The legal basis of the draft directive on protection for whistleblowers in the European Union is the subject of many amendments at the European Parliament’s legal affairs committee (JURI) with the aim of extending the directive’s scope of application and ensuring its horizontality. This approach is commendable, said rapporteur Virginie Rozière (S&D, France), but could noticeably hold back the negotiations.
At the examination of the amendments by the committee on Monday 24 September, Rozière said that nine new legal bases had been proposed in addition to the existing seventeen. She said she favoured the instrument being as effective and as horizontal as possible and did not haven preconceptions about enlarging the text’s scope, but one needed to avoid too many upturnings of the text’s balances and therefore look at the consequences on a case-by-case basis for the additions.
Among the suggestions is Article 153 of the Treaty on the Functioning of the EU (TFEU), devoted to worker protection, which is the most regularly suggested basis. The article is sometimes quoted in its entirety in the amendments lodged by the Austrian social democrat Evelyn Regner. Sometimes only a few paragraphs are quoted, like in Rozière’s draft, to avoid special legal procedure requiring unanimous voting.
The most prolific MEP in terms of amendments is certainly Pascal Durand (Greens/EFA, France), who has introduced no fewer than 7 new articles: - Article 19, paragraph 2, on fighting any form of discrimination ; - Article 77, paragraph 2, on common visa policies and controls of individuals at borders; - Article 78 on asylum; - Article 79 on managing flows of migrants; - Article 83 paragraph 1 on cross-border crime; - Article 153; - Article 157 on the principle of equal pay for men and women.
The ELDD’s Italian delegation introduced Article 352 of the TFEU, known as the ‘flexibility clause,’ aiming to expand the scope of the directive as far as possible and allow an overarching approach rather than a sectoral one, explained the MEP. The problem is that this article also complicates the legal process by introducing unanimous voting at the Council.
The profusion of new articles may slow down the legislative process. A source explained to this newsletter that each time a new legal basis is given to a text, the legal services are required to issue an opinion, which has to be adopted by the parliamentary committee, expressing concern about respect of the timeline since the vote at JURI is scheduled for 10 October.
European body. Among the total of 577 lodged amendments, the plan for a European body for receiving information protecting whistleblowers (see EUROPE 11890) has resurfaced in amendments by the GUE/NGL group, which proposes setting up a 'Whistleblower Protection Office' – OPLA. Jean-Marie Cavada (ALDE, France) mentions the possibility of making reports to competent EU ‘bodies, offices or agencies’ if foreseen by EU legislation.
Hierarchy of reporting channels. The question of hierarchy in reporting channels (first of all simply internally, then externally and finally n the media) is a subject of debate.
The rapporteur wants an easing of the channels. Cavada favours flexibility between ‘internal’ and ‘external’, m order words, from a company to the competent national authorities.
The EPP negotiator, France’s Geoffroy Didier, wants to keep a structured hierarchy to avoid abusive reports to the media.
The red lines of Germans at the EPP. The German delegation to the EPP had adopted a very restricted line, going by the amendments lodged by Axel Voss, who scrapped from Article 1 any reference to infringements related to agreements to gain tax advantages, ranging from going against the object of the aim of law applicable to company taxation.
The German MEP also proposes to scrap the reversal of the burden of proof to the benefit of the whistleblower. Amendments seen by the rapporteur as ‘worrying’ because they would make it impossible to protect whistleblowers in, for example, the Luxleaks case, she said.
Legislative work will be very intense. The first negotiating meeting on the compromise amendments will be held on 2 October on the fringes of the Strasbourg plenary. (Original version in French by Pascal Hansens)