On 16 April 2019, the EU Parliament has adopted the proposal for a directive on strengthening whistleblowers protection. Let’s have a quick chat with Jonathan Hug, Senior Legal Advisor at ABBL, to have a better understanding of this new piece of legislation.
Who is a whistleblower?
J.H.: Whistleblowers are defined in the proposed directive as natural or legal persons who report or disclose information on breaches acquired in the context of work-related activities. That definition is quite wide and covers not only workers, but also self-employed persons and contractors.
What are the ways used to make a report?
J.H.: The report is the provision of information regarding breaches, which can either be written in electronic or paper format, or oral via telephone calls, or can also be the result of physical meeting(s) with the relevant persons appointed by the concerned entities or with competent authorities.
Why is a directive needed?
J.H.: Whistleblower protection across the EU is fragmented, as it exists only in specific sectors and to varying degrees. In a number of countries, whistleblowers might also not be properly protected against retaliation and this leads to underreporting. The proposed directive by solving those issues aims to fully exploit an efficient whistleblower protection to strengthen enforcement.
What are the wrongdoings that can be reported?
J.H.: As it is an EU directive, it does not cover national law matters but its scope of application embedded acts or omissions that are and relate to EU legislation such as consumer protection, financial services, protection of privacy and personal data,…
How can breaches be reported? Are specific channels expected to be used by whistleblowers?
J.H.: Three channels of reporting are contemplated in the proposed directive. The first is the internal reporting (i.e. to the relevant private or public sector entity) and as such reporting is made within the entity concerned by the breach, the directive sets a number of requirements to be complied with. The confidentiality of the identity of the reporting person shall be ensured, an acknowledgement of receipt of the report shall be provided to the whistleblower, a dedicated staff shall follow-up on the report, feedback shall be given within a reasonable timeframe and information on external reporting shall be accessible.
J.H.: The second channel that is available to whistleblowers is the external reporting (i.e. the reporting to the competent authorities such as regulators, public prosecutor office…). That channel shall also be designed to ensure confidentiality for receiving and handling information transmitted by the reporting person. In addition, an acknowledgement of receipt of the report shall be provided to the whistleblower, a feedback shall be given in reasonable timeframe by the dedicated staff of the competent authority as well as a communication on the final outcome of the investigations. Moreover, authorities are expected to provide information regarding receipt of reports and follow-up measures on their website.
And the third?
J.H.: Finally, the third channel is the public disclosure where the information is made available to the public domain and/ or to the press. That third channel has to be considered as a last resort and is subject to conditions for benefiting from the protection regime described in the proposed directive.
How are whistleblowers protected?
J.H.: Reporting persons are protected against retaliation measures such as suspension, dismissal, discipline measures, blacklisting but they shall also not be considered as having breached any legal or contractual restriction on disclosure of information when they make a report or a disclosure.
Is that protection regime subject to conditions?
J.H.: The protection will apply if the reporting person has reasonable ground to believe that the reported information was true and if the reporting has been made via internal or external channels, or, as a last resort, via a disclosure to the public.
Is there also a protection for concerned persons (i.e. persons being reported by a whistleblower)?
J.H.: Yes. The proposed directive specifies that concerned persons shall benefit from the presumption of innocence, they have the right to a fair trial and their rights of defense shall be observed. Moreover, if their identity is not known to the public, their identity shall remain protected for as long as the investigation is ongoing.
Does the directive contain enforcement provisions?
J.H.: Not directly. It will up to the Member States to define penalties to ensure that the relevant provisions of the directive are enforced, but the proposed directive specifies that such penalties shall be effective, proportionate and dissuasive.
Will it be possible for Member States to implement additional provisions regarding whistleblower protection?
J.H.: Member States may introduce or retain provisions more favourable to the rights of the reporting persons than those set out in the proposed directive.
When will it be applicable?
J.H.: The proposed directive shall be transposed by the Member States two years after its adoption (i.e. for mid-April 2021).