Public consultation on whistleblower protection
Eurocadres has sent in a reply to the public consultation of the European Commission on whistleblower protection. Our Executive Committee has also adopted an opinion paper that we sent in with our reply.
During 2016 Eurocadres – the Council of Professional and Managerial Staff – initiated a platform consisting of different European and national trade union organisations and confederations as well as NGOs calling for a European whistleblower protection. We set up a website collecting signatures, that to date has 82 organisations and more than 5100 individuals as signatories. An EU-wide whistleblower protection can save lives, environment and money. EU protection should cover all fields of competence horizontally and cover unlawful acts and wrongdoings, not just limit to illegal acts. Any reports on wrongdoings should be treated anonymously and swiftly.
European businesses have increasingly cross-border or multinational operations and therefore EU-wide whistleblower legislation would ensure that workers are treated equally across borders. Whistleblowing is, in most cases, related to protection of workers. Usually the person who blows the whistle detects a wrongdoing related to their work organisation. According to a report by Public Service International, the number of workers who need whistleblower protection during their career is as high as 7 percent. The same report also shows that the majority of whistleblowers try to report within internal channels several times and when that does not work, external. Going to the media is usually the last resort.
The Commission’s own Special Eurobarometer on Corruption has reported that 31% of the respondents state lacking protection as a reason for not reporting corruption. Making it unclear whether there would be appropriate protection is an efficient way to discourage whistleblowers from reporting their findings. In particular, regarding cross-border and cross-sectoral activities a lack of minimum protection across sectoral and geographical borders is a deterrent to reporting, making it difficult for potential whistleblowers to assess the legal situation. Furthermore, we would like to see a directive that covers both standard as well as non-standard forms of employment (i.e. freelancers, temporary agents, interns, contractors etc.) covering all stages of an employment process (starting from the recruitment process). It is important to add that trade union and worker representatives also need protection.
Clear rules and safeguards are needed in whistleblower legislation. Malicious or abusive reporting should be prevented at all costs: all disclosures should be made in good faith. A whistleblower protection must also contain a protection from criminal liability. This should, however, not be confused with protection from criminal liability when the whistleblower has been participating in a criminal activity and steps out and blows the whistle on that activity. The full protection from criminal liability should refer to the disclosure itself, and not from the disclosed criminal activity.
Reversed burden of proof is a key provision in any whistleblower legislation. An employer would be required to present proof of the motives when a whistleblower has lawfully shown that reprisals were an issue. Furthermore, the right to remain anonymous is vital both when disclosing information internally and externally. When disclosing externally to the media, journalists need a guarantee that can keep their source unrevealed.
Public and private bodies would benefit from legislation on whistleblower protection. Tax evasion, fraud, misuse of funding and public procurement are big enough economic reasons for going forward with legislation. Member states miss out on potential tax income. Also, let’s not forget about disclosing information on environmental damages, public health concerns or human rights violations. It is not always self-evident which practices now or in the past might have a consequential impact on our health in the future.
Many potential whistleblowers are afraid to report a wrongdoing because of many concerns. In particular, risking career prospects, stable income, retaliation, discrimination and harassment are the largest concerns. As we have witnessed in some of the publicised whistleblower cases, sufficient legal aid and covering legal costs become unbearable for the individual who blows the whistle. Harassment of whistleblowers and their families should be taken extremely seriously.
We urge the Commission to go forward with a directive on whistleblower protection. There is no good reason not to have legislation. Most of the EU member states do not have explicit legislation in place and tackling cross-border cases can prove to be extremely complicated (e.g. the Dieselgate scandal, LuxLeaks etc.). The legal provisions could build on the Council of Europe recommendation and most importantly covering both private and public sectors. To find the right legal basis is a concern, as it should cover horizontally and not be narrowed down to only sectoral level.
Also, a European public awareness campaign to highlight the benefits to the public interest would be crucial. Whistleblowers are unfortunately still seen as betrayers or snitches in some countries and this perception needs a change. The public have woken up by recent global tax-related wrongdoings, which would not have been revealed without whistleblowers.
 P 106, Special Eurobarometer 397. 2014. http://ec.europa.eu/public_opinion/archives/ebs/ebs_397_en.pdf