EU Law update: Common European rules to protect whistleblowers - provisional agreement reached

These new rules, setting EU-wide standards of protection for whistleblowers, were first proposed by the European Commission in April 2018, making this one of the fastest legislative procedure of the legislature. It seems the mood at national and European level has changed with regards to whistleblowers: for many years civil societies and consumers associations, like Transparency International and BEUC, had been demanding action from the Commission, with no success.

Věra Jourová, Commissioner for Justice, Consumers and Gender Equality said: “Dieselgate, the Panama Papers and Cambridge Analytica revelations made us realise how whistleblowers help uncover unlawful activities that damage both the public interest and our general welfare. We must support and protect the courageous people who bring illegal activities to light”

The new rules cover a wide reach of areas of EU law, including anti-money laundering and corporate taxation, data protection, protection of the Union’s financial interests, food and product safety and environmental protection and nuclear safety. It is to be noted, as Commissioner Timmerman remarked, that Member States are free to extend these rules to other areas and the Commission encourages them to establish comprehensive frameworks for whistleblower protection based on the same principles.

The European Parliament managed to retain the possibility for a whistleblower to go public without having to follow internal procedure first, as business would have liked.

The main points of the new legislation are:

• Clear reporting procedures and obligations for employers: the new rules will establish a system of safe channels for reporting both within an organisation and to public authorities.
• Safe reporting channels: whistleblowers are encouraged to report first internally, if the breach they want to reveal can be effectively addressed within their organisation and where they do not risk retaliation. They may also report directly to the competent authorities as they see fit, in light of the circumstances of the case. In addition, if no appropriate action is taken after reporting to the authorities or in case of imminent or manifest danger to the public interest or where reporting to the authorities would not work, for instance because the authorities are in collusion with the perpetrator of the crime, whistleblowers may make a public disclosure including to the media. This will protect whistleblowers when they act as sources for investigative journalism.
• Prevention of retaliation and effective protection: The rules will protect whistleblowers against dismissal, demotion and other forms of retaliation. They will also require from national authorities that they inform citizens about whistleblowing procedures and protection available. Whistleblowers will also be protected in judicial proceedings.

The final legal text has not been published yet, but there are reports that the Council’s text has been maintained, which means that the protection of professional secrecy/ LPP is also included in an article, and not only in a recital, as asked by the European Association of Bars and Law Societies (CCBE).