WIN is offering these Legal Briefs to all those interested in making whistleblowing work for Europe. They were developed with the expertise of Tom Devine, Legal Director of the Government Accountability Project in Washington DC, a co-founding member of WIN and Anna Myers, Executive Director of WIN.
They are based on 40 years of experience defending whistleblowers through the courts and in the public domain and advising governments around the world on the legislative reform needed to protect those who speak up in the interests of others.
Right now, the EU is going through the process of debating and amending a draft directive to protect whistleblowers across Europe. We want to help the policy makers and legislators to get it right!
Our Legal Briefs focus on the significant problem of mandatory internal reporting which renders the entire draft directive structurally unsound; the need to remove the mandatory penalties for malicious and abusive reporting, a potentially fatal flaw which will substitute worse retaliation with a greater chilling effect than current job-based harassment; the necessity to get right the legal burdens of proof to give whistleblowers a fighting chance to succeed in seeking justice; the importance of protecting those who initially who raise concerns anonymously, and the need to ensure available remedies are adequate to buffer whistleblowers from the damage of a sustained professional and personal campaign to discredit them. There are also some important elements missing in the draft directive such as a duty to prevent harm and the need to train judges on whistleblower laws.
An EU Directive on whistleblower protection is vital to provide equal protection to whistleblowers in each EU member state and ensure that a whistleblower can go directly to anyone who has the authority to deal with a problem in any country. This means that whistleblowers must be able to by-pass the management line within their organisations and, like any other EU citizen, go directly to the regulatory or law enforcement authorities in any country to ensure that harm can be averted or stopped and wrongdoers held to account. The law must recognise that whistleblowing is a voluntary act of citizenship and protect those who speak up in the course of their work – whether or not they do so via an employer-implemented whistleblower arrangement.
If the current draft is not significantly amended to ensure that information can flow properly to those in authority to address a problem and the public’s right to know is embraced and reinforced as an democratic right, then the EU draft directive risks turning back the clocks and undermining all the progress made so far in providing Europe with a legal foundation that gives whistleblowers a fighting chance to survive when they speak up in the public interest.
Please see WIN Memorandum 1 for WIN’s legal assessment of the draft directive and WIN Memorandum 2 for our response to Rapporteur Virginie Rozière’s amendments.
17th October 2018