A Directive to Protect Whistle-blowers

Less than two years ago, my post was presenting the European Parliament Resolution on the need to protect whistle-blowers at the EU level. The post was commenting, inter alia, on the difficult work that the European Commission had to do on the delicate issue of the protection of whistle-blowers. On 16 April 2019, the European Parliament voted for the Directive and on 7 October 2019, the Directive was approved by the European Council. It will be published in the Official Journal of the EU before Christmas and the transposition should be done by May 2021. The aim of this post is to present some first remarks on this Directive and how it may affect the business sector.

The Directive adopts a broad definition of ‘whistle-blower’, ranging from workers and public servants to contractors and trainees. There are no motives such as good faith and the whistle-blower should only have a reasonable belief that the reported information was true at the time of reporting. He or she should respect the channels for disclosure. The innovation of the Directive is that the whistle-blower should not report internally at first and then to the authorities (as it was the case in different national EU legislations and the case law of the ECtHR) but he or she can choose to report internally or to the competent authorities directly. Despite this innovation, the Directive still encourages internal reporting. Thus, it demands that all institutions in the banking and financial sector—and all the other corporations with more than fifty employees—adopt internal whistle-blowing structures. To that end, it provides detailed rules on how these internal reporting mechanisms should work. Also, it does the same for the competent authorities. Public disclosure (informing the public via media or other platforms) is the last solution for the whistle-blower if the other two reporting channels are not responsive.

The Directive entails important protections for the whistle-blower. He or she should be protected against any type of retaliation in the workplace. In addition, it desires to create a civil, administrative and criminal immunity when a worker is recognised as a whistle-blower under the Directive.  

Nevertheless, the Directive has certain points that may be an obstacle for future whistle-blowers. First, the whistle-blower is required not to commit a self-standing criminal offence at the time he or she acquires the information. It is not certain what this concept is and how should it be applied, bringing the whistle-blower in a weak position as he or she will not know if a criminal offence has been committed or not. Additionally, the whistle-blower should report only breaches of Union law, as enumerated in the Directive. It is up to the Member States to extend the application of the Directive in national law matters. This situation may create tension and uncertainty to the whistle-blower who should be responsible to discern if an issue is related or not to EU law. Moreover, the Directive failed to consider the establishment of a European Whistle-blower Office, responsible for coordinating the implementation of the Directive and a point of help reference for every confused whistle-blower. Finally, the Directive did not consider the establishment of financial rewards or help, as is the case in the US, in order to assist whistle-blowers who may face financial difficulties. 

The adoption of the Directive is a first important step towards a better protection of whistle-blowers at the EU level. There are, certainly, points that need to be reconsidered but this first piece of legislation marks a change of culture towards the image and legal status of whistle-blowers.

Dimitrios Kafteranis is a PhD candidate at the University of Luxembourg and a Junior Academic Visitor at the Commercial Law Center at Harris Manchester College, Oxford.