The European Parliament and the Council of the EU met again on Monday evening, 11 March, to discuss the Directive on whistleblowers, in particular the question of graduation of the reporting of a wrongdoing. At the time of writing, the outcome of the negotiations was not yet known, although there was cause for optimism on both the Parliament and Council of the EU sides.
The graduation of the alert was the last major outstanding political point, as the Council of the EU had long been in favour of a rigid three-step reporting mechanism (within the organisation, then to an external organisation, finally to the media and the public) in order to benefit from the protection of the Directive, where the European Parliament has always preferred to leave the choice to potential whistleblowers between the internal and external channels.
Since last week, a proposal has been on the table. At the Justice and Home Affairs Council (JHA), it received the support of the Member States at ministerial level, in particular with the lifting of a blocking minority built around France (see EUROPE 12208/1).
This proposal would, according to several sources, consist in maintaining the three-step alert, i.e. all organisations covered by the Directive would have to set up an internal reporting mechanism. But the whistleblower would benefit from the protection of the Directive, even without first using the internal channel, if he or she considers in good faith that the internal alert would be dysfunctional.
The co-legislators discussed in particular the delays in switching from one alert to another, with the Council of the EU wanting longer deadlines (three to six months) than the Parliament (two to four months), as well as the size of SMEs needed to set up an internal channel.
The Council has always wanted to set this threshold at 50 employees, in order to widely extend internal reporting among economic actors, where the Parliament has always wanted to set it at 250, to increase the use of external reporting.
The status of the annex listing the legislative acts concerned by the Directive and its nature (indicative versus prescriptive) was also discussed.
Another subject under discussion is the scope of exemptions from the Directive when the national security of a Member State is at stake and, in particular, the qualification role assigned to the competent authorities in this specific case. The Council of the EU has always supported the prohibition of any possibility of public disclosure when a competent authority determines an alert as a matter of national security.
A long meeting. This was to be the last inter-institutional meeting (trilogue), we were told earlier today. But this one was coming, at the time of writing, particularly laborious, given that the Commissioner for Justice, Věra Jourová, was to follow in parallel the trilogue on company rights (see EUROPE 12208/12), sequencing the two negotiation meetings. (Original version in French by Pascal Hansens)