The EU Directive on Whistleblowing adopted in late 2019 requires high-level minimum standard whistleblower protection frameworks be implemented across all EU Member States, signifying a landmark shift in whistleblowing law and practice across Europe.
The EU Whistleblowing Monitor is a collaboration of WIN, Transparency International, and Eurocadres, which tracks the process of transposition in all 27 countries. Over 30 country editors are monitoring developments in real time - sharing information and advocacy tools. Whilst progress has been slow, a new Law in Denmark and an ambitious Bill registered in Parliament in France mark the start of an anticipated flurry of whistleblowing law-making, as EU governments try to meet the end of year deadline.
Denmark – first to transpose?
Last month, Denmark became the first Member State to introduce legislation to transpose the Directive. The new Law - 'Lov om beskyttelse af whistleblowere' - was adopted on the 24 June and is due to come into effect on the 17 December 2021.
WIN and TI’s joint report on transposition, published midway through the two-year timeframe for completion found Denmark had only made limited progress; despite starting early, the initial process was “opaque, but not inclusive” with only selected stakeholders invited to meet and feedback on a proposal which had not been made publicly available.
However, by the end of February 2021, the Ministry of Justice had launched a formal stakeholder consultation - requesting feedback from a wide and diverse list of over 90 stakeholders, including business associations, academia, employer representatives, trade unions, and NGOs.
Published responses on the draft proposal highlight the diversity of opinion as to the approach policy makers should take when setting the scope of a transposition law; whether to minimally transpose the Directive verbatim, or opt for more comprehensive provisions which go beyond the minimum requirements.
In some aspects the new Danish law has followed recommendations from civil society to go further than the minimum standards, whilst in others those advocating for more progressive provisions may be left disappointed. Transposition in any Member States will not officially be completed until analysis of the EU Commission.
Importantly, the law expands the ‘material scope’ of the Directive to protect reports of breaches of national law and serious malpractice such as bribery and corruption, as well as complaints of sexual harassment. Policy makers in other countries still opting for a verbatim transposition, which would only protect reports of breaches of EU law, should be taking note on Denmark’s more responsible approach - WIN experts will continue to advocate against the legal absurdity a hybrid system the minimal approach will create.
Lawmakers however chose not to go further, by:
- Not mandating organisations to address anonymous reports
- Not protecting reports of matters of national security
Read more: The global principles on national security and the right to information (Tshwane principles)
WIN looks forward to hearing more how local experts and civil society respond to the new law and hopes that it is properly implemented to protect all public interest whistleblowers in Denmark.
France - an ambitious Bill
Last week, a new whistleblowing Bill
was introduced in Parliament. The Bill
was filed in the office of the National Assembly by Member of Parliament Sylvain Waserman (Modern group) previously the rapporteur on whistleblowing at the Parliamentary Assembly of the Council of Europe (PACE.)
Read more: ‘Improving the protection of whistleblowers all over Europe’ - 2019 PACE Report
The proposal would address the main shortcoming of the current law in France, known as ‘Sapin 2,’ which requires reform to meet the Directive’s requirements, introducing provisions which go beyond the minimum standards . Key changes include:
- Removing the need for whistleblowers to act disinterestedly (or ‘in good faith’)
- Expanding immunities from criminal prosecution of whistleblowers
- Reinforcing sanctions for retaliation with up to 3 years imprisonment
A separate accompanying Bill proposes to strengthen the power of the Defender of Rights to receive whistleblowing reports and to monitor implementation of the new framework.
WIN Member NGO Maison des Lanceurs D’alerte is calling for the government and parliamentarians to support the Bill but continue to campaign for improvements to bring the proposal in line with international consensus on best practice principles:
“By choosing an ambitious transposition, this Bill responds to many demands of the House of Whistleblowers and constitutes a strong signal sent to whistleblowers as well as to the organizations that support them.”
A new tradition? Civil society whistleblowing legislation
Much expertise on whistleblowing law and practice exists amongst the practitioners who work directly with whistleblowers and can use that hard-won experience to lobby for stronger protections which are effective in practice. A tradition of civil society experts proactively drafting and promoting legal text is continuing - in Spain, WIN experts and associate Xnet developed a draft legal text, which was the first formally registered law to transpose the Directive in the Spanish legislature.
Read more: Xnet, a case study: the role of civil society in building the framework for whistleblower protection
The important work of analysing proposals as they become available, and advocating for governments to take their responsibilities to protect whistleblowers seriously by using transposition as an opportunity to meet international best practice is now underway.
Notably, the recent high-profile case of UK citizen whistleblower Jonathan Taylor, arrested on a family holiday and stuck in Croatia for nearly a year, facing extradition to Monaco to answer complaints made by his former employer, whom he worked for in the Netherlands, highlights the need for cross-border coordination of protection measures, on which the Directive remains largely silent.
WIN is pleased to see a growing number of integrity and whistleblowing authorities meeting and sharing experience on implementing effective whistleblower protection - the NEIWA have published key recommendations on transposition for policy makers, however it’s collaboration remains largely informalized to date.
Read more: WIN’s EU Series where we break down how the Directive on whistleblowing should be implemented and pick-up on loopholes and other key areas of concern.