By Ida Nowers WIN’s Law & Policy Coordinator and Dr Simon Gerdemann, a legal scholar on EU law and whistleblowing protection legislation. 

20 April 2022

Gerdemann explains the current state of transposition of the EU Directive and some of the key issues for implementation including the "direct effect" of some of its provisions. Gerdemann argues that most Member States have failed to realise that many of the Directive’s provisions entered into force automatically on the 18th December last year. He also explains the need to consider the case law of the European Court of Justice and the European Court of Human Rights.

Ida:  The EU Directive on Whistleblowing (Dir (EU) 2019/1937) was adopted over two years ago and the official deadline for the 27 member States to transpose it into their national legal systems passed on 17 December 2021. What is the current state of play for transposition?

Simon:  Amongst the 27 EU member States, only Denmark and (partially) Sweden adopted new transposition legislation that came into effect before the deadline.  Portugal, Lithuania, Malta, Cyprus, Latvia, and France have also passed new laws which will enter into force during 2022.

Read more: List of legislative developments in the transposition  

Several other countries have introduced Bills to parliament or issued draft proposals for consultation with stakeholders or the public. Overall, the process however  has been delayed and has not been particularly transparent or inclusive.
 

Read more: Can transposing the Whistleblower Protection Directive be done on time? Maybe, but not at the cost of transparency and inclusiveness
 

The remaining countries are yet to pass the necessary legal reforms needed to transpose the groundbreaking requirements of the Directive. Four months post deadline, one country remains listed as not having started the process.
 

Get an update: EU Whistleblowing Monitor list of updates

 

 
Due to the Member States’ large-scale failure to transpose the Directive in time, the Commission initiated infringement proceedings in January 2022.
 
Ida:  How would you describe the key mechanisms of the Directive?

Simon: The Directive’s main goal was to improve the effective enforcement of Union law by strengthening the individual protection of whistleblowers and the institutional framework for whistleblowing cases in general. The EU legislator seeks to establish a comprehensive minimum standard in the entire Union, thereby ending the current fragmentation of whistleblowing laws in Europe and the low level of protection in many Member States. To achieve this objective, the Directive relies on four main regulatory elements with various interlocking provisions:
 

  1. A comprehensive anti-retaliation law in favour of whistleblowers;

 

  1. Obligating organisations both in the private and public sector to set up their own whistleblowing reporting channels as addressees for internal reports;

 

  1. Establishing specialised national whistleblowing authorities as addressees for external reporting; 

 
 4.  Adopting whistleblowing-specific penalties into national law.
 
Ida:  The European Commission described the proposal for the Directive as a “game changer” for whistleblower protection.  How does the Directive measure up to whistleblowing legislation in United States and the UK?
 
Simon: Contrary to what most people would think when they remember cases like that of Edward Snowden and other whistleblowers in the United States, the US can actually be considered the motherland of modern whistleblowing legislation and one of its main driving forces. In some regulatory areas, most notably in the financial services sector, the level of whistleblower protection, incentives and administrative support go significantly beyond even what the Directive now seeks to establish in the European Union. Other whistleblowing laws around the world, and in Europe, also offer quite a robust level of protection at least in some respects, for example the UK’s Public Interest Disclosure Act (PIDA 1998) which was Europe’s first comprehensive whistleblowing law.
 

Read more: Implementing the EU Directive on Whistleblowing: Lessons learned from UK whistleblowing legislation

 
That being said, the Directive, while by no means perfect, truly is a game changer. This is especially true for the majority of Member States in the European Union which lacked any kind dedicated, comprehensive whistleblowing legislation.
 
Yet, even if you compare the Directive’s provisions to existing whistleblowing statutes, the sheer scope of application – especially if Member States choose to extend protection to reports of breaches of national law – is what sets the Directive apart from previous whistleblowing laws. Other countries, like the US, often only protect whistleblowers where the government can use them to compensate for a lack of existing enforcement capabilities - whilst leaving them very vulnerable in other areas of law and practice - resulting in an incoherent patchwork of different levels of protection and procedural requirements.
 

Read more: Are EU governments taking whistleblower protection seriously? Progress Report on the EU Directive

 
Since international research and experience has shown that legal certainty is of paramount importance for any effective whistleblowing law, a uniform framework like the one intended by the Directive is truly a significant and indeed an unparalleled step forward.
 

Read more:  Are whistleblowing laws working? IBA GAP 2021 Report

Ida: Given the significant delay of EU countries in adopting the necessary legislation to transpose the Directive – why do you think most countries failed to meet the official deadline?

Simon: It seems that a lack of experience of European policy makers and legislatures with the topic of whistleblowing has likely contributed to delays in many Member States. Until very recently, whistleblowing legislation was relatively unknown to most law makers and legal experts alike. Furthermore, the Directive’s provisions will foreseeably have a very significant impact on existing national laws and legal standards, often completely changing existing national laws and principles, which has led to some intense debate in many Member States.
 
One major point of contention was, and still is, the question as to whether law makers should extend the scope of application of the law to also cover reports and disclosures of breaches of national law.
 

