The EU is taking steps to guarantee a high level protection to whistle-blowers across a wide range of sectors.
EU member states ambassadors confirmed today the agreement reached on Monday 11 March by the Romanian presidency and Parliament negotiators on the directive on the protection of whistle-blowers.
The new rules will require the creation of safe channels for reporting both within an organisation -private or public - and to public authorities. It will also give a high level of protection to whistleblowers against retaliation, and require national authorities to adequately inform citizens and train public officials on how to deal with whistleblowing.
"Whistleblowers are important for a well functioning democratic system based on the rule of law. That is why we need to provide them with a high level of protection across the Union. We should not expect anyone to risk their reputation or job for exposing illegal behaviour."
Tudorel Toader, Romanian Minister for Justice
Main elements of the compromise
The main elements of the compromise include:
- Reporting system: whistle-blowers will be strongly encouraged to use first internal channels within their organisation before calling on external ones set up by public authorities. This will contribute to the development of a healthy corporate culture in companies of over 50 employees or municipalities of more than 10 000 inhabitants, where there will be an obligation to create effective and efficient reporting channels. In any event, whistle-blowers will not loose their protection in case they decide to turn directly to external channels;
- Persons protected by the new rules: the position of the Council was preserved. Persons protected include a large number of profiles who could acquire information on breaches in a work-related context. e.g. workers, including civil servants at national/local level, volunteers and trainees, non executive members, shareholders, etc.
- Scope of application: the compromise foresee a wide scope in line with the Council's position. It covers areas such as public procurement, financial services, prevention of money laundering, public health, etc. For legal certainty, a list of all EU legislative instruments covered is included in annex of the directive. Member states may go beyond this list when implementing the new rules.
- Support and protection measures for whistleblowers: Both institutions have agreed on a list of what can be considered to be a form of retaliation and which also covers, as requested by the Council, attempts or threats of retaliation. The agreed text includes important protection measures such as the exemption from liability for breach of restrictions on disclosure of information imposed by contract or by law,. The directive will also include a list of all support measures which will be put in place for whistleblowers.
- Feedback obligations for authorities and companies: the timeline for feedback remains as in the Council's position, namely an obligation to respond and follow-up to the whistleblowers' reports within 3 months (with the possibility of extending to 6 months for external channels in duly justified cases);
- Public disclosures: the position of the Council is retained with an article setting out the conditions to be fulfilled for a person to be protected by the new rules in case he/she publicly discloses information;
Once the Parliament has confirmed the deal, the text will be reviewed by lawyer linguists before formal adoption by both Parliament and Council.
Once finally adopted and published in the official journal, member states will have 2 years to implement the new rules in their national legal system.
Whistle-blower protection is currently covered in a fragmented manner. At the moment, only 10 EU countries have a comprehensive law protecting whistleblowers. At EU level, there is only very sectoral legislation (mostly in the areas of financial services) which include measures to protect whistleblowers.
A 2017 study carried out for the Commission estimated the loss of potential benefits due to a lack of whistle-blower protection, in public procurement alone, to be in the range of €5.8 to €9.6 billion each year for the EU as a whole.