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

 

The Duty Speech Loophole: how the EU Whistleblower Directive could backfire against its own objectives


 
Tom Devine, Legal Director of the Government Accountability Project (a co-founder of WIN) explains that unless a serious “technical contradiction is resolved [the EU draft directive] could backfire against its own objectives, against employers and especially against whistleblowers”. He urges the European Council to avoid violating fundamental global best practices in whistleblowing laws by adopting the precedents of EU member states of Ireland and the Romanian Presidency Romania where no such mandatory internal reporting through designated channels exists.

Reporting internally should be protected easily – organisations should want to learn about any and all potential problems early and promptly with few barriers for staff to speak up safely. However, according to the draft directive, staff will only be protected from retaliation if they use the official channels employers will be required to set up. This misunderstands the essence of all whistleblowing laws to create safe channels for the free flow of information in order to responsibly exercise authority.

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WIN Co-Founder calls on German government to ensure EU Directive “lives up to Europe’s promise of democracy”.

cropped-whistleblower-business-cards3-1311/01/2019 – In a press release yesterday,
WIN Member and co-founding organisation Whistleblower-Netzwerk called upon Germany, as a key member of the European Council to agree on minimum standards for whistleblower protection by February so that robust protection for whistleblowers can be adopted before the European elections in May 2019.

Outlining three minimum standards that would vastly improve legal protections for whistleblowers in the EU, Whistleblower-Netzwerk also challenged the German government to make their stance on whistleblower protection clear and asked whether Germany’s influence in the European Council would once again be used to obstruct progress on the issue.

WIN is committed to making whistleblowing work in Europe and is pleased to support organisations like Whistleblower-Netzwerk who are campaigning for democracy, transparency and accountability – qualities that are absent from the current focus in the European Council on employer security and the safeguarding of trade secrets.

The full statement is reproduced in English below, please visit Whistleblower-Netzwerk for more information, including a copy of the press release in German.

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The European Council must ensure EU delivers on its promise to whistleblowers

The current deliberations of the European Council suggest that the whistleblower protection directive they are considering could risk putting European whistleblowers in more peril, rather than offering them greater protection.

europe_3068260bOn 23 April 2018, the European Commission published a draft law to protect whistleblowers across the EU. A door was flung open that had previously been locked shut. Like our members and associates in the whistleblower protection community, the Whistleblowing International Network (WIN) welcomed the fact that EU was finally moving to provide a solid statutory basis on which member states would have to protect whistleblowers. But on a second look, it turned out the draft directive made basic but fundamental mistakes. It is from these errors that we have all been scrambling to recover.

Fortunately, JURI, the legal affairs Committee of the EP, the lead parliamentary committee in charge of responding to the draft rose to the challenge and did a lot to improve and strengthen the whistleblower protection draft. If all the Committee’s amendments are adopted, the EU will have a strong foundation for protecting whistleblowers and protecting the public interest for years to come.

However, the main mistake, which the EU Council seems set to embrace, is that the draft reinforces employer control over the reporting of wrongdoing. It does so by making it a requirement for all those in a work-based relationship to report their concern to their employer first. With a three-month imposed time-lag and a requirement to use the channels employers set up, it is akin to legislating an obstruction of justice.

The vast majority of all whistleblowers stay in-house trying to do their jobs and ensure their organisations fulfil their roles responsibly. But those who perceive the need to go straight to the authorities should not, under any circumstances, have to guess whether a court would agree they were reasonable thinking that sharing their evidence with alleged wrongdoers would enable cover ups. This is the exactly the risk that a whistleblower protection law should help alleviate.

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