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European Whistle-blower Directive: Draft for consultation
Ending date: 13.11.2016
Whistleblowing is one the most effective ways of preventing, uncovering and remedying wrongdoing, as demonstrated by recent scandals uncovered by whistle-blowers, such as illegal mass surveillance, industrial scale tax avoidance or the sexual abuse of children by peacekeepers. According to a recent study analysing more than 2400 cases of fraud in 114 countries, about 40 per cent of all detected fraud cases are uncovered by whistle-blowers.
Despite the fact that whistleblowing can be essential for protecting the public interest and for maintaining accountability and integrity in both the public and private sectors, whistle-blowers who speak up do so at high personal risk, and often suffer great professional and personal costs, which can include civil or criminal prosecution.
The need to ensure legal protection and support to whistle-blowers has been acknowledged by international organisations to which all or most EU countries are parties, including the United Nations Convention against Corruption (entered into force in 2005), the Council of Europe Civil Law Convention (2002) and the Council of Europe Criminal Convention (2002). Whistleblowing is also recognised as a form of protected free speech in the case law of the European Court of Human Rights.
However, recent evaluations of the status of whistle-blower protection in the EU member states – including the OECD and NGOs such as Transparency International and Blueprint for Free Speech – reveal a situation that leaves much to be desired. Where protection exists, provisions tend to be scattered across different laws, with some member states having regulated some level of protection in anti-corruption laws, others in public service laws, and again others in labour, criminal and sector-specific laws, leaving significant legal loopholes and gaps and causing potential conflicts between different laws. As a consequence, whistle-blowers across EU Member States enjoy uneven levels of protection, or in six countries, no protection at all.
EU legislation on whistleblowing protection may only be adopted if there is a legal basis for such action in the Treaties, and its scope must be consistent with the chosen legal basis. To take the discussion on a possible EU legislation on whistle-blower protection to the next level, we propose a whistle-blower directive that is based on Article 4(2)(b) in conjunction with Articles 151 and 153(2)(b) TFEU, which aim at protecting working conditions.
Noting that we see also other potential lines of legal argument to ground legislative action on whistle-blower protection, we argue that Articles 151 and 153(2)(b) TFEU provide a clear and unambiguous basis for EU legislative action to empower employees to report wrongdoing in a framework that provides legal certainty and a common minimum level of legal protection for workers throughout the Union. After all, although the hardships that whistle-blowers tend to face are multifaceted, they almost always start at the workplace.
- Protected disclosures concern harms or threats to the public interest that have occurred, are occurring at the time of the disclosure, or are likely to occur, and can be made, alternatively or cumulatively, internally within the workplace, or externally, to the competent authorities, parliamentarians and oversight agencies, as well as to trade unions and employers’ associations, or to the public through the media, including social media, or non-governmental organisations.
- Requirements are set for the independent and timely investigation of whistle-blower reports, for the protection of confidentiality throughout the procedure, for the protection of the identity of whistle-blowers who disclose information anonymously, and for securing the rights of the persons implicated.
- Protections include exemptions from criminal proceedings related to the protected disclosure, including but not limited to prosecution for the disclosure of classified information, trade secrets or otherwise confidential information, exemptions from civil proceedings and disciplinary measures, and prohibitions of other forms of reprisal, including inter alia dismissal, demotion, withholding of promotion, coercion, intimidation, etc.
Proposal for a
DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL
Establishing minimum levels of protection for whistle-blowers
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