The publication stresses that reporting by employees (workers) of acts of corruption and other offences that come to their knowledge is one of the most effective detection instruments. For this mechanism to be efficient, domestic law should provide for the establishment of confidential reporting channels, a clear procedure for processing tips and corrective action, as well as for the measures for protecting whistleblowers and encouraging them to report*.
However, according to TI, in late 2018 only 11 EU member States had the legal framework which was to a certain extent in line with these requirements; yet even in these countries, loopholes remain and enforcement is lacking.
In order to address this problem Directive 2019/1937 of the European Parliament and of the Council of 23 October 2019 on the protection of persons who report breaches of Union law was adopted. The EU member States committed to incorporating the provisions of the Directive in their domestic legislation by 17 December 2021 (in the event that a country has not implemented the requirements of the Directive in its domestic legislation by the set deadline, its citizens will be entitled to make reference to the Directive to protect their rights).
Based on the information received from local partners, the Whistleblowing International Network and the EU Whistleblowing Monitor and the findings of online surveys, the TI experts assessed the progress in the implementation of the standards provided for by the Directive in the domestic legislation of the EU member States.
For the assessment purposes, the countries were divided into the following categories:
- minimal or no progress – 18 countries;
- limited progress – 5 countries;
- moderate progress – 3 countries;
- substantive progress – 1 country (Czechia).
The category “substantive progress” means that a country has realised three significant outputs: a formal stakeholder consultation has taken place, the bill has been developed and circulated and the government has introduced the bill into parliament; “moderate progress” implies the first two stages, “limited progress” includes at least one of the first two stages, while in the other cases counties were considered to have demonstrated a minimal or no progress.
1. Substantive progress
It is only Czechia that has demonstrated substantive progress in implementing the Directive: the relevant bill revised to address the comments of stakeholders and the Government has already been submitted to Parliament. TI welcomes the fact that the document extends the provisions on the protection of whistleblowers to a wide range of persons and situations.
Furthermore, the drafting process is highly transparent and inclusive: not only is the government publishing online almost all important documents, including comments and suggestions of civil society organisations, legal community, business associations etc., but also in Czechia, unlike in most other countries, all information was collated in a single document which indicates for each comment whether it was accepted or rejected, with an explanation.
2. Moderate progress
According to the report, Latvia, the Netherlands and Sweden have achieved moderate progress in implementing the Directive.
Latvia, in particular, saw public consultations which resulted in revising the relevant bill. The latter, however, has not been submitted to the Cabinet of Ministers yet. At the same time, the country is planning to adopt a document which would go beyond the minimal standards set by the Directive: for instance, the violations covered by the bill mean “any violation that damages the public interest” and are complemented by a non-exhaustive list of areas where such violations can occur.
In the Netherlands, public consultations on the bill have also been held. However, there is no information on how the comments of stakeholders were integrated in the document. Additionally, IT stresses that the country already has a whistleblower protection law, but difficulties in its implementation have revealed important shortcomings. Instead of an overall reform of the current legal framework regulating whistleblowing, the country decided to draft a separate bill to transpose the Directive thereby creating a special reporting regime only for the beaches of EU law, which will most certainly result in additional problems for potential whistleblowers.
In order to transpose the Directive, Sweden established a special commission that issued an 800-page inquiry report providing clarifications on the bill in 2020. The darft was also substantially revised to address the outcome of public consultations to which close to 150 organisations, including TI Sweden, were invited.
3. Limited progress
The TI experts believe that Denmark, Estonia, France, Ireland and Spain have made limited progress. All these countries have launched the drafting of the relevant bill and are conducting consultations with stakeholders; however it is unlikely that they will have transposed the requirements of the Directive by the set deadline.
At the same time, these countries have found solutions that are welcomed by IT: in Denmark and Estonia for example, the range of situations where whistleblowers will be protected is much broader than provided for by the Directive.
4. Minimal or no progress
The TI asserts that most EU countries, including Austria, Belgium, Bulgaria, Croatia, Cyprus, Finland, Germany, Slovenia, Slovakia, Greece, Hungary, Italy, Lithuania, Luxemburg, Malta, Poland, Portugal and Romania have made no substantial progress in transposing the Directive.
The TI experts highlight that in these countries either there is no information on the drafting of the bills making the necessary amendments in line with the Directive or the relevant information is based on statements of certain officials, or the number of publicly available documents does not allow for the due assessment of the degree of incorporation of the requirements of the Directive. In some countries such as Belgium and Finland working groups were established to implement the Directive, but these bodies have taken no further steps.
For some countries, the report provides references to specific TI documents containing recommendations on how to develop (improve) the whistleblowing legislation.
The TI experts have also produced general recommendations for all countries that should help them put their domestic legislation on whistleblowing and whistleblower protection in line not only with the Directive but also with the international best practices. In particular, they suggest the following:
- have a broader scope of the legislation on whistleblowing and whistleblower protection covering all breaches of national and EU law and threats or harm to the public interest;
- consider developing special procedures for protecting whistleblowers in the matters relating to defence, national security and classified information;
- define “reasonable ground to believe” in order to ensure that a person can claim protection as a whistleblower;
- strengthen the protection of whistleblowers against retaliatory legal proceedings also by eliminating additional conditions for gaining this protection;
- reverse the burden of proof on the person who has taken a detrimental measure (such as dismissal, demotion, deprivation of bonuses etc.) against a whistleblower obliging him/her to prove that it was not linked in any way to the reporting, and would therefore have happened anyway;
- ensure full reparation of damages suffered by whistleblowers, including reinstatement and financial compensation;
- provide for the obligation to establish internal reporting channels;
- require companies and public institutions to process anonymous reports as well;
- include penalties for failure to fulfill obligations under the Directive, including for failure to establish reporting mechanisms, follow-up on reports, or protect whistleblowers;
- extend protection measures to civil society organisations assisting whistleblowers;
- designate an independent authority responsible for the oversight and enforcement of whistleblowing legislation.
*The Anti-Corruption Centre of the National Research University “Higher School of Economics” has issued a report on the approaches to the organizational setting of the whistleblowing system in the United States, the United Kingdom and Canada, which have a long record in this area.
Countries: Austria, Belgium, Bulgaria, Croatia, Cyprus, the Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Ireland, Italy, Latvia, Lithuania, Luxemburg, Malta, the Netherlands, Poland, Portugal, Romania, Slovakia, Slovenia, Spain, Sweden.