Annexes to COM(2018)214 - Strengthening whistleblower protection at EU level

Please note

This page contains a limited version of this dossier in the EU Monitor.

dossier COM(2018)214 - Strengthening whistleblower protection at EU level.
document COM(2018)214 EN
date April 23, 2018
agreement has been reached on 13 March 2018.

28 Proposal for a Directive of 12 April 2016 amending Directive 2013/34/EU as regards disclosure of income tax information by certain undertakings and branches,

COM/2016/0198 final - 2016/0107 (COD).

laundering rules ensuring that tax authorities have access to vital information allowing them to clamp down on tax evasion and avoidance through offshore funds29 and (ii) wider efforts to create a fairer corporate tax environment within the EU30.

Strong whistleblower protection in areas like product safety, public health and consumer protection, transport safety, environmental protection, nuclear safety, food and feed safety, animal health and welfare, protection of privacy and personal data and security of network and information systems, will contribute to the effective implementation of a range of further policies with direct impact on the completion of the single market and which directly affect the daily lives and the welfare of all Europeans.

A common high level of protection for people who report breaches of EU rules in the context of their work will raise the protection of workers, including workers' health and safety, in line with the Commission’s aims, pursued in particular through the European Pillar of Social Rights31. Protection will extend to all those who are at risk of work-related retaliation when they speak up, including employees, self-employed people, freelancers, contractors, and suppliers, as well as volunteers and unpaid trainees. Protection will also be ensured for whistleblowers in cross-border situations, who, due to current differences between national rules, risk ‘falling through the cracks’ and suffering retaliation for seeking to protect the public interest.

Workplace culture in general should benefit from having effective channels for whistleblowing reports and from potential whistleblowers being reassured that it is safe and acceptable for them to speak up. Rules on whistleblower protection would run parallel to existing EU rules: (i) on equal treatment, which protect against victimisation in response to a complaint or to proceedings to enforce compliance with this principle32 and (ii) on protection against harassment and safety and health at work33, where workers are entitled to raise issues with the competent national authorities if they consider that measures taken are inadequate to ensure safety and health and may not be placed at a disadvantage for it.

3. A framework for effective protection of whistleblowers in the EU

29  Proposal for a Directive amending Directive (EU) 2015/849 on the prevention of the use of the financial system for the purposes of money laundering or terrorist financing and amending Directive 2009/101/EC, COM(2016) 450 final 2016/0208 (COD).

30  Council Directive (EU) 2016/1164 of 12 July 2016 laying down rules against tax avoidance practices that directly affect the functioning of the internal market (as amended); Proposal for a Directive on a Common Consolidated Corporate Tax Base, COM/2016/0683 final — 2016/0336; Proposal for a Directive on a Common Corporate Tax Base, COM/2016/0685 final — 2016/0337.

31    Particularly principles 5 (fair working conditions) and 7b (protection in case of dismissals) https://ec.europa.eu/commission/priorities/deeper-and-fairer-economic-and-monetary-union/european-pillar-social-rights/european-pillar-social-rights-20-principles_en.

32 Directive 2006/54/EC of 5 July 2006 on the implementation of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation (recast); Directive 2004/113/EC of 13 December 2004 implementing the principle of equal treatment between men and women in the access to and supply of goods and services; Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation; Council Directive 2000/43/EC of 29 June 2000 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin.

33 Directive 89/391/EC of 12 June 1989 on the introduction of measures to encourage improvements in the safety and health of workers at work OJ L 183, 29.6.1989, p. 1; Autonomous framework agreements signed by the European social partners on 26 April 2007 on harassment and violence at work and on 8 October 2004 on work-related stress.

The Commission’s proposal for a Directive sets out minimum standards for whistleblower

protection in areas with a clear EU dimension and where the impact on enforcement is the strongest. Effective whistleblower protection is needed to improve enforcement of Union law in areas where:

• breaches of EU law may cause serious harm to the public interest;

• a need to strengthen enforcement has been identified; and

• whistleblowers are in a privileged position to disclose breaches.

The proposal therefore focuses on whistleblowers reporting on unlawful activities or breaches of Union law in the areas of: (i) public procurement; (ii) financial services, prevention of money laundering and terrorist financing; (iii) product safety; (iv) transport safety; (v) environmental protection; (vi) nuclear safety; (vii) food and feed safety, animal health and welfare; (viii) public health; (ix) consumer protection; (x) protection of privacy and personal data and security of network and information systems. It also applies to breaches relating to

Union competition rules, breaches harming the EU’s financial interests and, in view of their

negative impact on the proper functioning of the internal market, to breaches of corporate tax rules or arrangements whose purpose is to obtain a tax advantage that defeats the object or purpose of the applicable corporate tax law.