Read more: WIN Series: Implementing the EU Directive on Whistleblowing – Whistleblower protection laws must cover breaches of national law

 
While such a unifying legislative approach, now commonly called “gold plating,” would quite certainly result in a higher level of whistleblower protection, and – consequentially – a higher number of illegal activities being uncovered or public funds being recovered, some political actors argue against this expanded approach. These voices claim that this approach would also bring about significant additional costs for private companies, especially since their internal whistleblowing units would have to deal with increased level of reporting.
 
Yet, if you look at past experiences of compliance departments, it is quite clear that a uniform standard of whistleblowing rules will by and large not increase the burden due to the amount of reporting, but in fact decrease the burden for implementation costs for private companies and public administrations alike. This is because it would save compliance officials and those otherwise responsible for handling whistleblowers, a lot of time and energy they would otherwise have to spend determining the applicable conflicting EU and/or national legal standards in each individual case.
 

Read more: 2018 Impact Assessment accompanying the proposal for a Directive of the European Parliament and of the Council on the protection of persons reporting on breaches of Union law


Ida: You have described considerable apprehension on the part of policy makers to undertake the required reforms and introduce these mechanisms, are there legal implications for having delayed in doing so?

Simon: There are several legal as well as political consequences that flow from the Member States’ failure to meet the transposition deadline. First of all, the Commission initiated infringement proceedings against 24 of the 27 Member States on 27th January 2022, which may have significant financial and political repercussions depending on how each Member State acts in the future.
 
More importantly, however, is that most Member States have failed to realise that many of the Directive’s provisions entered into force automatically on the 18th December last year – the day after the transposition deadline expired.
 
This “direct effect” of the Directive occurs by virtue of principles established by case law of the European Court of Justice (ECJ). According to these principles, a directive’s provisions automatically enter into force if they impose obligations or detrimental legal effects on the Member State that violated its duty of transposition to the extent that the individual provisions are unconditional and sufficiently precise to be applied directly.
 
While these principles naturally leave some room for interpretation, it is quite clear that at least the Member States’ obligations to establish internal whistleblowing channels across public administrations, as well as many elements of protection for public sectors whistleblowers, have thus actually come into force already.
 
This not only allows whistleblower to rely on these provisions regardless of whether a national transposition law exists, but also puts many Member States in a state of constant violation of Union law for as long as they don’t establish functioning whistleblowing units in the administration - which most have failed to do.
 
Finally, the whole situation is of course significantly detrimental for potential whistleblowers and their need for legal certainty, since Member States inability to meet their obligations under EU law has yet again complicated the current patchwork of different legal rules on whistleblower protection across Europe.

Ida: Given the significant delay of EU countries in adopting the necessary legislation to transpose the Directive – why do you think most countries failed to meet the official deadline?

Simon: It seems that a lack of experience of European policy makers and legislatures with the topic of whistleblowing has likely contributed to delays in many Member States. Until very recently, whistleblowing legislation was relatively unknown to most law makers and legal experts alike. Furthermore, the Directive’s provisions will foreseeably have a very significant impact on existing national laws and legal standards, often completely changing existing national laws and principles, which has led to some intense debate in many Member States.
 
One major point of contention was, and still is, the question as to whether law makers should extend the scope of application of the law to also cover reports and disclosures of breaches of national law.
 

Read more: WIN Series: Implementing the EU Directive on Whistleblowing – Whistleblower protection laws must cover breaches of national law

 
While such a unifying legislative approach, now commonly called “gold plating,” would quite certainly result in a higher level of whistleblower protection, and – consequentially – a higher number of illegal activities being uncovered or public funds being recovered, some political actors argue against this expanded approach. These voices claim that this approach would also bring about significant additional costs for private companies, especially since their internal whistleblowing units would have to deal with increased level of reporting.
 
Yet, if you look at past experiences of compliance departments, it is quite clear that a uniform standard of whistleblowing rules will by and large not increase the burden due to the amount of reporting, but in fact decrease the burden for implementation costs for private companies and public administrations alike. This is because it would save compliance officials and those otherwise responsible for handling whistleblowers, a lot of time and energy they would otherwise have to spend determining the applicable conflicting EU and/or national legal standards in each individual case.
 

Read more: 2018 Impact Assessment accompanying the proposal for a Directive of the European Parliament and of the Council on the protection of persons reporting on breaches of Union law


Ida: You have described considerable apprehension on the part of policy makers to undertake the required reforms and introduce these mechanisms, are there legal implications for having delayed in doing so?

Simon: There are several legal as well as political consequences that flow from the Member States’ failure to meet the transposition deadline. First of all, the Commission initiated infringement proceedings against 24 of the 27 Member States on 27th January 2022, which may have significant financial and political repercussions depending on how each Member State acts in the future.
 
More importantly, however, is that most Member States have failed to realise that many of the Directive’s provisions entered into force automatically on the 18th December last year – the day after the transposition deadline expired.
 
This “direct effect” of the Directive occurs by virtue of principles established by case law of the European Court of Justice (ECJ). According to these principles, a directive’s provisions automatically enter into force if they impose obligations or detrimental legal effects on the Member State that violated its duty of transposition to the extent that the individual provisions are unconditional and sufficiently precise to be applied directly.
 
While these principles naturally leave some room for interpretation, it is quite clear that at least the Member States’ obligations to establish internal whistleblowing channels across public administrations, as well as many elements of protection for public sectors whistleblowers, have thus actually come into force already.
 
