EU could still undermine its own objectives on whistleblower protection

06/02/19 – It is now crunch time as the European Commission, the European Parliament and the European Council engage in trilogue negotiations to agree the final text of the EU draft directive on the protection of whistleblowers.

WIN presents, courtesy of Tom Devine, Legal Director of the Government Accountability Project, an analysis of the European Council’s agreed position published on the 29th January 2019. This is what the Council is taking into the negotiations and it is much further away from the European Parliament’s position on the fundamental issue of protecting those who report information directly to competent authorities than we had hoped or can understand.

This Legal Brief explains exactly what the problems are and why enforcing mandatory internal reporting is as bad for business as it is for individuals who want to speak up about wrongdoing, even directly to their employers!

Not only does the European Council retain and reinforce the structural problems of mandatory internal reporting  – originally included by the Commission but removed by Parliament in its proposal! – it has added its own poison pills:

  • restoring vulnerability to obstruction of justice by canceling the clear right to make external disclosures to government authorities immediately;
  • adding an unprecedented subjective test as a prerequisite for the liability shield: the whistleblower not only must prove a reasonable belief of misconduct but also that his or her specific whistleblowing was necessary to reveal it;
  • effectively cancelling the liability shield while adding an unprecedented prerequisite for protected speech — that evidence was lawfully obtained, not just lawfully disclosed. Significantly, this will put the whistleblower on trial in every case, having to win that battle before being able to challenge any retaliation against them for having reported the actual wrongdoing; and
  • finally, by imposing a subjective, unreviewable, open-ended national security loophole giving each nation the option to cancel the Directive’s public freedom of expression rights