To ensure that the scope of the Directive remains up to date, the Commission will pay special attention to the possible need, in any future Union act where whistleblower protection is relevant and can contribute to more effective enforcement, to extend its scope to further areas or Union acts. This will also be given consideration when the Commission reports on implementation of the Directive.

The minimum standards in the proposed Directive aim for consistently high whistleblower protection across the EU. They aim to ensure that:

• potential whistleblowers have clear reporting channels available to report both internally (within an organisation) and externally (to an outside authority);

• when such channels are not available or cannot reasonably be expected to work properly, potential whistle blowers can resort to public disclosure;

• competent authorities are obliged to follow up diligently on reports received and give feedback to w histle b lowers;

• retaliation in its various forms is prohibited and punished;

• if whistlebl owers do suffer retaliation, they have easily accessible advice free of charge, they have adequate remedies at their disposal e.g. interim remedies to halt ongoing retaliation such as workplace harassment or to prevent dismissal pending the resolution of potentially protracted legal proceedings; reversal of the burden of proof, so that it is up to the person taking action against a whistleblower to prove that it is not retaliating against the act of whistleblowing;

These minimum standards also provide for safeguards to:

• protect responsible whistl eb lowing genuinely intended to safeguard the public interest;

• proactively discourage malicious whi stlebl owin g and prevent unjustified reputational damage;

• fully respect the rights of defence of those concerned by the reports.

In particular:

whistleblowers qualify for protection if they had reasonable grounds to believe that the

information reported was true at the time of reporting;

whistleblowers are generally required to use internal channels first; if these channels

do not work or could not reasonably be expected to work, for instance where the use

of internal channels could jeopardise the effectiveness of the investigative actions by

the competent authorities, they may report to these authorities, and then to the

public/media, if no appropriate action is taken or in particular circumstances, such as

imminent or manifest danger for the public interest;

Member States shall provide for proportionate sanctions to dissuade malicious or

abusive reports or disclosures;

those concerned by the reports fully enjoy the presumption of innocence, the right to

an effective remedy and to a fair trial, and the rights of defence.

Supporting and other measures at EU level

In addition to the minimum standards in the proposed Directive, the Commission is supporting effective whistleblower protection through other measures.

As part of its action to defend journalists and media freedom, and at the initiative of the European Parliament, the Commission is currently co-funding projects run by the European Centre for Press and Media Freedom. The projects provide practical and legal help to journalists under threat and training in digital self-defence for journalists. Since February 2018, they include a funding scheme for cross-border investigative journalists34. The Commission also funds the Media Pluralism Monitor, a project measuring risks to media pluralism in the EU, using indicators such as protection of freedom of expression, journalistic standards and protection of journalists35.

Through its anti-corruption experience-sharing programme36, the Commission has also been facilitating exchanges of best practice across the EU and funding projects enabling whistleblowers to benefit from better information about their legal rights and obligations, gain access to safe and reliable channels to report wrongdoing, and receive adequate organisational support. For example, one of the priorities of the current call for proposals under the ‘Internal Security Fund Police’ on preventing corruption is to promote tools for civil oversight and investigative journalism and for assisting whistleblowers with technical and legal aid37. The Commission will also continue to monitor Member States’ efforts to fight corruption, including whistleblower protection, as part of the European Semester.

As part of its strategy for effective enforcement of EU rules38, the Commission considers that the European Network of Ombudsmen plays an important role. This network is coordinated by the European Ombudsman and brings together national and regional Ombudsmen to

34 Under a Parliament preparatory action on cross-border investigative journalism, EUR 1 million was allocated to the European Centre for Press and Media Freedom to carry out these activities. The project started on 1 February 2018.

35 http://cmpf.eui.eu/media-pluralism-monitor/

36http://ec.europa.eu/dgs/home-affairs/what-we-do/policies/organized-crime-and-human-trafficking/corruption/experience-sharing-programme/index_en.htm

37 https://ec.europa.eu/research/participants/portal/desktop/en/opportunities/isfp/topics/isfp-2017-ag-corrupt.html

38   Communication ‘EU Law: Better Results through Better Application’, cited above.


promote good administration in the national application of EU law. The members of this Network could handle, according to their competence, complaints in cases of maladministration for failure to act upon whistleblower reports, namely in cases where reports by whistleblowers did not trigger a proper investigation and follow-up at national level. The European Ombudsman could draw a report on the information that Network's members may provide to it regarding activities and inquiries on whistleblower protection and forward that report to the Commission and the Parliament.

The Commission will also support Member States in transposing the Directive, so as to ensure as much consistency as possible. The Commission will meet bilaterally with Member State authorities to discuss issues arising at national level and provide a platform where they can exchange information on transposition and share experiences and expertise.