This not only allows whistleblower to rely on these provisions regardless of whether a national transposition law exists, but also puts many Member States in a state of constant violation of Union law for as long as they don’t establish functioning whistleblowing units in the administration - which most have failed to do.
 
Finally, the whole situation is of course significantly detrimental for potential whistleblowers and their need for legal certainty, since Member States inability to meet their obligations under EU law has yet again complicated the current patchwork of different legal rules on whistleblower protection across Europe.


Ida: Despite the apprehension of some governments to implement the minimum standard requirements, the Directive includes a ‘more favourable’ clause and civil society, as well as the Commission, has encouraged Member States to go beyond the minimum standards. Some countries, such as France, have taken the opportunity to implement more comprehensive laws which go further than the minimum requirements – what are the benefits of this more progressive approach?

Simon: One fundamental advantage for whistleblowers as well as all other parties concerned in whistleblowing cases is that only comprehensive laws with a broad material scope can truly accomplish the directive’s goal of unifying whistleblowing standards and thus create a level of legal certainty and coherence which the minimum standards alone cannot fully achieve.

Due to the limits of EU competences, the Directive could only cover legal areas which have a direct material connection to matters regulated by EU law, which resulted in a very complex regulatory structure with long annexes detailing in which specific cases whistleblowers would be protected. The Directive itself acknowledges that the current patchwork of insufficient whistleblower protection will only end if the Member States voluntarily expand the scope of the directive by extending it to matters of national law. Some Member States, like for example France and Denmark, have correctly identified these issues and acted accordingly, while others have not.

Beyond that, there are various matters of whistleblowing legislation which the Directive does deal with in detail that would consequentially benefit from well-designed national rules and regulations. One example of this are disclosures in the general public interest, i.e. matters which are of fundamental importance for a democratic society and should thus be discussed in public, like, for example, the issue of mass-surveillance raised in the Snowden case and others. The Directive does not explicitly deal with such matters since its main focus is on improving the effective enforcement of existing EU laws, not on whether current laws and practices actually serve the greater good of society or in fact pose a threat to the public interest or the protection of human rights in the long run.

These and other matters of fundamental importance to democracy are to be decided by the sovereign Member States themselves and should be addressed head-on if a country wants to create a national whistleblowing law that truly serves as a comprehensive framework for all whistleblowing cases.
 

Read more:  The new French whistleblowing law: renewed hope for European whistleblowers?


Ida: You have described how EU directives can have “direct effect” – does that mean EU citizens can rely on the EU Directive directly even if their governments haven’t transposed it into their national legal systems yet?
 
Simon: To some extent they can, yes. You can think of the European Court of Justice’s (ECJ) direct effects doctrine as something of a punishment for Member States for their failure to transpose a directive in time, which in turn results in legal benefits for that state’s citizens.
 
From this idea it follows that citizens can generally rely on the provisions of a directive if the other party is the state, which, for example, leads to public servants being able to invoke the rights of the Directive directly after the transposition deadline has expired - in this case starting from 18th December 2021.
 
Importantly, this principle applies to all state-affiliated entities, no matter if the non-transposition is their fault or not, including, for example, public municipalities. On the other hand, if the other party has no direct affiliation with the state, especially if the employer or contractor is a private company, the direct effects doctrine does not apply. Nonetheless, the Directive can have some effect on private relationships by way of interpreting national laws in accordance with the principles of the Directive, which is another doctrine set up by the ECJ.
 
Even if we are talking about civil servants or public employees, it is, however, important to keep in mind that only those provisions which are unconditional and sufficiently precise to allow for direct application may be applied directly. According to the ECJ’s case law, this inter alia excludes provisions from direct effects which grant Member States a certain level of discretion when transposing them. This in turn affects whistleblower protection in cases of external reporting to public authorities, which is predicated upon the establishment of a proper whistleblowing authority and therefore most likely can not be invoked so long as a Member State has not yet set up such authorities or not named specific national authorities to be responsible for external reports.
 
This leaves us with primarily two scenarios in which citizens can directly rely on the Directive’s whistleblower protection provisions:
 

  • First, they can in principle claim protection if they report breaches within the scope of the Directive internally within administrative entities with 50 or more employees and/or civil servants.
  • Second, they can get protection under most of the public disclosure provisions, e.g. if they publicly disclose information about breaches which constitute an imminent or manifest danger to the public interest.

In all of these cases, however, one has to keep in mind that the provisions of the Directive and their direct effects are ultimately subject to future interpretation by the ECJ, yet again adding to the legal uncertainty many whistleblowers are still facing in their respective countries.


Ida: It sounds as though only certain provisions of the Directive will therefore have ‘direct effect? What mechanism would you say are enforceable as of 18 December 2021?

Simon: From the four main regulatory elements - 1. A comprehensive anti-retaliation law in favour of whistleblowers; 2. Obligating organizations, both in the private and public sector, to set up their own whistleblowing reporting channels as addressees for internal reports; 3. Establishing specialized national whistleblowing authorities as addressees for external reporting; and 4). Adopting whistleblowing-specific penalties into national law - only the obligation to establish internal whistleblowing units in the public sector as well as certain anti-retaliation provisions for whistleblowers in the public sector can be assumed to have direct effects.  As mentioned before, the duty to establish public whistleblowing authorities grants Member States ample discretion on how exactly those authorities will be structured and how they should function in practice, which – in all likelihood – excludes them from direct effects under the ECJ’s case law.
 
