Written by Ida Nowers, EU Whistleblowing Monitor Law and Advocacy Manager
Two new reports on whistleblower protection analysing the implementation of the 2019 EU Directive on Whistleblowing have highlighted the need for legal reforms across the region.
The publications – from anti-corruption NGO Transparency International (TI) and the Central and Eastern European Law Institute (CEELI) provide key analysis on the state of play of EU governments across the 27 EU Member States, which were required to fully transpose the Directive into their national legal systems by the 17 December 2021.
As of today, 7 November 2023 – nearly two years since the deadline – 25 of the 27 EU Member States have adopted transposition laws, with draft proposals still under consideration in Poland and Estonia. Eight Member States have been referred to the European Court of Justice due to their delays and all are facing significant fines. The official mechanism to analyse compliance –– the EU Commission’s Conformity Study – which examines whether Member States’ new laws meet the minimum standard requirements is currently underway.
Visit: EU Whistleblowing Monitor tool – tracking transposition EU Directive on Whistleblowing
Transparency International’s new report ‘How well do EU countries protect Whistleblowers? Mapping the transposition of the EU Whistleblower Protection Directive” – published today – sheds some light on the state of whistleblower protection in 20 of the 27 EU Member States that have adopted legislation. It finds that 19 out of 20 did not meet minimum requirements as they have interpreted them in at least one of the four key areas.
The report reveals significant disparities in the level of safeguards and support provided for whistleblowers and that amendments to the transposition legislation are needed to bring national frameworks in line with the minimum standard requirements of the Directive.
Another report from the Central and Eastern European Law Initiative – also published this week – “Beyond paper rights: Implementing whistleblower protection in Central and Eastern Europe” summarises current progress in six Member States, highlighting the challenges and opportunities of the transposition process as well as making key recommendations.
KEY FINDINGS
The most striking finding of these new reports is that none of the countries’ whistleblowing laws meet best practice requirements. This is despite repeated calls from experts for EU governments to use the transposition process as an opportunity to go beyond minimum standards.
“The EU Directive was motivated by recognition of the importance of whistleblowers to a democratic society, concern about the mistreatment of these courageous truthtellers, and belief that a better paradigm was possible… The EU Directive was an important step, and the largely concluded transposition process was another,” Pender said. “But the European Union, and the six jurisdictions considered in this report, need to continue progressing to ensure whistleblowers are protected and empowered in exposing wrongdoing and can thereby play a vital democratic role.” – Kieran Pender, author of the CEELI Institute Report.
The reports also found:
- Inadequate Scope: Among the 20 countries, only eight protect whistleblowers reporting a broad range of wrongdoings, limiting the scope of protection.
- Lack of Accessible Advice: Three countries do not provide free and easily accessible advice to potential whistleblowers, leaving them without essential guidance.
- Compensation Discrepancy: Only 15 countries offer full compensation to whistleblowers who suffer damage due to their reporting. Additionally, five countries fail to reinstate whistleblowers in their previous positions, leaving them vulnerable.
- Penalties for Violations: Eight countries lack penalties for various violations of whistleblower protection, such as retaliation, vexatious proceedings, interference with whistleblowing, and breach of confidentiality. In contrast, 19 out of 20 countries establish penalties for knowingly reporting false information – with some countries imposing higher penalties on whistleblowers for this reason than against those who violate the protections for whistleblowers. Such high penalties could in fact stop people from blowing the whistle: for example, in France it is criminalised and punishable for up to five years imprisonment.
- Anonymous Reporting: Only 10 countries require competent authorities to accept and follow-up on anonymous reports, while just nine require public and private organisations to do the same.
- Internal Whistleblowing Systems: Only 10 countries mandate all public entities to implement workplace whistleblowing channels for staff, regardless of their size.
- Penalties for Non-compliance: Sixteen countries impose penalties on organisations that fail to implement internal systems in line with legal requirements.
- Legal and Financial Support: Only seven countries’ whistleblower protection laws provide for legal or financial support for whistleblowers in legal proceedings.
- Independent whistleblowing authorities: Several Member States now have a dedicated whistleblower protection office, including Slovakia’s UOO and the Huis Voor Klokkenluiders in the Netherlands. These bodies are sharing expertise, challenges and best practices through the new Network of European Integrity and Whistleblowing Authorities which is cause for optimism.
