Following a long inter-institutional meeting (trilogue) that ended in the middle of the night on Monday 11 March, the European Parliament and the Council of the EU have finally got to grips with the directive on the protection of whistleblowers and, in particular, the difficult issue of scaling reports of wrongdoings.
“This agreement reflects Parliament's priorities and sets out a remarkable basis with which the EU can equip itself regarding the protection of whistleblowers”, said Virginie Rozière (S&D, France), a rapporteur at the press conference on Tuesday morning.
She stressed how “debates” had been “lively”, particularly on the question of the hierarchy of reporting between internal channels (reporting within the organisation) and external channels (reporting to a competent organisation).
The fifth and final inter-institutional meeting was largely devoted to this issue on the basis of a Commission proposal, consulted by EUROPE. As announced by the Commissioner of Justice, Věra Jourová (see EUROPE 12210/3), the three reporting channels have, in essence, been preserved.
However, the “obligation” to use internal channels has been replaced by an “encouragement” to use them. In this way, the whistleblower will benefit from the protection of the Directive, even after first alerting a competent authority, should he consider that the internal reporting channel is dysfunctional and presents a risk of “retaliation”.
This is a great victory for the European Parliament, which, according to Mrs Rozière, would have been able to use the divisions within the EU Council to avoid a blocking minority; for a time, one such minority had been built around France, Austria, Germany, the Netherlands and Italy, all of which were opposed to a relaxation of the three-stage hierarchy (see EUROPE 12206/8). The latter three states stepped back at the meeting of the Committee of Representatives II (Coreper II) last Wednesday, leaving France and Austria in an isolated position, and joined by Hungary (see EUROPE 12210/3).
However, this concession to the Parliament was not made without counterbalances. Any company with at least 50 employees will be required to set up an internal mechanism, as the EU Council wanted (the Parliament wanted it to be a requirement from 250 employees). On the other hand, companies employing between 50 and 250 employees will have an additional 2 years to make sure they are compliant, in addition to the two-year period for transposition of the directive.
Another concession was that parliamentarians had to abandon the introduction of Article 153 TFEU to cover reports on working conditions. The EU Council and the Commission did not welcome this addition, nor did the social partners, on the grounds that Article 153 requires their prior consultation before a legislative act is presented. But a general revision clause was introduced including a statement from the Commission, emphasising its willingness to consult social partners in the future.
Still on a legal basis, several articles relating to the internal market (33, 62, 103, 103, 109 and 207) have been deleted, in line with the EU Council's position that Article 114 regarding the functioning of the internal market is sufficient.
Finally, the Parliament was also unsuccessful in respect of the annex that lists the legislative acts covered by the directive, which is maintained, and is also of a “closed and exhaustive” nature. However, Member States will be invited to apply the directive in those areas covered by the legislative act to ensure the most “horizontal” protection possible.
Mrs Rozière also pointed out that the directive provided for exemptions when professional and medical secrecy, defence and State security are involved, or when the report concerns classified documents. In this way, the directive would not, therefore, have covered disclosures made such as those in the case of Edward Snowden, comments one source. The issue of national security was the "final sticking point” of the negotiations, we are told, and will be left to the discretion of Member States in relation to Article 346 TFEU.
The directive will cover employees, trainees, subcontractors, service providers, consultants and anyone who has helped the whistleblower (i.e. “facilitators"), the MEP said.
Moreover, confidentiality clauses cannot be used against a whistleblower to question the legitimacy of their disclosure, she continued. Finally, the reversal of the burden of proof for reprisals has been kept. For example, it will be up to the organisation that is the subject of a report to prove that the termination of the person who initiated the report is in no way related to the disclosure they made.
A final technical meeting on Tuesday, 12 March was devoted to “cleaning up” the text. The Romanian Presidency of the Council of the EU is expected to submit it to Coreper II for approval on Friday. The following week, it will be the turn of the Legal Affairs Committee to voice their support for the text, which will be put to the vote in plenary at the first session in April.
The directive was originally the "trade secrets" directive. The path towards adopting this directive has been long and winding and has its origin in the adoption of the directive intended to protect trade secrets (see EUROPE 11454/8), as noted by the shadow rapporteur, Pascal Durand (Greens/EFA, France), for whom such a directive was only acceptable on the provision that a directive to protect whistleblowers was also adopted. (Original version in French by Pascal Hansens)