Despite the many meetings at technical level, there will be no political agreement in the Council on the Directive on the protection of whistleblowers between Member States under the Austrian Presidency of the Council of the EU, particularly because of the thorny question of the legal basis of the legislative act, confirmed several sources on Tuesday 18 December.
It will therefore be up to the Romanian Presidency of the Council of the EU to take up the torch. The former would like to move forward on this matter as soon as possible. The legal basis should therefore be analysed in the competent working group from 10 January. The Presidency would like to submit a proposal shortly to the Permanent Representatives Committee (Coreper).
As a reminder, the question of the horizontal approach, raised by the European Commission and the European Parliament, would not be welcomed by some national delegations. Thus, several Member States, including Ireland in particular, and some countries in the Visegrád Group (including Hungary), reportedly do not appreciate equal treatment of tax matters and those related to the internal market. France would, on the contrary, be in favour of the Commission's proposal, as would the Netherlands. Germany reportedly has a more vague position.
Opinion of the Council's Legal Service
In an opinion presented in a working group (the main points of which have already been reported to us - see EUROPE 12159), on Monday 17 December, the Council's Legal Service proposes to reduce the legal basis of the horizontal directive to seven articles (compared to 16 in the European Commission's proposal, or even 17 for the European Parliament) and to create four other separate legislative acts.
This would be a first legislative act on nuclear safety in relation to the Euratom Treaty (Article 31), another on competition and State aid (Articles 103 and 109 TFEU), another on company taxes (Article 115 TFEU, which requires unanimity in the Council) and finally a last one on gun control (Article 207 TFEU, paragraph 2).
The Council's legal experts also propose the deletion of the reference to the fight against fraud affecting the Union's financial interests by means of criminal law (Directive 2017/1371) and Decision 1082/2013 on serious cross-border health threats. (Original version in French by Pascal Hansens)