Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.
Whistleblowers: some consider them traitors; others see them as modern heroes. By issuing a recent proposal, the EU Commission has at least taken a position on improving (minimum) protections for whistleblowers and, above all, ensuring these protections are uniform throughout Europe. Originally developed by the Council of Europe, the principles should protect not only whistleblowers acting with good intentions but also those who suffer harm as a result of false or malicious reports. As such, they will not only strengthen the enforcement of EU law but also reinforce the freedom of expression.
At present, protections for whistleblowers still differ greatly among the 28 member states. Only 10 member states have comprehensive regulations in this area, while other countries offer isolated safeguards or none at all.
Regulatory content of the proposal
At its core, the proposal seeks to establish a 3-step, tiered system for whistleblower reporting.
- Level 1:
At the most basic level, the proposal calls for companies to establish internal reporting channels.
- Level 2:
Whistleblowers would be allowed to submit their reports to a government authority if they can demonstrate that using the employer’s internal channels offers or promises no success. The authority, in turn, would review such reports thoroughly and send the whistleblower a report on the results of the review within three to six months.
- Level 3:
The whistleblower would be permitted to go public, again only if no suitable measures have been taken in response to the whistleblower's report, or if going public would be necessary to protect the interests of the general public.
In addition, in order to strengthen protection not only for the whistleblower but also for those affected by such reports (i.e., those accused of misconduct), the proposal calls for the individual EU member states to establish appropriate sanctions to discourage malicious or abusive whistleblower reports.
At the same time, the EU Commission strives to guarantee protection for whistleblowers until the relevant processes have been concluded. Whistleblowers would be guaranteed effective legal remedies, rights of defense, and a fair process. The proposal includes anti-retaliation provisions, preventing employers from terminating or imposing other disciplinary measures on employees who act as whistleblowers. A burden of proof clause would require the employer to prove a negative—that a termination or disciplinary measure is not connected to the employee's disclosures.
The EU Commission’s proposal provides a very broad definition of “whistleblower”. Special protection would extend not only to employees but also, for example, to freelancers, unpaid interns, and even applicants and suppliers. However, the scope of the proposal is limited to violations of EU law. The areas of individual application range from, for example, financial services to data, environmental, and consumer protection.
Furthermore, the proposed regulations would apply only to companies with at least 50 employees or annual revenues of more than 10 million euros, as well as to cities or administrative units with more than 10,000 residents.
Whistleblowing is still a complex and sensitive topic, especially in companies operating outside of international corporate structures. Whistleblowers are often stigmatized as denunciators. At the same time, without a functioning internal whistleblowing system, companies run the risk that employees may take their reports to the public directly. An internal reporting system therefore does more than just help minimize liability risks; as an effective compliance instrument, it also contributes to the company's success. Regardless of the fate of the proposal, which for now depends initially on the consent of the heads of state and government of the member states, employers should consider promptly establishing an efficient and anonymous mechanism for exposing misconduct.