European Commission presents draft Directive on Whistleblower Protection

Public Statement by Blueprint for Free Speech
By BLUEPRINT STAFF, MONDAY 23 APRIL 2018. In a historic step toward effective to protect whistleblowers around the globe, the European Commission published its proposed new European Directive on Whistleblowing this week. The initiative comes after two years of intense political debate in Brussels, fueled by input from both political and civil society stakeholders.For many, the scope of the proposal comes as a very pleasant surprise. While supporters of the Directive had feared that the European Treaties would not provide a basis for whistleblower protection going beyond EU financial interest, the current proposal also covers disclosures of wrongdoing on:

• Protecting the single market

• product safety,

• transport safety,

• environmental protection,

• nuclear safety,

• food and feed safety,

• animal health and welfare,

• public health,

• consumer protection,

• protection of privacy and personal data and security of network and information systems,

• competition.

The proposal also includes a broad definition of workers, including contractors and volunteers, to be protected under the laws introduced in line with the Directive. It provides for the mandatory establishment of reporting channels in all EU Member States, in the public as well as in the private sector. In cases where whistleblowers can expect internal reports to be counterproductive, they have the right to directly report externally, if necessary to the media.

Furthermore, the proposal does not include a motivations test (often used to undermine whistleblowers’ disclosures), requires EU Member States to establish mechanisms that guarantee confidentiality and foresees a broad definition of potential retaliation. The draft includes penalties for retaliators, which are to be defined by the EU Member States. To guarantee effective implementation, the effectiveness of the Directive shall be reviewed at 2 years, and again at 6 years after transposition.

But the proposal has its gaps as well. Since there is no legal basis in EU legislation to consider protection for all disclosures in the public interest, some important areas such as national security or employment law are not covered. The European Commission has tried to counter this with issuing a recommendation accompanying the proposal, calling upon Member States to broaden the scope of protected disclosures in transposition.

Importantly, the proposed Directive does not touch on the issue of anonymous reports. This is likely to result in some Member States transposing the Directive including provisions that limit protection on anonymous reports. In these cases, it may put whistleblowers at risk of exposing their identity. Further, in cases where employees are not willing to take that risk, wrongdoing would not actually be disclosed – even in the areas the current proposal seeks to cover.

Generally, this ambitious proposal constitutes a good set of minimum practices that, if passed, would significantly improve the situation for European whistleblowers.

Now it remains to be seen whether the European institutions can confirm their commitment to fostering democratic principles, transparency and open society as well as social justice by adopting the proposal. In October 2017, the European Parliament had already adopted a report on the matter, whose scope was only a little broader than the Commission’s current proposal. Thus most of what was recommended now appears in the proposal. Now all eyes are on the European Council to adopt the proposal.