The same can be said for the whistleblowing-specific penalties, which place a criminal burden on private citizens and can therefor only be applied once they are transposed into national law.  Generally speaking, the Directive’s provisions have no direct effects in the private sector but may inform the way in which national courts interpret existing statutes and legal rules that concern whistleblowing cases. Nonetheless, if public sector whistleblowers invoke the rights and privileges under the Directive in cases of internal reporting and public disclosures, those provisions may serve as a powerful tool to fight retaliation, since the conditions and legal consequences of protection are significantly more potent than under most existing national laws.
 
There is even a case to be made for an additional large-scale right to disclose breaches of EU law directly to journalists. According to one provision in the Directive, whistleblowers may immediately disclose information to journalists or the general public if they have sufficient reason to assume that the whistleblowing authorities do not function properly, e.g. if an authority appears to be in collusion with the perpetrator of a breach. If one assumes that the worst kind of dysfunctionality is the non-existence of an appropriate body to report to, then whistleblowers can reasonably claim that they are allowed to disclose any kind of information within the material scope of the Directive to a journalist without any further requirements for as long as a Member State fails to establish national whistleblowing authorities with proper external reporting channels. It is, however, hard to tell if the ECJ would eventually follow such a rather bold interpretation of its own direct effects criteria.

Ida: Further to the legal “direct effects” you have described, will the Directive have any indirect consequences?

Simon: There are various potential indirect effects of the Directive which may benefit whistleblowers in certain cases. For one, national courts now have to interpret national laws in general accordance with the principles of the Directive after the transposition deadline has expired even before a national transposition law is in effect. Furthermore, the Directive’s provisions will in all likelihood affect the European Court of Human Rights’ current case law on whistleblowing, since the court has already declared that it draws from the Directive’s provisions as one legal source that informs its own decisions on the protection of freedom of speech.
 
From a solely national perspective, the Directive can also incentivise national legislators to create a coherent national whistleblowing statute in order to harmonize the level of protection for whistleblowers and the handling of whistleblowing cases in practice. In Member States that consider a discrepancy in legal standards caused by differences in EU and national law to potentially violate the rights for equal treatment under their national constitutions, such as in Germany, Austria and Italy, harmonizing the standards of protection and improving upon the current state of whistleblowing laws in their country may even be a constitutional necessity.

 
Read more: EU Directive: Experts say Germany must change approach to protect whistleblowers 

Ida: You said that the EU Directive may affect the case law of the European Court of Human Rights with respect to the protection afforded to whistleblowers under Article 10 of the Convention on Human Rights (freedom of expression). What does this mean for protections afforded under the Directive?
 
Simon: The interplay of the two protection schemes under the rules of the Directive and the European Court of Human Right’s case law is rather complicated and not always easy to predict but will certainly play an important role in the future.
 
On the one hand, the Directive will likely inform the court’s case law, especially to the extent that it tends to be more favourable for the protection of freedom of speech. This, for example, concerns the right for direct external reporting and the irrelevance of a whistleblower’s motives for his or her protection, both of which in not yet found in the court’s case law.
 
On the other hand, the Directive explicitly mentions the court’s case law as a source of reference for the level of protection granted under the Directive. Bearing in mind that the case law grants some additional bases for protecting public disclosure in cases of fundamental importance for the public interest which are not explicitly reflected in the Directive. Therefore, the European Court of Human Rights’ decisions may serve as an interpretative tool to expand protection under the Directive as well as play a separate and important role as an additional source of protection in cases that are not sufficiently covered by the Directive.



Read more: Luxleaks whistleblower: ECHR reconsiders criminalisation of whistleblowing


Ida: Simon, thank you for your time and for sharing your insights with us on this important matter. WIN works with over 30 partners across EU Member States who are monitoring their government’s approach and progress of transposition. The question of whether the Directive has any direct effect is repeatedly asked and so I am very grateful for this opportunity to share your expertise to help all the human rights activists, anti-corruption advocates and legal practitioners who take a keen interest in the topic.

By Jean-Philippe Foegle, PhD candidate and researcher on whistleblowing legislation and Country Editor for the EU Whistleblowing Monitor.

On 16 February 2022, the French parliament passed a new law on the protection of whistleblowers. This law, which implements EU Directive on the protection of reporting persons, goes further than the minimal standard set by the Directive to include international best practices, making it the most ambitious transposition in the European Union at the present time.

Background

One of the specificities of the new law resides in the fact that it did not originate from a government initiative. The law was indeed introduced by a member of parliament (Sylvain Waserman) in strong collaboration with civil society (30 organisations gathered around Maison des Lanceurs d'Alerte, a French whistleblowing NGO). Civil society and Mr Waserman started work on whistleblower protection in the context of the Parliamentary Assembly of the Council of Europe's 2019 Report on the protection of whistleblowers, which encourages member states to go further than the minimum standards set out by the Directive and include international best practice principles for whistleblower protection.

