By Marie Terracol and Ida Nowers (Whistleblowing International Network)
Whistleblowing allows those who witness wrongdoing to bring such issues to light, and is essential to fighting corruption and preserving democracy. Yet across the European Union (EU), laws do far too little to protect those who come forward.
In response, the EU adopted a landmark Directive on Whistleblower Protection in 2019. It included many important provisions to defend whistleblowers across the Union, filling gaps in many countries’ existing legislation and requiring that all member states pass legislation to protect them. Some of the most important include the shielding of whistleblower identities and the obligation for most companies and public institutions to establish whistleblowing mechanisms and follow up on reports. These basic steps are crucial to ensure whistleblowers have the opportunity to safely share the truth and that the reports they bravely make do not go ignored.
Member states dawdling
Transparency International and the Whistleblowing International Network (WIN) celebrated the new directive’s adoption and began to track countries’ progress in transposing the law ahead of the deadline in December 2021. In 2019, WIN launched the EU Whistleblowing Monitor, and in March 2021, WIN worked with Transparency International to publish a joint report assessing the transposition process. Yet when the deadline hit, only five member states had adopted relevant legislation. Even more devastatingly, a whole year later, only eight more followed suit – for a total of 13 out of 27 transposing the directive as of now. Thirteen more countries have issued draft laws that will still take time to pass, and Hungary hasn’t even begun the process. Now, we’re left wondering if countries ever intend to take whistleblower protection seriously.
This feeling seems to be shared by the European Commission, which started infringement procedures against EU members states as early as January. In July and September, the Commission took further steps and sent formal requests to 18 countries that had not completed transposition measures to comply with EU law, giving them two months to reply. If their replies are not satisfactory, the Commission may decide to refer these cases to the Court of Justice.
A complicated journey
Just last week, Bulgaria took a big step back when its parliament, in an unprecedented act, rejected the two whistleblower protection bills presented to them. It appears this was due to political manoeuvres rather than the content of the bill itself, in a context of high tension after another failure to form a government. Along with Transparency International Bulgaria, we are urging the prime minister to put whistleblower safety over politics and immediately submit the bill again to the national assembly without revision.
A similar, convoluted, legislative process took place in Romania, where transposition legislation was originally adopted in June and then was quickly sent back to parliament for revision by the president, after concerns were raised about some of its provisions. Thankfully, they didn’t let this stand and a second draft law was presented and finally adopted in December this year.
Content of the law matters
To ensure transposition did not result in weakening existing protection – as eleven EU countries already had dedicated whistleblower protection legislation prior to the adoption of EU-wide rules –the directive did include a non-regression clause. It also clearly stated that governments can go beyond its minimum standards by introducing or retaining provisions that are more favourable to whistleblowers. Governments are thus able to legislate beyond the minimum standards and introduce or retain provisions which are more advanced.
However, significant concerns have already been raised by whistleblower protection advocates that some provisions are potentially regressive.
Experts in Ireland highlighted how the new amendments could directly and indirectly reduce the level of protection already provided, especially the new criminal sanctions for ‘knowingly false reporting’, which could seriously dissuade genuine whistleblowers from considering speaking up. There are similar concerns in Romania that the new law has actually reduced whistleblowers rights by introducing new conditions to report information publicly – limits that did not exist under the previous law.
Even in France, where transposition has been particularly progressive, there are concerns that additional secrecy rules could reduce protection that was available under the previous regime. Absurdly, this would mean whistleblowers in these countries may now be less protected as a result of transposition of the directive than prior to its adoption.
Quality over speed
Governments must act urgently to ensure we aren’t waiting another year for sufficient whistleblowing protections in the EU. Yet they should not use their own past delays to justify working behind closed doors. Lack of transparency and little participation in legislative processes tend to result in ineffective legislation, riddled with loopholes and stymied with practical challenges in implementation, potentially even failing to meet the minimum requirements. This seems to be the case in Portugal, where the new law limits the possibility for whistleblowers to report directly to the authorities, which goes against the directive’s requirement in that regard and is far from best practice. We’re also watching with concern as Italy developed a bill, now before parliament and without proper consultation. In Malta, the law that was adopted seemingly overnight last year is now facing serious criticism and is labelled by whistleblower protection experts a trojan horse.
Only meaningful consultation with a wide range of stakeholders, including practitioners who have experience working with whistleblowers, such as civil society organisations, trade unions, employer associations and journalists’ associations – can ensure that the legislation takes into account the challenges and needs of all those most impacted by it, to keep the public safe from harm and corruption.
Whistleblowers across the EU will only feel able to speak up in the public interest if governments properly prioritise the adoption of whistleblowing laws via a transparent and inclusive process. Governments must provide high-level protection, beyond the minimum standards of the directive so that whistleblowers can speak up about wrongdoing that threatens lives, wastes much-needed public funds and puts our entire planet at risk.