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UJF lawyer Tytti Oras: EU whistleblower directive too complicated

“The preconditions for whistleblower protection are structured in such a complicated way that its meaning in this form may be limited. “

UJF lawyer Tytti Oras looks at the pros and cons of the EU’s whistleblower directive, contained in the union’s recent statement on the new proposals.

The UJF issued its opinion concerning the proposed directive on the protection or persons reporting on breaches of Union law, aka the whistleblower directive, at the end of September. The EU has been collecting responses from member states on the measures contained in the directive.

Pros

1. It’s good that protection is being planned for people who expose malpractices. Such people are important information sources for journalists. Until now there has been no such general protection, and therefore people who have revealed issues in the public interest have faced problems. This was so for instance with the Lux Leaks case.
So what sort of protection would whistleblowers get? Ultimately, it’s a matter for member states. But the directive requires that the state must provide scope for reporting irregularities to the authorities and provide financial protection and legal advice. In addition, the directive would prohibit retaliation against whistleblowers. For example, an employer must not take action to block the disclosure of information.

2. The purpose of the directive is not to change the conditions under which it has been possible to reveal irregularities, such as the media. The directive would therefore only change the conditions and protection enjoyed by the information source.

Cons

3. The scope of application of the proposed directive is inadequate. It only covers some areas of EU law, and for example, labor law is completely missing. Disclosure of occupational health and safety irregularities would not be covered by this protection.

4. The preconditions for whistleblower protection are structured in such a complicated way that its meaning in this form may be limited. There would only be protection if you follow a three-step procedure.
The first step would be use of a company or organisation’s internal notification procedure. Such a procedure should be created if the company or organisation has either 50 employees or €10 million turnover. Internal reporting should be anonymous. But is it plausible that information could be kept confidential within a company? This could have negative consequences for the whistleblower and it would not encourage reporting abuses. Within an organisation matters are often dealt with on the quiet and malpractices continue.
If internal reporting does not produce a result, the next step is the official phase. The state should establish a governmental procedure to deal with reported irregularities.

Only if nothing still happens, it is possible to use the media, by which time several months would likely have elapsed.

5. The purpose of the directive is to prevent corruption and to support the exposure of malpractices. However, the complex notification procedure as a precondition for protection can lead to the public never hearing of any deeds that run counter to the public interest.