4. Member State measures

Towards comprehensive whistleblower protection in Member States

Whistleblower protection brings value added when it comes to better enforcement of EU law in certain areas, but its benefits for protecting the public interest are wider and also extend beyond the realm of EU law. This is why many Member States have introduced national frameworks for whistleblower protection. An effective, comprehensive approach to whistleblower protection requires legal certainty and a consistent approach to, for instance, combat fraud, corruption and other unlawful activities affecting public budgets, including national funds. In the lead-up to the adoption of the proposed Directive, the Commission encourages Member States to apply the Council of Europe’s principles in its Recommendation cited above and the European Court of Human Rights case-law on the right to freedom of expression. These, together with the principles set out in the proposed Directive, can serve as a common framework for those Member States who intend to ensure, in a broadly consistent way, the effective protection of whistleblowers also beyond the areas covered by the proposal.

Comprehensive and consistent national rules on whistleblower protection bring a number of benefits:

• They enhance accountability, transparency and good governance, and aid the fight against corruption.

• They benefit the investment climate and increase trust in public institutions.

• They give citizens the necessary clarity and legal certainty on the protection available, reassuring potential whistleblowers and encouraging them to come forward.

Awareness raising

Experience at national level and available evidence show that rules on whistleblower

protection also need to raise awareness effectively. In addition to adopting the proposed

Directive, the Commission encourages Member States to consider further measures including

practical ones, such as raising awareness and general public information. The aim would be

to:

• promote a positive perception of whistleblowers as people acting for the public good and out of loyalty to their organisation and society; and

• provide general information about available report ing channels and protecti on

Effective whistleblower protection on the ground may also benefit from more targeted, tailor-made measures. Inspiration may be drawn from existing international standards and

recommendations40

and from measures taken in different national contexts.

Guidance for the work context

Employees of public and private organisations and all other categories of people who come in contact with such organisations in their work need user-friendly information on the rules so that they understand their meaning and practical implications41. A public and easily accessible list of authorities indicating which authority is best placed to handle a specific issue in view of its role and mandate may also increase the legal certainty of potential whistleblowers42.

Guidance to employers in both public and private organisations can help them understand their rights and responsibilities when setting up and running reporting procedures, handling and investigating reports and preventing and addressing retaliation43.

Even where law, policies and guidelines exist, potential whistleblowers may have questions about how these might apply to their specific case. Advisory and support services to whistleblowers may be provided by independent public authorities44 or by civil society45 and trade unions, possibly for free or with public support.

Support to business, in particular small and medium-sized companies

Guidance for business and industry can make the business case for whistleblowing in terms of preventing and addressing damage to reputation and performance. Codes of good practices can help instil a consistent level of best practice across organisations and help businesses

40  E.g., in addition to the Council of Europe Recommendation on Protection of Whistleblowers, the OECD (2016) Report Committing to Effective Whistleblowers Protection http://www.oecd.org/corporate/committing-to-effective-whistleblower-protection-9789264252639-en.htm, the UN Resource guide on good practices in the protection      of      reporting      persons      https://www.unodc.org/documents/corruption/Publications/2015/15-04741_Person_Guide_eBook.pdf; the G20 Compendium of best practices and guiding principles for legislation on the protection of whistleblowers https://www.oecd.org/g20/topics/anti-corruption/publicationsdocuments/2/; the Transparency International ‘International Principles for Whistleblower Legislation’ (2013), the 2003 OECD Recommendation on Guidelines for    Managing    Conflict    of    Interest    in    the    Public    Service http://www.oecd.org/development/governance-development/33967052.pdf and the ‘Best practice guide for whistleblowing legislation (2018) https://www.transparency.org/whatwedo/publication/ international_principles_for_whistleblower_legislation.

41  E.g. the UK Government Whistleblowing ‘Guidance for employees’ https://www.gov.uk/whistleblowing; Ireland’s Industrial Relations Act 1990 (Code of Practice on Protected Disclosures Act 2014) for employers, workers and their representatives http://www.irishstatutebook.i.e./eli/2015/si/464/made/en/print.

42 E.g. ‘Whistleblowing: list of prescribed people and bodies’ in the UK https://www.gov.uk/whistleblowing

43 E.g. the Code of Practice on Protected Disclosures Act 2014 in Ireland, cited above, and the UK Government

Whistleblowing ‘Guidance and code of practice for employers’ https://www.gov.uk/whistleblowing.

44 Such as the Défenseur des Droits in France or the Whistleblowers Authority in the Netherlands.

45  Examples include the whistleblowing charity Public Concern at Work in the UK and T International, which operates Advocacy and Legal Advice Centres across the world.

create whistleblowing policies adapted to organisation size46. Such codes have been developed internationally47 and in national contexts, by private48 and public actors49.

