Overview of whistleblower protection

2.1. EU initiatives

In its 5.7.2016 Communication, the Commission underlined that protecting whistleblowers in the public and private sector contributes to addressing mismanagement and irregularities, including crossborder corruption relating to national or EU financial interests. 

It stressed the need for effective measures to protect those who report or disclose information on threats or harm to the public interest, thus contributing to increased detection of fraud and tax evasion. 

The Commission announced that it would have continued to monitor the Member States' provisions and to facilitate research and the exchange of best practices to encourage improved protection at national level. It also indicated that it was assessing the scope for horizontal or further sectoral action at EU level while respecting the principle of subsidiarity. 

President Juncker affirmed the commitment to assess the scope for further action to strengthen the protection of whistleblowers in EU law in the Letter of Intent complementing his 2016 State of the Union speech and in the 2017 Commission Work Programme.

With its Resolution of 14 February 2017 on the role of whistleblowers in the protection of EU’s financial interests (2016/2055(INI)), the European Parliament: 

• called on the Commission to submit a legislative proposal before the end of 2017 protecting whistleblowers “as part of the necessary measures in the fields of the prevention of and fight against fraud affecting the financial interests of the Union, with a view to affording effective and equivalent protection in the Member States and in all the Union’s institutions, bodies, offices and agencies”;

• called on the Commission to carry out a public consultation to seek the view of stakeholders on the reporting mechanisms and the potential shortcomings of the procedures at national level;

• recognised that whistleblowers play an essential role in helping Member States, EU institutions and bodies to prevent and tackle any breaches of the principle of integrity and misuse of power that threaten or violate fundamental sectors;

• called on those Member States that had not yet adopted principles to protect whistleblowers in their domestic law to do so as soon as possible;

• emphasised that whistleblowing relating to the financial interests of the Union is the disclosure or reporting of wrongdoing, including, but not limited to, corruption, fraud, conflicts of interest, tax evasion and tax avoidance, money laundering, infiltration by organised crime and acts covering up any of these;

• pointed out that protection is granted to those who disclose information in the reasonable belief that the information is correct at the time it is revealed, including those who make inaccurate disclosures by genuine error;

• expressed the need to ensure that reporting mechanisms are accessible, safe and secure and that whistleblowers' claims are professionally investigated;

• called on the Commission, and on the European Public Prosecutor’s Office to set up effective communication channels between the parties concerned and, likewise, to establish procedures for receiving and protecting whistleblowers who provide information on irregularities relating to the financial interests of the Union, and to establish a single working protocol for whistleblowers;

• emphasised the need to protect the confidentiality of the information sources to prevent any discriminatory actions or threats; 

• considered it necessary to foster an ethical culture that helps to ensure that whistleblowers do not suffer retaliation or face internal conflicts; it called for the Commission to provide a clear legal framework that guarantees that those exposing illegal or unethical activities are protected from retaliation or prosecution and to present concrete proposals for the full protection of those who disclose illegalities and irregularities;

• invited the EU agencies to provide a written policy on protecting whistleblowers from reprisals;

• drew attention to the fact that some existing schemes provide financial rewards to whistleblowers (such as a percentage of the sanctions ordered); considered that although this needs to be managed carefully to prevent potential abuse, such awards could provide significant income to persons who have lost their jobs as a result of whistleblowing.

Between 3 March and 29 May 2017, the European Commission carried out an open public consultation (OPC) to collect views on the issue of whistleblower protection at national and EU level. The Commission received 5,707 replies.

The results were as follows:

• almost all participants agreed on the need to protect whistleblowers (99.4%);

• 96% were in favour of introducing legally binding minimum standards on whistleblower protection in Union law;

• the majority of respondents (85%) believed that workers very rarely or rarely report concerns about threat or harm to the public interest;

• fear of legal (80% of individual respondents and 70% of organisations) and financial consequences (78% of individual respondents and 63% of organisations) and fear of a bad reputation (45% of individual respondents and 38% of organisations) were the reasons most widely cited as to why workers do not report wrongdoings.

In its Resolution (2016/2224, 24 October 2017) on legitimate measures to protect whistleblowers acting in the public interest when disclosing the confidential information of companies and public bodies, the European Parliament:

• called on the Commission to present before the end of the year a horizontal legislative proposal establishing a comprehensive common regulatory framework which guarantees a high level of protection across the board, in both the public and private sectors, as well as in national and European institutions, including relevant national and European bodies, offices and agencies, for whistleblowers in the EU, taking into account the national context and without limiting the possibility for the Member States to take further measures;

• pointed out that relevant EU legislation should establish a clear procedure for properly handling disclosures and effectively protecting whistleblowers;

• considered ‘whistleblower’ to mean anybody who reports or reveals information in the public interest, including the European public interest;

• deplored the fact that only a few Member States had introduced sufficiently advanced whistleblower protection systems;

• believed that it was necessary to introduce protective measures against retaliation. It stressed that, once someone is recognised as a whistleblower, steps should be taken to protect him or her, to bring to an end any retaliation measures taken against him or her, and to grant the whistleblower full compensation for the prejudice and damage incurred. Whistleblowers should not be liable for prosecution, civil legal action or administrative or disciplinary penalties due to making the report;

• in relation to whistleblower protection, it believed that, where applicable, psychological support should be provided, that specialised legal aid should be given to whistleblowers who request it and lack sufficient resources, that social and financial assistance should be given to those who express a duly justified need for it and as a protective measure if civil or judicial proceedings are brought against a whistleblower, in accordance with national law and practices. It added that compensation should be granted, irrespective of the nature of the damage suffered by the whistleblower as a result of making a report. Moreover, it emphasised that whistleblowers must be guaranteed proper reception arrangements, accommodation and safety in a Member State which does not have an extradition agreement with the country that committed the acts in question;

• called on the Member States and EU institutions, in cooperation with all relevant authorities, to introduce and take all possible necessary measures to protect the confidentiality of the information sources in order to prevent any discriminatory actions or threats, as well as to establish transparent channels for information disclosure, to set up independent national and EU authorities to protect whistleblowers, and to consider providing those authorities with specific support funds. It also called for the establishment of a centralised European authority for the adequate protection of whistleblowers and people who assist their acts based on the model of national privacy watchdogs. It called on the Commission, for these measures to be effective, to develop instruments focusing on protecting against unjustified legal prosecutions, economic sanctions and discrimination.