- Potential regression: In countries which had pre-existing whistleblower protections, and despite the inclusion of a “non-regression clause” (Article 25) in the EU Directive, there have been complaints that transposition has restricted rather than strengthened rights – for example in Romania, and Ireland.
- Stakeholder consultation matters: There are examples where governments have not engaged in inclusive or transparent consultation with diverse stakeholders which have resulted in legislative proposals that have caused much concern. For example, in Hungary, an earlier Bill referenced examples of violations of “the Hungarian way of life” such as questioning the “constitutionally recognised role of marriage and family” as within the scope of the law resulting in criticism from the EU and others.
Read more: Hungary has finally started transposing the EU Whistleblower Protection Directive and Can transposing the Whistleblower Protection Directive be done on time? Maybe, but not at the cost of transparency and inclusiveness
KEY RECOMMENDATIONS
| Transparency International | CEELI Institute |
| Compliance with Directive: Countries should amend their legislation to ensure compliance with the Whistleblower Protection Directive. | Continuous Legal Reform: CEE nations should reform their laws to meet or exceed the EU Directive’s requirements, considering legislative innovations and ongoing reforms in other regions. |
| Transparent Legislative Process: It’s essential to ensure that the legislative process is prompt, transparent, and inclusive, involving all key stakeholders, including civil society. | Establish Whistleblower Protection Authorities: Governments should commit to the establishment of independent, well-funded whistleblower protection authorities is essential, based on models like Slovakia’s Whistleblower Protection Office. |
| Alignment with Best Practices: Use required reforms as an opportunity to review laws in line with international best practice principles for whistleblower protection. | Empower Civil Society: Civil society organisations should offer low-cost or free legal support to whistleblowers and collaborate with national authorities to ensure effective protection. Governments and national authorities should consider funding civil society to provide legal and non-legal support to whistleblowers and ensure civil society groups are adequately integrated into whistleblowing frameworks. |
CONCLUSION
“Whistleblowers regularly save lives, prevent damages to the environment and help recover millions of euros of much needed public funds that would have been lost to corruption. It is key that policymakers safeguard and empower whistleblowers to come forward to speak up in the public interest” – Marie Terracol, author of the Transparency International Report.
In line with reflections from whistleblowing experts monitoring transposition, these new reports underscore the pressing need for reform of new European whistleblowing laws; to bring protections in line with the Directives own requirements, and international best practice principles for effective whistleblower protection legislation.
A landmark global comparative 2021 study from the International Bar Association looked at whether whistleblowing laws are working, distilling findings into a set of 20 recommended best practice criteria by which to assess the implementation of these whistleblower protection frameworks. By this benchmark, the EU Directive takes joint-first place position, scoring well in 16 out of 20 criteria. This illustrates that EU Member States must take a progressive approach beyond the EU minimum standards to truly reflect best practice standards in whistleblower protection.
An important reminder to all EU Member States is that they are also members of the Council of Europe to whom the Recommendation CM/Rec 2014/7, a legal instrument on whistleblowing applies and which should be considered by these governments when assessing their legislative efforts. Further, the European Court of Human Rights’ jurisprudence on whistleblower protection as part of freedom of expression rights under Article 10 of the European Convention on Human Rights must be taken into account. The landmark Grand Chamber hearing of LuxLeaks whistleblower Raphaël Halet’s case against Luxembourg issued in February 2023 reviews and restates the Court’s criteria for whistleblower protection.
The Whistleblowing International Network joins calls for EU Member States to collaborate with national experts and key stakeholders and start the vital work of reviewing their compliance with the EU Directive and ensuring their laws are implemented in line with international best practice standards.
It is how whistleblowing laws work in practice that matters the most – for society and for the individuals who speak up to protect it!!
NOTES:
The CEELI Institute is an independent, non-profit organisation dedicated to the development and training of a global network of legal and judicial professionals committed to advancing the rule of law. Our efforts are focused on creating independent, transparent, and effective judiciaries, strengthening democratic institutions, fostering efforts to combat corruption, bridging difficult conflicts, promoting human rights, and supporting lawyers and civil society actors in repressive environments. The CEELI Institute is based at the Villa Grébovka, in Prague, a historic nineteenth-century building now renovated into a residence and conference centre.
Transparency International is a global movement with one vision: a world in which government, business, civil society and the daily lives of people are free of corruption. With more than 100 chapters worldwide and an international secretariat in Berlin, we are leading the fight against corruption to turn this vision into reality.