SMEs setting up and/or managing reporting channels may need financial, technical or other practical support. Member States could, for instance, entrust a body with the task of providing reporting channels for such businesses50. SMEs may also be encouraged to pool their resources to share (external) confidential counsellors and investigative capacity. Employer organisations and trade unions, sector-specific associations, umbrella and professional organisations may also be encouraged to provide support by taking on and centralising the role of providing persons of confidence/legal experts to provide advice, receive reports and even carry out investigations.

Guidance to staff of national authorities

Guidance may also benefit staff at national authorities receiving and handling whistleblower

reports. Such authorities may range from tax authorities to regulatory agencies on

environmental protection and food safety. Guidance can help them understand their role and

responsibilities in their specific fields, and provide them with good practice beyond the legislation51.

Training

Dedicated staff within competent authorities receiving and handling reports clearly need appropriate training52. Public officials may also benefit more generally from training as part of induction and on-the-job training courses on integrity standards53. Guidance for the private sector could also set minimum training standards for organisations and give employers a responsibility to properly promote the policy among employees54. Training for judges and

46 E.g. the practical guide to SMEs by the French Business Confederation MEDEF on how to meet obligations under French law on whistleblower protection, including on setting up internal reporting channels http://www.medef.com/uploads/media/node/0001/13/7365147ef346ac642e4b03566a9b94306eee839f.pdf;.

47   E.g. the Anti-corruption ethics and compliance handbook for business by OECD, UNODC and the World Bank (2013) http://www.oecd.org/corruption/Anti-CorruptionEthicsComplianceHandbook.pdf      International Chamber of Commerce guidelines on whistleblowing. (2008) https://iccwbo.org/publication/icc-guidelines-on-whistleblowing/ and the OECD Guidelines for Multinational Enterprises       (2011) https://www.oecd.org/daf/inv/mne/oecdguidelinesformultinationalenterprises.htm.

48 E.g. the Whistleblowing arrangements Code of practice developed by Public Concern at Work in collaboration with     the     British     Standards     Institution     (2008)     https://uk.practicallaw.thomsonreuters.com/0-386-5339?transitionType=Default&contextData=(sc.Default)&firstPage=true&bhcp=1

49 E.g. the Practical guides related to Integrity in Practice by the Dutch Whistleblowers Authority, specifically ‘The reporting procedure’ and ‘Towards an ethical culture’ https://huisvoorklokkenluiders.nl/whistleblowers-authority-huis-voor-klokkenluiders-english/; and the UK Whistleblowing ‘Guidance and code of practice for employers’, cited above.

50 Paragraph 62 of the 2014 Council of Europe Recommendation on Protection of Whistleblowers cited above.

51  E.g. UK Prescribed Persons guidance and Ireland: Guidance for the purpose of assisting public bodies in the performance of their functions.

52  Ireland has made it possible for public bodies to get training on how to deal with protected disclosures https://irl.eu-supply.com/app/rfq/publicpurchase.asp?PID=112518

53     See     OECD     Recommendation     on     Public     Integrity     (2017)     http://www.oecd.org/gov/ethics/ Recommendation-Public-Integrity.pdf

54  See recommendation by Transparency International in the 2018 ‘Best practice guide for whistleblowing legislation’ cited above.

legal practitioners may be particularly important to ensure effective implementation of the legislation.

5. Conclusion

Robust whistleblower protection would enrich the EU toolkit for strengthening the correct application of EU law and respect for transparency, good governance, accountability and freedom of expression, which are values and rights on which the EU is based.

The Commission is proposing a balanced set of measures at EU level in specific areas with a clear EU dimension and where the impact on enforcement is the strongest, whistleblower reports are infrequent and undetected violations of EU law may result in serious harm to the public interest. A balanced approach is also ensured in terms of limiting the burden for national authorities and business, particularly small and micro companies. Finally, the proposed Directive strikes a balance between the need to protect whistleblowers and those who are concerned by the reports, to avoid abuses.

The introduction of whistleblower protection rules at EU level would contribute to protecting the financial interests of the Union and to ensuring the level playing field needed for the single market to properly function and for businesses to operate in a fair competitive environment.

While at EU level, in line with the principle of subsidiarity, the proposed Directive establishes whistleblower protection measures targeted to the enforcement of Union law in specific areas, the Commission encourages the Member States, when transposing the Directive, to consider extending its scope of application to other areas, and more generally to ensure a comprehensive and coherent framework at national level.

A comprehensive approach is indispensable in order to recognise the whistleblowers’ significant contribution to preventing and tackling unlawful conducts harming the public interest, and to ensure they are properly protected across the EU. Protecting whistleblowers merits the full commitment and joint efforts of all EU institutions, Member States and stakeholders.