The protection of whistleblowers in Europe: progress and setbacks
Faced with an increase in cases of whistleblowers reporting wrongdoing within companies and public institutions, the European Union (hereinafter, the Union or the EU, indistinctly) was under pressure to establish a policy to protect whistleblowers, which eventually crystallized in Directive (EU) 2019/1937 of 2019 on the protection of persons who report breaches of Union law (hereinafter, the Directive). Consequently, the Directive aimed to introduce secure communication channels, as well as clear procedures for reporting infringements, to avoid any form of retaliation against whistleblowers. Furthermore, the Directive was conceived as a legal instrument that allowed for a positive impact on transparency, integrity and accountability.
Now that the deadline, and the extension thereof, for the Member States to transpose the Directive into their respective legal systems has expired, the European Parliamentary Research Service, in a recent article notes that there are two essential problems in relation to the Directive, on the one hand, in terms of the protection of Human Rights (hereinafter, HR) and, also, in terms of the transposition of the legal text itself.
The divergences in the field of human rights arise, within the framework of the Directive, in relation to the Charter of Fundamental Rights of the European Union and the European Convention on Human Rights, the latter being the body of law that the European Court of Human Rights (hereinafter, ECtHR) must interpret when ruling on disputes brought before it. Thus, although according to the interpretation of the aforementioned legal texts, the Directive protects the fundamental right to freedom of expression, there are numerous differences between the Directive itself and the case law of the ECtHR on whistleblowers.
The first essential difference lies in the material scope of protection, as the Directive only protects parties who report a breach of European law.
Even so, the case law of the ECtHR, which has evolved over time, has established six criteria that determine under what conditions the protection of the right to freedom of expression, enshrined in Article 10 of the European Convention on Human Rights (hereinafter, the Convention or ECHR indistinctly), applies to whistleblowers. Specifically, the aforementioned criteria established in the case Guja v. Moldovia (2008) (i) whether the whistleblower had alternative channels to inform before making it public, (ii) whether the information disclosed is of public interest, (iii) whether a preliminary check was made on the authenticity of the information disclosed, (iv) what damage was caused to the employer as a result of the disclosure, (v) whether the whistleblower acted in good faith; and (vi) whether the sanction imposed (on the employer) was proportionate.
Although, as noted above, the case law of the European Court of Human Rights on the protection of whistleblowers has evolved until reaching a recent judgment, Halet v. Luxembourg (2023) in the ‘Luxleaks’ case, handed down by the Grand Chamber of the High Court, which establishes the doctrine in relation to the public interest test. Luxembourg (2023) in the framework of the ‘Luxleaks’ case, handed down by the Grand Chamber of the High Court, which establishes doctrine in relation to the public interest test insofar as it determines, on the one hand, that it is not necessary for the information disclosed to be essential, new and previously unknown; and, also, that within the framework of a democracy, the notion of public interest covers (i) unlawful acts, (ii) conduct which, although lawful, may be reprehensible, and (iii) matters affecting the functioning of the public authorities and which give rise to debate in society.
Likewise, while the case law of the ECtHR states that whistleblowers must report breaches through internal communication channels as a first option, the Directive merely recognizes that, although communication through internal channels is preferential, it is not a requirement. Furthermore, the ECtHR’s decisions on whistleblowing use as admissibility criteria the legal principles of good faith and public interest, as well as the analysis of the relationship between the protection of the whistleblower and the damage caused by the whistleblower to the company, whether public or private, or a public institution, as a result of the whistleblowing itself. For its part, the Directive does not consider the application of these legal principles or the factual relationship, nor does it protect those who communicate information in matters of national security of each Member State; although, on this last point, it should be noted that there is case law of the ECtHR, such as the Bucur & Toma v. Romania (2013), which grants protection to the whistleblower under the protection, again, of Article 10 of the ECHR, which proclaims freedom of expression.
With regard to the transposition of the Directive into the national legal systems of the Member States, although it was envisaged as the ideal occasion for the States to have an internal debate on the regulation of whistleblowing that would culminate in the enactment of complete national laws in this area, it is exposing the weaknesses of the Directive itself. Consequently, this could mean that, when the time comes to transpose it, it will crystallize into piecemeal provisions that are difficult to apply and which, moreover, will often be accompanied by judicial systems that do not function properly.
It should also be noted that, in the framework of the transposition of the Directive, there have been some difficulties that led the European Commission, in 2022, to send, first, letters of formal notice to 24 Member States for not having fully transposed and informed the Commission of the transposition measures before the deadline set (December 17, 2021); and, subsequently, reasoned opinions for not having communicated the complete transposition measures of the Directive. Finally, the European Commission brought countries such as Spain, Italy, Germany, Hungary or Poland (among others) before the Court of Justice of the European Union (CJEU) for not having duly transposed and notified the national measures transposing the Directive into national law.
Finally, the weaknesses of the Directive, as mentioned above, are headed by the lack of protection for those who report on matters of national security. Other shortcomings of the aforementioned legal text are the time limit established for the acknowledgement of receipt of complaints, since for specific matters it would be insufficient as it is very short; and the lack of obligation to record in a register the actions taken to address the irregularities reported, as well as the identity of those who took such decisions.
Consequently, and in relation to the above, there are only two possibilities to increase the effectiveness of the Directive. A first option would be for the Commission or the Council to adopt an implementing regulation on whistleblowers that would establish uniform implementing rules throughout the Union in relation to the Directive. On the other hand, Member States could also be urged to avoid transposing the Directive by means of piecemeal and difficult-to-implement provisions on the grounds of the ineffectiveness that this would entail.
Finally, it is important to note that the European Union remains committed to the fight against corruption and continues to make progress towards this end with measures such as the new proposal for a Directive on the fight against corruption presented on May 3 of this year.
Ariadna Puyuelo Martínez, FIBGAR collaborator
Madrid, 23rd of june, 2023