Both civil society and Mr Waserman then worked on drafting provisions of the law and advocated together, trying to convince the government, independent bodies (DDD, CNCDH) and other MPs that transposition should be, not only quick and thorough, but should also go beyond the required provisions of the Directive and meet these international best practices.

On 17 November 2021, the law was unanimously adopted during its first reading in the National Assembly From December 2021 to end of January 2022, the French Senate tried to strike down the more progressive provisions of the law, but finally gave up in the face of the strong united voice and mobilization of civil society

A broad scope of protection for whistleblowers and NGOs

The law, which formally passed on 16 February 2022, is characterized by its particularly broad scope of application in contrast with laws in other countries. Articles 1 and 2 of the Act specify that not only are employees protected, but also any natural person who reveals or reports violations of the law or international commitments, or indeed any threat to the public interest. The definition of whistleblowing in France’s current legal framework under the ‘Sapin 2’ law - already considered the broadest in the world - has been maintained, despite the fact that the Directive only applies to persons who (1) disclose or report information on violations of EU law; and (2) where there is a work-based relationship.

Similarly, while the Directive only requires protection of natural persons who facilitate or assist whistleblowers as well as related third-persons and entities that the whistleblower owns, “the Waserman law” also applies to any NGO that acts as a facilitators. This means that those who assist whistleblowers by offering them support, and in particular legal support, are offered the same level of protection.  

Finally, whilst in the majority of other jurisdictions, military personnel are excluded from whistleblower protection, in France they will now be afforded the same level of protection as other civil servants, so long as they do not disclose information that may harm national security.

Robust protection standards

The new law also sets out mechanisms of protection that go far beyond the Directive’s minimum standards.

  • Anti-SLAPP provision

Firstly, the new law provides that whistleblowers who are victims of SLAPPs – or ‘Strategic Litigation Against Public Participation’ - or retaliation in an employment context, such as dismissal, layoff etc. may be granted financial assistance. Article 5 of the law states that, where a whistleblower can make a prima facia case that they have been victimized, or subjected to a SLAPP suit, they make an application to a judge, who has the power to force the organization to provide substantial funding to cover legal fees and, where relevant, funding to cover their living expenses where their financial situation has deteriorated. In addition to that, regulators are required to provide financial and psychological assistance. The judge can also require the organization to provide the whistleblower up to 5000 euros to help them pay their vocational training fees.

  • Immunities from criminal liability

Secondly, whilst the Directive provides that whistleblowers shall not incur liability in respect of the acquisition of, or access to, the information which is reported or publicly disclosed, provided that such acquisition or access did not constitute a self-standing criminal offence the new French law goes further. It provides wider immunity for whistleblowers who cannot be sentenced for any offenses committed in order to gather proof that a breach or harm to the public interest has occurred, as long as they became aware of it "in a lawful manner."

To use the example provided by Mr Waserman, "no one has the right to put microphones in the office of his boss to find out if there is something to be found and blow the whistle, but" if a whistleblower is shown a "report proving that a factory discharges mercury into a river, he/she has the right to steal it to prove the facts of which he/she have lawful knowledge."

Sanctions and provision of assistance

The Waserman law strengthens existing sanctions against those who retaliate against whistleblowers, whilst reinforcing the French ombudsman's ability to assist whistleblowers.

Whilst the Directive provides for effective, proportionate and dissuasive penalties applicable to natural or legal persons retaliating against the whistleblower - without specifying which ones – the new law imposes criminal sanctions on those who retaliate: A sentence of three years of imprisonment and a fine of 45,000 euros can be ordered against those who victimize or discriminate against a whistleblower. In addition to this, judges may impose 60,000 euro fines on companies who taking a SLAPP action against a whistleblower. Whistleblowers can also use class actions against their employer when they are discriminated or victimized.

Finally, the French Ombudsman - ‘Défenseur des Droits’ - has had its powers to assist whistleblowers strengthened. It can make investigations, file third-party interventions and make recommendations. It can also certify that the whistleblower meets the criteria to be protected, in order to help him/her access the various support measures and services now available.

See France’s Page to keep up to date with transposition progress.

By Ida Nowers (Whistleblowing International Network) and Emanuel Delia (Blogger with a special interest in Malta politics)

In 2019, the European Union adopted a landmark Directive on Whistleblowing requiring Member States to undertake sweeping reforms to encourage and protect individuals who report wrongdoing. EU governments had until 17 December 2021 to ‘transpose’ the Directive into their national legal systems.

The mission to harmonize whistleblower protection across Europe via common minimum standards however is far from realised. As of today (15 December 2021), two days before the official deadline, only a handful of countries have passed new laws - Denmark, Sweden, and Portugal.  There have been reports online of a new law in Austria, but there is no official information available. While government delays in implementing Union rules are commonplace, and the transposition period coincided with the challenges of the pandemic, encouraging those with information about potential harm to speak up should have been a priority for EU governments. Putting transposition on the backburner was dangerous given the increased risks both of public safety and corruption during Covid19.

Whistleblowing International Network (WIN) and Transparency International (TI) were aware of these delays and analysed progress and the approach governments were taking just over halfway into the two-year transposition period. Over two thirds (18 of 27) had either not started at all or had made minimal progress. While some countries demonstrated good open practice by engaging in wide stakeholder and public consultation on intentions and draft proposals, this was in stark contrast to the secrecy in others. Malta is a case in point.

