According to several sources, the draft horizontal directive to protect whistleblowers is nearing its conclusion in the Council of the EU with the likely adoption of a general approach at the Permanent Representatives Committee II (Coreper II) on Friday 25 January.
The legal basis of the Directive was still being discussed at a working group meeting on Monday 21 January, where it was decided to follow the proposal of the Romanian Presidency of the Council, consulted by EUROPE (see EUROPE 12176), to maintain a unique instrument and to exclude Article 207 of the TFEU on the grounds that this legal basis requires a Regulation and not a Directive.
Thus, with the final adjustments made, Member States are invited to discuss a political agreement as part of the next Coreper meeting. If there were to be an agreement, which would most probably be the case according to our sources, the interinstitutional negotiations (trilogues) between Parliament and the Council would begin the following week, on the evening of Tuesday 29 January.
A watered-down directive
The Council's compromise, in some respects, significantly weakens the scope of the Directive. Member States are therefore in favour of maintaining a rigid three-step reporting mechanism, including internal, then external and finally public reporting.
The national delegations also specified that public reporting is no longer covered by the Directive if it is deemed to be minor by the competent national authority. In addition, the Presidency's proposal reviews the definition of 'breaches' and seems to call into question the principle of abuse of rights by specifying the need to establish the unlawfulness of an act ('unlawful acts') in order to be covered by the Directive.
As it stands, such a definition would potentially prevent reports on tax arrangements which only just border on legality from being covered, such as those revealed in the ‘Luxleaks’ or ‘Panama papers’ cases. (Original version in French by Pascal Hansens)