M.O.O.C. Unito

On 16 April 2019, the European Parliament voted in an overwhelming majority to adopt the Directive.

The Directive was adopted on 23 October 2019 and has a transposition deadline of 17 December 2021 (with the exception of the obligation to establish internal reporting channels with a further two-year extended deadline).

The adopted text marks a step forward compared to the Proposal, introducing additional guarantees for whistleblowers. 

One of the most controversial points of the Commission Proposal was the three-tier reporting process: they were generally required to use internal channels first; if these channels did not work or could not reasonably be expected to work, they could have reported to the competent authorities, and, as a last resort, to the public. The European Parliament succeeded in changing this provision, leaving whistleblowers free to choose the most appropriate reporting channel, although public disclosure is still subject to certain conditions.

The most significant measures introduced by the Directive are:

• the boundaries of the term “retaliation” are better defined as “any direct or indirect act or omission which occurs in a work-related context prompted by the internal or external reporting or by public disclosure, and which causes or may cause unjustified detriment to the reporting person” (article 6);

• the Directive shall not affect the responsibility of the Member States to ensure national security and their power to protect their essential security interests. In particular, it shall not apply to reports on breaches of the procurement rules involving defence or security aspects unless they are covered by the relevant instruments of the Union (article 3);

• the personal scope (article 4) is extended to include also civil servants in the status of ‘workers' whose protection should be granted, shareholders and persons belonging to the administrative or supervisory body of an undertaking, paid trainees and persons whose workbased relationship ended. Protective measures of reporting persons who publicly disclose information on breaches falling within the scope of this Directive also apply to facilitators (persons who assist the whistleblower in the reporting process in a work-related context), third persons connected with the reporting persons and who may suffer retaliation in a work-related context, such as colleagues or relatives of the reporting person, and legal entities that the reporting persons own, work for or are otherwise connected with in a workrelated context;

• the motives of the whistleblower in making the report are irrelevant as to whether or not they should receive protection (recital 33);

• the decision to accept and follow up on anonymous reports of breaches falling within the scope of the Directive is left to the Member States, but full protection is granted to whistleblowers who have reported or made public disclosures anonymously and who have subsequently been identified and suffer retaliation (article 5);

• the reporting person can choose the most appropriate channel depending on the individual circumstances of the case. Even if the use of internal channels before external reporting is encouraged where the breach can be effectively addressed internally and where the reporting person considers that there is no risk of retaliation, persons shall provide information on breaches falling within the scope of this Directive externally or directly to relevant institutions, bodies, offices or agencies;

• public disclosures (article 15): if no appropriate action is taken in response to the internal and/or external report within the set timeframe or if the whistleblower believes that there is an imminent danger to the public interest or a risk of retaliation, the reporting person will still be protected if he/she discloses the information to the public;

• article 16 extends the duty of confidentiality: any information from which the identity of the reporting person may be directly or indirectly deduced shall not be disclosed to anyone beyond the authorised staff members competent to receive and/or follow-up on reports without the explicit consent of this person. It may only be revealed when this is a necessary and proportionate obligation required by Union or national law in the context of investigations by national authorities or judicial proceedings, in particular, to safeguard the rights of defence of the concerned person. In that case, the reporting person shall be informed (with a written justification explaining the reasons for the disclosure of the confidential data concerned) before his or her identity is disclosed, unless such information would jeopardise the investigations or judicial proceedings;

• any form of retaliation is prohibited, including threats and attempts of retaliation, whether direct or indirect (article 19);  

• listing the particular forms that retaliation measures can take, the adopted text specifies that the failure to convert a temporary employment contract into a permanent one is relevant only if the worker had legitimate expectations that he or she would be offered permanent employment. It also adds psychiatric or medical references among the forms of retaliation; 

• article 20 states that during legal proceedings whistleblowers may receive financial and psychological support and that supporting measures may be provided, as appropriate, by an information centre or a single and identified independent administrative authority;

• article 21 specifies that persons making a report or a public disclosure in accordance with this Directive shall not be considered to have breached any restriction on disclosure of information and shall not incur liability of any kind in respect of such reporting or disclosure provided that they had reasonable grounds to believe that the reporting or disclosure of such information was necessary for revealing a breach according to this Directive;

• in cases where the reporting persons lawfully acquired or obtained access to the information reported or the documents containing this information, they should enjoy immunity from liability;

• in relation to the burden of proof, article 21 states that in proceedings before a Court or other Authority relating to a detriment suffered by the reporting person, and subject to him or her establishing that he or she made a report or public disclosure and suffered a damage, it shall be presumed that the detriment was made in retaliation for the report or disclosure. In such cases, it shall be for the person who has taken the detrimental measure to prove that this measure was based on duly justified grounds; 

• the safeguards also apply to persons assisting the whistleblower, such as facilitators, relatives or colleagues;  

• the Member States shall take the necessary measures to ensure not only remedies but also full compensation for damages suffered by reporting persons at the conditions set in the Directive;  

• appropriate remedies may take the form of actions for reinstatement (for instance, in case of dismissal, transfer or demotion, or of withholding of training or promotion) or for restoration of a cancelled permit, licence or contract; compensation for actual and future financial losses (for lost past wages, but also for future loss of income, costs linked to a change of occupation); compensation for other economic damages such as legal expenses and costs of medical treatment, and for intangible damage (pain and suffering);

• article 24 introduces a no waiver of right and remedies clause: the Member States shall ensure that the rights and remedies provided for under this Directive may not be waived or limited by any agreement, policy, form or condition of employment, including a pre-dispute arbitration agreement; 

• article 25 adds a no regression clause: The implementation of this Directive shall under no circumstances constitute grounds for a reduction in the level of protection already afforded by the Member States in the fields covered by the Directive.