Read more: Can transposing the Directive be done on time? Maybe, but not at the cost of transparency and inclusiveness.

Malta’s Bill – a sudden development

On the 15 November 2021 - a month prior to the deadline - Malta published a new Bill entitled ‘Att dwar il-Protezzjoni ta’ Informatur’ or ‘Protection of the Whistleblower Act’. The draft law purports to transpose the Directive by amending the current legislation that has been in place since 2013.

Despite some media reports of progress announced by the Minister for Justice, Edward Zammit Lewis, no official information was publicly available. In fact, until the sudden publication of a draft law last month, Malta was still listed as one of four countries ‘not started’ on the EU Whistleblowing Monitor along with other outliers - Luxembourg, Cyprus and Hungary.

Public institutions in Malta had already highlighted the severe lack of stakeholder consultation when it came to implementing a new legal framework. In 2020, Maltese ombud’s institution, the ‘Uffiċċjutal-Ombudsman Parlamentari,’ stated in its annual report that a new obligation to handle private sector whistleblower reports would conflict with the limited powers it had under the Ombudsman Act to investigate reports within public administration. Commenting again on the lack of consultation for the transposition Bill the 2021 report stated:

“The Ombudsman would be failing if he did not record his disappointment at this complete failure of consultation. This is to prevent such incidents from happening again.” 

Despite this, and the repeated public calls from Repubblika - a civil society organisation in Malta focused on the rule of law - for the government to meaningfully engage with stakeholders and civil society, the government did not take heed. As feared, the bill has now been forced through, and early analysis of its provisions does not bode well for protecting whistleblowers in Malta.

Early analysis of the new law is not optimistic

Upon first assessment of the Maltese law, a fundamental flaw may undermine the entire project. The proposed scope of the law would only protect individuals who report to specified formal whistleblowing units. In comparison, the UK which adopted the first dedicated whistleblowing legislation in Europe in 1998, a public interest disclosure internal to the employer is protected if made to ‘any responsible officer’ or anyone ‘reasonably believed to be responsible for the wrongdoing’ allowing for ordinary raising of concerns to line management the same protection as reports made via the whistleblowing procedure. A similar broad approach is found in Ireland and France.

Worse still, the new units to handle disclosure do not have any of the guarantees for independent channels free from conflicts of interest with access to organisational leadership necessary for credibility, and safety for whistleblowers.

Read more: WIN Series – Implementing the EU Directive on Whistleblowing: All internal reporting must be clearly protected by law

Further, Malta’s experience since the introduction of the first Whistleblower Protection legislation in 2013 has shown that the effective control the government has on the competent authority that was set up to decide whether whistleblower ‘status’ is to be awarded to individuals reporting wrongdoing has made the law entirely unworkable. Potential witnesses have faced material consequences as a result of information they provided to support their application for whistleblower status and applications have been rejected, possibly because acceptance would have impacted the interests of those enjoying considerable influence over the decisions of the competent authority. The new law does not correct this serious problem.

Another worrisome loophole which threatens now to undermine whistleblower rights in Malta is found in problematic provision for evidential proof requirements to be successful in enforcing rights. Whilst the Directive is clear that burdens of proof should be reversed so that the onus is on the employer to show any detrimental treatment was not in any linked to the reporting of wrongdoing, the specific qualified exclusion of retaliation where it is “justifiable for administrative or organisational reasons” ­that is specifically included in the Maltese law is an easy claim for most employers to prove, thus failing to offer the protection foreseen by the EU Directive.

Read more: WIN Series – Implementing the EU Directive on Whistleblowing: Burden of proof for whistleblower claims must be fully reversed

Whilst the new law may seem an improvement to the current system on paper, loopholes as significant as those set out above will undermine trust and confidence in the protection, with people more likely choosing to stay silent or suffering for speaking up and creating a chilling effect on potential whistleblowers in the future.

Malta’s legislative whistleblower protection framework has so far proven entirely ineffective. The law was only applied once in a case which failed to lead to any convictions of the wrongdoers and was severely criticised by the courts as forensically baseless, and from outside the courts as a politically motivated attempt to discredit an opposition MP. Potential whistleblowers in major corruption scandals involving senior government officials including Malta’s prime minister, have either been denied whistleblower protection or have said they have been advised not to rely on the level of protection provided by law.

In September, the Network of European Integrity and Whistleblowing Authorities NEIWA - of which no Maltese authority is a member - adopted a declaration calling on EU legislatures to ensure correct transposition of the Directive, specifically recommending that external reporting channels set up by the competent authorities have the sufficient organisation and financial resources and autonomy needed to perform their functions robustly and where protection status is foreseen under national law, ensure reporting persons are granted it. The case of Jonathan Ferris highlights the dilemma faced by potential witnesses to wrongdoing in Malta who risk punishment ranging from dismissal from their employment to imprisonment if they reveal information that could lead to the prosecution of corruption before they are granted whistleblower protection.

The EU Rule of Law reports on Malta for 2020 and 2021 both observed that there has been a “rather limited” use of the framework which suggests it is inadequate in meeting its core objective of protecting potential whistleblowers from the risk of retribution.  The new Bill does not address these fundamental concerns.

