The European Commission has opted for a horizontal directive to protect whistleblowers at a EU level as from mid May 2021. The text includes a whistleblowing process by stages and a list of prohibited retaliation measures judging by the provisional version of which EUROPE obtained a copy on Wednesday 18 April.
The Commission proposal follows strong insistence from the European Parliament in this regard, which adopted an own initiative report by Virginie Rozière (S&D, France), in which it calls on the Commission to take action (see EUROPE 11890). The Council has called on the Commission to explore possibilities for taking European level action in October 2016 in relation to tax transparency following the ‘Luxleaks' scandal (see EUROPE 11639).
The Commission has hesitated between publishing recommendations on the protection of whistleblowers for the attention of member states, exclusively presenting a directive for protecting the financial interests of the Union or introducing a directive covering a broad sector. The third option was finally retained because it is more likely to rectify the fragmented national approaches in this area.
Legal basis
The Commission is looking at a substantial legal basis to ensure the horizontal nature of the directive and is proposing no fewer than 16 articles in the Treaty on the Functioning of the European Union (articles 16, 33, 43, 50, 53 (1), 62, 91, 100, 103, 109, 114, 168, 169, 192, 207 and 325). The idea of implicit power developed by Parliament's legal services on the basis of the case law of the European Court of Justice was not retained (see EUROPE 11628).
The stated objective is to cover as many cases as possible in order to ensure the effective functioning of the internal market. Therefore, the directive aims to guarantee: the security of products; transport; nuclear plants; food; environmental protection; health and animal welfare; public health; consumer protection (Cf dieselgate); - the protection of private and personal data; network and information system security; competition; the financial interests of the Union.
The Commission is introducing broader conditions to guarantee the protection of whistleblowers. It is proposing that a whistleblower is defined as anyone who has reasonable motives for believing that the information communicated is valid at the moment of the declaration.
The Commission considers that this definition will help to prevent malicious and abusive information being produced while guaranteeing that protection is not lost if the person has mistakenly flagged something up.
Whistleblowing mechanism in stages
As previously announced (see EUROPE 11991), the Commission is in favour of a process in different stages that encourages whistleblowers to revert, first of all, to the internal channels in the organisation they are based.
Nonetheless, if these channels prove dysfunctional, the whistleblower will be able to approach the competent external authorities and, as a last resort, the public and media. The directive stipulates that in all cases, however, a protective framework should be provided for whistleblowers that have decided to go to the public.
Micro-businesses and SMEs exempted
The directive is going to introduce compulsory internal whistleblowing mechanisms for businesses. Nevertheless, it is also looking at a possible exemption for micro-businesses and small companies. Potential whistleblowers working in these small organisations will then be allowed to approach the external competent authorities. The Commission, however, is planning for an exemption to the exception for micro-businesses working in financial services, as stipulated in European sectoral legislation.
The Commission considers that putting these kinds of channels in place will have a minor impact on medium-size companies, with an estimated annual average cost of just over a €1,000.
With regard to the "external" section, member states will have to appoint appropriate and autonomous authorities for collecting and managing information flagged up by whistleblowers and keep the whistleblowers up to speed with regard to how the processing of their information is going within a six month maximum framework.
Retaliation measures prohibited
The Commission has also drawn up a non-exhaustive list that prohibits retaliation measures against whistleblowers, such as sackings, retroactive or refused promotions, changes in the location of the workplace and harassment.
One interesting point includes a possible ban on informal or formal sectoral agreements that aim to prevent the professional reintegration of whistleblowers.
It should also be pointed out that a company affected by information from a whistleblower has to prove that any measure taken against a whistleblower is not related to the information flagged up by the whistleblower. The directive may also provide member states with the possibility of setting up legal and financial assistance for whistleblowers.
No European body
Contrary to requests from MEPs, no European body appears to have been planned for whistleblowers or any European funding in this regard. The Commission also appears to favour confidentiality over anonymity for whistleblowers.
The directive is expected to be presented on Monday, 23 April after having been postponed on several occasions (see EUROPE 112002). The text was debated at the College of Commissioners on Tuesday 17 April and is expected to be stabilised accordingly.
Member states with misgivings
Although Parliament is very much in favour of this text, the Council is much more lukewarm.
Spain and the countries of Central and Eastern Europe are not particularly enthusiastic, while France and Ireland do not approve of European legislation in this sense as they have just introduced national legislation on the issue. (Original version in French by Pascal Hansens)