Increased And Uniform Protection Is Coming: EU Adopts New Rules Protecting And Encouraging Whistleblowing

Author:Mr Christoph Haid and Michael Lindtner
Profession:Schoenherr Attorneys at Law

Scandals from Danske Bank to LuxLeaks and the Panama Papers would never have come to light were it not for insiders who dared to expose major wrongdoings within companies and organisations. Until recently, protection of whistleblowers in the EU has been fragmented across Member States and even across policy areas. The meagre protections granted to whistleblowers have been subject to constant criticism.

In the wake of important revelations by whistleblowers, the EU Commission proposed a new directive in 2018 to protect and encourage whistleblowing. After lengthy negotiations, the EU Parliament adopted a draft of this new directive ("Directive") on 16 April 2019 with the following cornerstones:

1 What type of reporting will be protected?

The proposed Directive grants protections for persons reporting on breaches of various EU rules in areas like public procurement, financial services, AML or data protection. It also applies inter alia to breaches relating to EU competition rules and breaches harming the EU's financial interests.

2 Who will be protected?

The proposed new rules provide protection not only for whistleblowers, but also for facilitators, third persons connected with the whistleblower (e.g. relatives) and legal entities that the whistleblower owns, works for or is otherwise connected within a work-related context.

3 What are the prerequisites for protection?

Protection will be granted if the whistleblower (i) adheres to a certain "reporting scheme" and (ii) acts in good faith:

The whistleblower should generally report via internal reporting channels, but may also report externally to the authorities. Under certain conditions it is also permitted to publicly disclose the information, for example via web platforms or social media. The whistleblower must also have had reasonable grounds to believe that the information reported was true at the time of reporting and that the information fell within the scope of the Directive. 4 What type of protection will be offered?

The Member States will take the necessary measures to prohibit any form of retaliation, including threats and attempts at retaliation, whether direct or indirect. This includes suspension, dismissal or equivalent measures, discrimination or unfair treatment.

Furthermore, the proposed Directive provides for measures to support whistleblowers, such as public access to independent information and advice on whistleblowing and protection measures...

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