Tom Devine, Legal Director of the Government Accountability Project based in Washington DC and a founding member of WIN states:

“Whilst the new Maltese transposition legislation is sophisticated, it is like a train with all the bells and whistles but a defective, dangerous engine. As a whistleblower adviser for 43 years, I would warn anyone that relying on these rights is like spending time and money to hammer the last nail in their own professional coffin. Behind all the gaudy cosmetics, this law is a Trojan horse.”

Whistleblower protection is a matter of fundamental human rights

It is worth noting that the legal protections enshrined in EU Directive exist in parallel to the whistleblowing rights which have evolved under the European Convention of Human Rights (ECHR) and jurisprudence of the Court (ECtHR). Whistleblowers are afforded special protection under Article 10 ECHR rights to freedom of expression and the public’s right to know. The Directive explicitly draws upon the case law of ECtHR as well the principles developed by the Council of Europe in the Committee of Ministers Recommendation (CM/Rec/2014/7) on the protection of whistleblowers. All 27 EU member states are also members of the Council of Europe, including Malta.

The Council of Europe Recommendation is clear that there should be few barriers to reporting concerns about wrongdoing or risks internally, that protection against retaliation should be as close to automatic as possible (see Principle 15 and paragraph 63 of the Explanatory Memorandum) and that the choice of channels for reporting or disclosing information must be flexible to the individual as each set of circumstances will be different (Principle 14). It also makes it clear that reports or disclosures should be investigated promptly, and the results acted on by the employer, appropriate regulatory body, law enforcement or supervisory body in an efficient and effective manner (see Principle 19). The Recommendation has been in place since 2014 and it is time for Malta to take the protection of whistleblowers seriously as a matter of freedom of expression and democratic accountability.

Read more: 2019 Report of the Rapporteur on Whistleblowing to Parliamentary Assembly of the Council of Europe – ‘Improving the Protection of Whistle-blowers all over Europe.’

In our view, Malta is in particular need of an effective whistleblower protection framework that encourages those who witness wrongdoing to speak up and to expose suspicions of illicit or unethical practices. Whistleblower protection is a key tool in any meaningful effort to combat corruption. Whistleblowing has been found to be the single most effective method to uncover fraud – in its impact assessment for the Directive, the Commission calculated that the lack of whistleblower protection in the area of public procurement alone amounted to in the range of 5.8 and 9.6 Billion euro annually. It is estimated that total cost of corruption across the EU is between 179 and 990 billion in GDP each year.

Over the last few years Malta has earned a reputation as being unwilling or unable to combat institutionalised corruption particularly in the public sector. It has been said that Malta has a shadow economy’ and has experienced a corruption nosedive scoring just 53% on TI Corruption index. Malta is considered a gateway to EU, yet it is estimated that it loses at least 11 % of its GDP to corruption every year and the country has been grey-listed by the Financial Action Task Force.

If Malta remains unable to clean up its act, a vulnerability exists for the global financial system and particularly for the EU. In order to stop Malta being exploited as a backdoor to Europe for financial criminals and international organised crime, whistleblowers who expose weaknesses in controls or complicity in wrongdoing must be fully protected.

In its 2019 evaluation report on Malta, the Council of Europe’s GRECO urged Malta to review its whistleblower protection rules. The recommendations by GRECO are not reflected in the new Bill.  

The assassination of the Maltese journalist Daphne Caruana Galizia on 16 October 2017 was a wake-up call in Europe and an horrific reminder of Malta’s vulnerability to organised crime, a damaging culture of collusion and cover-up linked to the highest political levels. This means there are serious risks to people who work to expose uncomfortable truths, including whistleblowers. At the time it presented its proposal for a new directive to protect whistleblowers, Frans Timmermans, the Vice-President of the European Commission stated in April 2018 that the proposals would help to ensure that freedom of expression and freedom of the media are defended in Europe and protect those who act as sources for investigative journalists.  In relation to this we recall the experience of Maria Efimova, one of Daphne Caruana Galizia’s sources who had to flee Malta because of the risk to her safety after she blew the whistle on the wrongdoing of her employer Pilatus Bank. Maria Efimova has been awarded special recognition for her whistleblowing yet she remains ineligible for whistleblower protection in Malta and is still being pursued by the Maltese authorities.

Urgent intervention is needed today

Repubblika, with the support of the EU Whistleblowing Monitor partners, the Whistleblowing International Network, Transparency International EU and Eurocadres, express their dismay at the actions of the Maltese Government to push through flawed amendments that do not meet the standards nor fulfil the spirit of the EU Directive to protect whistleblowers.  We jointly call on the Maltese authorities to urgently conduct a broad, transparent, and effective consultation on what is needed to protect whistleblowers in Malta and ensure a correct transposition of the EU Directive.

Read more:

The text of the EU Directive can be read here.

Addendum: Other countries criticised for their approach to transposition.

In the Netherlands, civil society have urged for quality over speed and serious concern for the Dutch approach to implementation, which had ignored all comments and consultation recommendations to fix significant damaging effects of the minimalistic approach and resulting hybrid reporting framework. Legal experts in other countries have warned of legal absurdities such a verbatim’ transposition would create and experts are now publicly urging for the Dutch draft to be sent back for significant revision. The Commission have already stated that provisions to allow for exceptions in the obligations on corporate groups to establish confidential channels, as seen in the Danish Bill, equate an ‘incorrect transposition.’

