Europe Increases Protection for Whistleblowers

THE NEW DIRECTIVE EXTENDS THE PROTECTION OF INFORMANTS BY INCLUDING PRIVATE WORKERS AND INCREASING THE SCOPE OF APPLICATION TO GO BEYOND CORRUPTION

by Eleonora Montani, Dept. of Legal Studies, Bocconi
Translated by Richard Greenslade


The centrality of whistleblowing in the fight against corruption was clearly evident after the scandals of Dieselgate, Luxleaks, Panama Papers and Cambridge Analytica. Ever since, at European level and beyond, work has continued on legislation aimed at strengthening the protection of whistleblowers.

At the center of this effort is the need to provide adequate protection to those who in the course of their work learn of and report illegal behavior that could damage public interests. In fact, in a recent public consultation by the European Commission, 85% of respondents believed that workers rarely report unlawful behavior they become aware of or witness. The reason most cited to explain this behavior is fear of suffering negative legal or economic consequences.

Currently, only ten EU countries (France, Hungary, Ireland, Italy, Lithuania, Malta, the Netherlands, Slovakia, Sweden and the United Kingdom) have a comprehensive law protecting whistleblowers. In the other EU countries, the protection granted is partial: it only covers public employees or specific sectors (for example financial services) or specific types of irregularities (like corruption). However, the recent scandals brought to light by whistleblowers show how insufficient protection in a country not only has a negative impact on the functioning of EU policies, but can also spill over into other countries and into the Union as a whole.

In the directive approved by the European Parliament last April 16, a path to strengthening the protection of whistleblowers at European Union level is outlined. The number of strategic sectors that need protection is greatly increased, and now includes public procurement, financial services, prevention of money laundering and financing of terrorists, product safety, environmental protection and personal data, to name just a few.
Protection is extended to workers both in the public and private sectors, including facilitators and third parties connected to the people reported that may suffer retaliation in a work context. These include colleagues or relatives of reported persons, and legal entities that the reported persons possess.

Comprehensive protection against retaliation is addressed, including provisional reinstatement, sanctions for those who try to ostruct the whistleblowers, and the provision of legal and financial assistance for whistleblowers, an aspect that is ignored by Italian law. The aim of the directive is, among other things, to provide for more effective protection of the identity of the informants, taking into consideration even anonymous reports if sufficiently detailed. It also moves to guarantee access to compensation for damages - not only economic - to whistleblowers who are victims of retaliation.

The directive insists on the fact that whistleblowers are exercising their freedom of expression, and protects them even when they signal, in good faith, information that proves unfounded. It stresses the need for Member States to encourage whistleblowers to use internal reporting channels, deemed to be faster and more effective in resolving risks to the public interest. This also prevents unjustified reputation damage which may result from public disclosure of a report. However, it also extends protection to those who report through external channels or address the media directly, opting for public disclosure.

In conclusion, for the figure of the whistleblower, this represents recognition that may prove to be very important for the start of a legislative process that leads to the harmonization of national regulations and an enhanced appreciation of best practices.