Progress on whistleblower protection in Europe
In honour of World Whistleblowers’ Day, we want to emphasise the importance of responsible citizens who, despite the risk, choose to fulfil their civic duties in defence of transparency, responsibility and accountability.
Whistleblowers are important actors in national and European efforts to detect, investigate and tackle corruption: their exposés have brought to light irregularities in public and private organisations. By exercising their freedom of expression, protected by Article 11 of the EU Charter of Fundamental Rights, they contribute to the enforcement of national and European laws.
It is essential to ensure that they are adequately protected from personal, professional or legal reprisals, to the detriment of their own and their families’ fundamental freedoms and rights.
Therefore, in December 2019, Directive (EU) 2019/1937 of the European Parliament and of the Council on the “Protection of persons reporting breaches of Union law” entered into force, marking a turning point in a field characterised by the presence of deficient and fragmented national regulations, establishing minimum standards of protection.
The deadline for transposition of the text into national law expired on 17 December 2021. Despite many delays, almost all EU Member States have passed laws to transpose the Directive into national law.
As of May 2024, with the adoption by Poland and Estonia of the last transposition laws, by now all EU Member States have transposed the Directive into national law, meaning that the new rules are already fully in force throughout the European Union.
For its part, Spain adopted Law 2/2023, of 20 February, regulating the protection of persons who report regulatory infringements and the fight against corruption, which shares the dual purpose of the Directive: the protection of legality and the protection of persons who report breaches of the law. Like Directive (EU) 1937/2019, the transposition law in the case of Spain does not extend its protection in general to any person who reports an unlawful act, but it is necessary for there to be an employment or professional relationship (understood in a broad sense).
Furthermore, in April 2024, the European Commission has launched two whistleblower tools for the Digital Services Act (DSA) and the Digital Markets Act (DMA).
These tools will allow individuals to provide, without fear of retaliation, information to identify and uncover harmful practices by very large online platforms or search engines designated under the DSA, or any breach of gatekeepers’ obligations under the DMA.
Whistleblowers may provide relevant information anonymously or not, in any of the official EU languages and in any relevant format (e.g. reports, memos, email exchanges, data metrics, internal investigations, decisions or any relevant circumstances).
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 proposal for a Directive of the European Parliament and of the Council on the fight against corruption, replacing Council Framework Decision 2003/568/JHA and the Convention on the fight against corruption involving officials of the European Communities or officials of Member States of the European Union, and amending Directive (EU) 2017/1371 of the European Parliament and of the Council.
It is the first law at EU level to bring together in a single legal act rules on corruption in the public and private sectors.
Art. 22 of the proposal presented in 2023 by the European Commission explicitly refers to the need to protect those who report or assist in the investigation of criminal offences and emphasises the need to “take the necessary measures to ensure that the provisions of Directive (EU) 2019/1937 apply to the reporting of criminal offences referred to in Articles 7 to 14 and to the protection of those who report or assist in the investigation of criminal offences” and “ensure the necessary support and assistance throughout the criminal proceedings for those who report criminal offences covered by this Directive and who provide evidence or otherwise cooperate in the investigation, prosecution or trial of such offences receive protection”.
In February Parliament set out its negotiating position. The report on the proposal by the rapporteur of the Civil Liberties, Justice and Home Affairs Committee, Ramona Strugariu MEP, issued in February 2024, proposed the inclusion of a paragraph to encourage Member States to establish “appropriate reporting mechanisms to enable individuals to disclose anonymously information relating to criminal offences covered by this Directive”.
On 14 June, the Council of European Justice Ministers reached an agreement. However, in the text adopted by the Council, the article on the protection of alerters, which is only mentioned in the preamble of the proposal, is missing.
On the basis of the general approach reached, the Council may enter into negotiations with the European Parliament in order to agree on a final legislative text. Once the new European Parliament is constituted, the inter-institutional trilogues can be launched to finalise the directive.
Alessia Schiavon, FIBGAR Director
June 23, 2024
