On 23rd April 2018, the European Commission presented a Directive for the Protection of Whistleblowers in public authorities and companies. In doing so, the Commission reacted to the long-term demand of civil society organisations and the European Parliament, basing itself also on a recommendation of the Council of Europe. The Commission Proposal comprises a three tier reporting system, feedback obligations for public authorities and companies as well as the reversal of the burden of proof in case of retaliatory measures.
The highly charged revelations of the past years demonstrate the important role, which today's whistleblowers are playing in respect of removing social injustices: for example in case of the Panama Scandal (2016), in which more than 21,000 (bogus) companies were involved in tax evasion worldwide, or in respect of current revelations concerning the “Cambridge-Analytica Scandal”, which is about the gross misuse of Facebook data. In both cases, information provided by individual whistleblowers was decisive for the revelation. However, cases such as the conviction of the whistleblowers in the “Lux-Leaks Scandal” (2014) or the attacks on investigative journalists on Malta and in Slovakia show that whistleblowers risk their existence and even their life to act in the public interest.
So far, only 10 of 28 Member States have adopted comprehensive protection regimes. Other Member States have only regulated certain aspects and included for example certain groups (e.g. civil servants) or sectors (e.g. financial industry). The Commission Proposal shall create a level playing field and increase legal certainty for whistleblowers across Europe. However, the Commission advises Member States to go beyond the proposed minimum standards. Included in the right to report shall not only be people employed by companies or public bodies, but this shall in particular also apply to interns, self-employed people or contractual partners in the environment.
The Directive proposal provides for a three-tier complaints procedure: companies with 50 or more employees or 10 million Euro turnover or communities with more than 10,000 residents have to set up an internal reporting system, which can be used as a first instance. Financial services companies – independent of their size – are obliged to set up such a system in any case. This internal system has to provide whistleblowers with an answer within three months and, should the need arise, contact the national reporting office. If internal channels do not work, incidents can be reported directly to the relevant public bodies. A third reporting channel - provided no suitable measures can be taken via the other two channels - would be informing the public via the media. Any retaliatory measures against whistleblowers are prohibited and shall be penalised; in this case the burden of proof shall apply.
However, the Directive proposal only includes a right to report in case of breaches of law in certain sectors of European law: included are in particular public procurement, tax evasion and unfair competition, financial services, public health, environmental and consumer protection or issues concerning product, food and transport safety. So far not included are infringements against labour rights, misconduct within the scope of trade agreements, with regard to the migration and asylum system and in case of external affairs. Even though the German Whistleblower Network in general welcomes the proposal, it nevertheless sees the danger that rising legal certainty in legally covered areas might reduce legal certainty in non-covered areas. Transparency International too welcomes the initiative as a strong step in the right direction.
The now commencing legislative procedure between European Parliament and Council will decide the realisation and the exact formulation of the Directive. It is possible to provide Feedback on the new Initiative until 21st June 2018.