Protection that goes beyond just employees in a number of sectors of activity, compulsory introduction in the private sector of reporting channels, a ban on retaliation measures against whistleblowers: these are the measures planned by the European Commission and presented on Monday 23 April. They will satisfy many of the requests made but are also expected to prove disappointing to others.
Frans Timmermans, the Commission’s First Vice President therefore informed journalist that he wanted to provide greater protection to whistleblowers who often pay a “high price” for their disclosures despite the fact that without them, many scandals would have been covered up, such as the Panama Papers, LuxLeaks and more recently the Cambridge Analytica affair. He said that they needed to improve protection for these whistleblowers and that it was even more necessary because better protection would help enhance respect and implementation of European legislation and through that, strengthen the single market and the way in which citizens' money is spent.
Scope of application
The directive was only slightly amended compared to the version reported on last week by EUROPE (see EUROPE 12004): taking as the starting point for the recommendations on reporting persons (“reporting person” in the text and not the usual term of “whistleblower” that is used) from the 2014 Council of Europe, it seeks to protect not just officials and employees but also subcontractors, providers, consultants, shareholders, volunteers, trainees (even those that are not paid) and even those applying for a post.
The fields of activity and sectors covered by the directive are many and range from product safety to the transport, food, nuclear sectors, in addition to environmental protection, health and animal welfare, public health, consumer protection, personal data protection, private life, computer and information network system security and the protection of the financial interests of the European Union. To achieve this aim, the directive is based on a particularly detailed legal basis: there are no fewer than 16 articles from the Treaty on the Functioning of the EU (TFEU).
Three reporting stages
The Commission has also planned for a reporting system divided into three stages: as described to journalists, the Commissioner for Justice, Vĕra Jourová explained: the reporting person should, first of all, approach the internal reporting system (compulsory for all companies where there are more than 50 employees but not for micro-businesses and small companies, except in the financial sector) then the competent national authorities and finally the public. The directive includes, however, a certain flexibility and leaves these people the possibility of deciding what channel to choose themselves.
This internal procedure is expected to ensure the confidentiality of the reporting person's identity. A person or internal service (or third party in certain conditions) will have to be appointed in each organisation to follow up the signals made. The reporting person will also need to be kept up to speed following the reports made in the three months from having originally flagged up the information in question. The reports can be made in writing, email or by telephone (it is possible for reports that are made orally to be registered or not).
Retaliation measures
The Commission also drew up an open list banning retaliation measures against whistleblowers. In this regard, the burden of proof obligation is reversed, explained the two Commissioners, who indicated that it would be up to the organisation that has been flagged up to prove that retaliation measures against the whistleblower are not due to the disclosures made by the latter. The directive also includes a protective framework for people affected by the reports. Ms Jourová explained, “Our proposal today takes a balanced approach that protects brave and honest people who protect society, but also guarantees the presumption of innocence of those who are accused of wrongdoing”.
On the other hand, with regard to financial, legal or psychological assistance, these questions are left to the discretion of the member states that can allow this or not. It should be pointed out that the directive also allows member states to go further to protect whistleblowers, as long as this is not detrimental to the people affected by reporting.
Transposition in to national law is planned for 15 May 2021 at the latest.
Shortcomings
Some sources close to the dossier, however, have highlighted some shortcomings that are, in a number of cases, quite significant. One source is concerned by the absence of article 153 in the TFEU on the protection and health of workers in the articles referred to in the legal basis.
Our source claims that this is due to concerns at the Commission that mentioning this article would slow down the adoption of the text. This is because this article underpins the involvement of the social partners in the legislative process.
Other subjects of concern according to our source involve: the fact that the financial and legal support mechanisms are left to the discretion of the member states, which could undermine the objective pursued by the directive, namely, protecting whistleblowers from gagging orders.
There are also doubts that still remain with regard to the extent of the protection provided by the directive, according to our source. In this case she was specifically referring to the relationship between article 13 on the conditions for protecting whistleblowers, which includes protection for anyone acting in good faith and recital 59, which takes up this approach whilst outlining the directive's scope of application. The directive also contains an annex listing the European legislative texts covered by this directive's application which makes it look very complicated.
Another source is concerned by the lack of clarity regarding the conditions whereby a whistleblower directly approaches the public.
In a general way, several sources have expressed concerns at the Council and member states where the positions are very different and the appetite for this text is somewhat less enthusiastic. (Original version in French by Pascal Hansens)