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The wind of change: the whistleblower protection directive

On October 2019, the EU adopted the long-awaited Directive on the protection of persons who report breaches of Union law (henceforth referred to as the Directive or the Directive on the protection of whistleblowers). The Directive is the first EU horizontal piece of legislation on the protection of whistleblowers. The Directive aims to enhance enforcement of EU law, via the use of whistleblowers in specific areas of interest where a lack of enforcement and breaches have been acknowledged as potentially leading to serious harm to the public interest. At present two ways of implementing the Directive are discussed in the Member States. One proposal is a “1:1 implementation”. The national legislator would basically copy and paste the Directive’s material scope. The other way is to widen the scope generally to any breach of law, which I strongly encourage Member States to follow.

The Directive adopts a broad definition of whistleblowers, ranging from workers and public servants to contractors and trainees. Personal motives of the whistleblower must not be taken into consideration, only the reasonable belief that the reported information was true at the time of reporting. Once the definition is satisfied, the whistleblower should respect the channels for disclosure. The whistleblower is free to report either internally or to the competent authorities without an obligation to report internally at first. The Directive still encourages internal reporting. It should be noted that public or private institutions should establish internal reporting mechanisms. To that end, it provides detailed rules on how these internal reporting mechanisms should work. The same happens for the competent authorities. Reporting directly to the public (via media or other platforms) is the last solution for the whistleblower.

The Directive provides protection to the whistleblower in terms of civil, administrative, labour and criminal law. The whistleblower should be protected against any type of retaliation in the workplace. Despite the importance of the Directive, there are several issues not adequately addressed. Firstly, the Directive does not touch upon the issues of anonymity and financial rewards. Those two components are essential parts of whistleblower’s protection if applied correctly. Secondly, the Directive fails to consider the establishment of an EU office on the protection of whistleblowers, responsible for coordinating the implementation of the Directive and a point of reference for every confused whistleblower. Finally, under the Directive, the whistleblower is required not to commit a self-standing criminal offence at the time he or she acquires the information. It is not certain what this concept is and how should it be applied, bringing the whistleblower in a weak position as he or she will not know if a criminal offence has been committed or not.

The transposition of the Directive is quite slow. According to the EU Whistleblowing Monitor, none of the Member States have totally transposed the Directive. The deadline of the transposition was on December 21st, 2021. Unfortunately, Member States are slow in this process. Nevertheless, the Directive demonstrates a change of culture in the EU towards whistleblowers. A delicate figure some years ago with almost no protection, the whistleblower is now protected under EU law. This change of culture should become apparent by adopting whistleblowing structures and protecting whistleblowers when needed.