The proposed Directive – which requires approval from the European Parliament and European Commission – aims to provide a high level of protection for whistleblowers who report breaches of EU law, safe channels for reporting both within an organization and to public authorities and impose non-discriminatory and dissuasive sanctions for those enforcing retaliation against whistleblowers.
This proposed Directive is the second important step that Europe makes in this direction after the approval, by the European Parliament on 24 October, of the resolution which Virgina Rozière requested to create a normative framework to protect whistleblowers within the European Union.
This proposal aims to establish minimum guarantees so that the whistleblowers can report the unlawful acts or malpractices that they are witness of and are against the rest of the citizens, without suffering retaliation for it.
The referred initiative responds to the need for homogenisation and to give a higher level of protection to persons reporting corruption at an EU level. Currently, said level of protection remains at the decision of each State, with only ten States of the Union having a law in place that protects whistleblowers.
Moreover, recent scandals such as Dieselgate, the Panama Papers or the Cambridge Analytica case have highlighted the importance of whistleblowers, who have played a significant role in being able to investigate and bring to the light the commission of said infractions.
With its approval, the Directive aims to guarantee a high level of protection for whistleblowers who report breaches of EU law in areas such as public procurement, financial services, money laundering and terrorist financing. Furthermore, it proposes minimum requirements to guarantee such protection and requires the Member States to implement secure reporting channels and to protect the whistleblowers against dismissal and other retaliation. Such measures include free legal advice, a reversal of the burden of proof in case of internal retaliation within the organisation (such as dismissal or workplace harassment) or unimputability for infringing confidentiality agreements.
The Directive establishes three channels to allow the reporting of the corresponding claims:
The first channel is to report the alleged infringement in the core of the organisation, public or private, through an internal channel that the organisation itself has established. In the event that no appropriate action was taken by the organization in response to the report within the period set forth in the Directive or the whistleblower has reasonable grounds to believe that the use of such channel could jeopardise the effectiveness of the investigation, the whistleblower could report directly the alleged infringement to competent authorities and, finally, a third channel that consists on reporting the alleged infringement to the media if no appropriate action is taken after reporting through other channels.
As a general rule, the Directive will apply to companies with more than 50 employees, companies of any size that operate in the financial services sector or that are naturally vulnerable of money laundering or terrorist financing, and state and regional administrations and municipalities of more than 10.000 citizens.
Finally, in addition to prohibit the retaliations, the proposed Directive establishes that the Member States should provide effective, fair and dissuasive sanctions to the natural or legal persons that promote or effectively apply retaliations to whistleblowers.
As established in the Directive text itself, “the introduction of robust whistleblower protection rules will contribute to protecting the budget of the Union and to ensuring the level playing field needed for the single market to properly function and for businesses operate in a fair competitive environment.”