALDE, France). The reason for the abandonment was the uncertainty over the legal basis when there can be no room for doubt with a legislative initiative report.
As the instigator of the draft own initiative report, Cavada had been touted as the likely rapporteur, in line with the tradition within the legal affairs (JURI) committee that leaves it to the political group from which the initiative comes. It would seem, however, that the S&D Group is bringing pressure to bear to take charge of the report, invoking the points system. The two names being most often mentioned are those of Evelyn Regner (Austria), who is the group coordinator, and Sergio Cofferati (Italy), the shadow rapporteur on the business secret directive. (Original version in French by Pascal Hansens)