This article was first published 24 March 2021 was the first in a series of blog posts to launch Transparency International & the Whistleblowing International Network's joint report Are EU Governments Taking Whistleblower Protection Seriously? Progress Report on Transposition of the EU Directive. By Marie Terracol, Transparency International and Ida Nowers, Whistleblowing International Network

Transposition of the Whistleblower Protection Directive is a chance to ensure that people can expose abuses safely across the European Union – but EU nations might be letting the opportunity pass us all by.

Whistleblowers are the heroes of our troubled times and whistleblowing is one of the most effective ways to uncover corruption and other harm to the public interest. Yet all too often, those who speak up face personal risk and retaliation in the form of dismissal, blacklisting, legal harassment and even physical harm.

Since the COVID-19 emergency began, constant concerning reports of threats against health care professionals speaking out about the realities of the pandemic have emerged across Europe, from Poland to the Czech Republic to Slovenia. Widespread corruption in health care and public procurement during the pandemic highlights just how much we need whistleblowers to expose abuses to safeguard public health and funds. With government spending going through the roof, from millions of euros to purchase health equipment to billions in economic stimulus packages, it is more essential than ever to ensure public funds are allocated democratically and reach intended beneficiaries.

In times of crisis, wrongdoing costs lives, and normal oversight and accountability mechanisms are seriously weakened. It is important and urgent, to ensure that those who become aware of misconduct speak up, without fear of retaliation, and that these concerns are acted on.

Transposing the EU Directive on Whistleblower Protection: an obligation and an opportunity

Robust legislation is vital to protect whistleblowers and ensure reports of harm are addressed. In 2019, the European Union adopted a Directive on Whistleblower Protection. 27 EU Member States have until 17 December 2021 to comply with its standards, by “transposing” it into their national law. The Directive contains many ground-breaking provisions that, if properly implemented, will improve weaknesses and fill important gaps in protection across most EU countries.

However, EU governments must avoid a minimalistic (or verbatim) approach to the transposition. Member States should seize this opportunity to go beyond the minimum standards required by the Directive and adopt comprehensive national legislation that meets international best practice principles. This is the only way to commit to protecting every single whistleblower speaking up in the public interest.

Tracking EU government progress

Minimal, delayed or even incorrect implementation of the Directive could further endanger and discourage whistleblowers. To ensure governments take whistleblower protection seriously, Transparency International and the Whistleblowing International Network are monitoring the transposition process across all 27 Member States closely, and today published a report looking at progress one year and two months into the two-year timeframe.

Most EU countries are lagging behind

By 17 February 2021, two-thirds (18) of member states had not started or had made minimal progress towards implementing the Directive. And it is uncertain whether any EU country will complete transposition by the December deadline.

This lack of urgency is concerning. Corruption and other serious harm to the public exposed during the pandemic, and the huge amounts of relief funds at stake, should spur EU member states into immediate action. Unfortunately, they seem to have done the opposite. Whilst it is understandable that governments are currently dedicating significant resources to dealing with COVID-19, it would be a mistake to think implementing whistleblowing legislation is not a high priority during a health emergency. The very purpose of such legislation is to enhance the enforcement of law and policies, thus preventing loss or harm and preserving the rule of law. Critical times, such as those we are living through today, only accentuate that need.

With less than nine months left until the deadline, all EU countries, and especially those which have made minimal or no progress towards transposing the Whistleblower Directive, must intensify their efforts.

More transparency and inclusiveness needed

A sense of urgency, however, should not mean governments rush through flawed legislation just to meet the deadline, skipping important steps and ignoring stakeholders. In several countries, transparency and inclusiveness in the transposition process is seriously lacking. Without proper consultation with all relevant stakeholders – including civil society organisations, trade unions and journalists’ associations – national legislation is unlikely to offer effective protection in practice.

See blog on the transparency and inclusiveness of the process

A missed opportunity to protect whistleblowers?

It is worrying that some countries are not fully embracing the recommendation of the EU Commission and whistleblowing experts and seize the opportunity to adopt comprehensive and coherent legislation.

The Czech Republic, Denmark and Sweden are to be commended for adopting a broad scope, but still fall short of best practice when defining what whistleblowers will be able to safely report. Estonia and Latvia are leading the way in that regard by deciding, so far, in favour of legislation covering a wide and coherent scope of whistleblowing situations. Serious debates on the issue of scope are ongoing in other countries, such as Germany and Finland.

In the Netherlands, the draft bill curiously foresees parallel reporting procedures for breaches of EU law and breaches of national law, with different obligations for those handling them.

EU governments must urgently adopt whistleblowing laws which provide high-level protection, beyond the minimum standards of the Directive, to ensure every single whistleblower is encouraged and supported in speaking up in the public interest. They should also prioritise a transparent and inclusive transposition process. Only then can whistleblower protection laws across the EU be fit-for-purpose and live up to the promise of the Directive.

Read Transparency International and WIN’s report Are EU Governments Taking Whistleblower Protection Seriously? Progress Report on Transposition of the EU Directive.

Marie Terracol is the Whistleblower Protection Lead at Transparency International and Ida Nowers is the Law and Policy Coordinator at Whistleblowing International Network.