ARE EU GOVERNMENTS TAKING WHISTLEBLOWER PROTECTION SERIOUSLY? - Progress report on transposition of the EU Directive
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ARE EU GOVERNMENTS TAKING WHISTLEBLOWER PROTECTION SERIOUSLY? Progress report on transposition of the EU Directive
Transparency International is a global movement with one vision: a world in which government, business, civil society and the daily lives of people are free of corruption. With more than 100 chapters worldwide and an international secretariat in Berlin, we are leading the fight against corruption to turn this vision into reality. www.transparency.org The Whistleblowing International Network is an international membership organisation and leading centre of global civil society expertise and innovation in whistleblowing law and practice. whistleblowingnetwork.org Are EU Governments Taking Whistleblower Protection Seriously? Progress Report on Transposition of the EU Directive Supported by a grant from the Open Society Policy Center in cooperation with the Open Society Initiative of Europe (OSIFE), part of the Open Society Foundations. Author: Marie Terracol Contributors: Anna Myers, Ida Nowers and all the country experts (listed on page 30) Reviewers: Matthew Jenkins, Adam Földes, Julius Hinks, John Devitt, Jan Dupák, Carina Paju, Nick Aiossa Cover: Miikka Luotio / Unsplash.com Every effort has been made to verify the accuracy of the information contained in this report. All information was believed to be correct as of February 2021. Nevertheless, Transparency International and the Whistleblowing International Network cannot accept responsibility for the consequences of its use for other purposes or in other contexts. ISBN: 978-3-96076-168-6 2021 Transparency International and Whistleblowing International Network. Except where otherwise noted, this work is licensed under CC BY-ND 4.0 DE. Quotation permitted. Please contact Transparency International – copyright@transparency.org – regarding derivatives requests.
TABLE OF CONTENTS
Germany ....................................................................... 24
Executive Summary ................................................. 4
Greece ........................................................................... 25
Status of the transposition process....................... 7
Hungary ........................................................................ 25
Transparency and inclusiveness .......................... 10
Ireland ........................................................................... 25
Transparency ................................................................ 11
Italy ................................................................................ 26
Inclusiveness ................................................................ 12
Latvia ............................................................................. 26
Towards comprehensive whistleblower Lithuania ....................................................................... 26
protection? ............................................................. 15
Luxembourg ................................................................. 27
Compliance with the Directive ................................... 15
Malta.............................................................................. 27
Meeting best practice .................................................. 15
The Netherlands .......................................................... 27
Country summaries ............................................... 19
Poland ........................................................................... 28
Austria ........................................................................... 19
Portugal ......................................................................... 28
Belgium ......................................................................... 20
Romania ........................................................................ 28
Bulgaria ......................................................................... 20
Slovakia ......................................................................... 29
Croatia ........................................................................... 20
Slovenia ......................................................................... 29
Cyprus ........................................................................... 21
Spain .............................................................................. 30
Czech Republic ............................................................. 21
Sweden .......................................................................... 30
Denmark ....................................................................... 22
National and international experts ..................... 32
Estonia ........................................................................... 22
Endnotes ................................................................. 34
Finland ........................................................................... 23
France ............................................................................ 23TRANSPARENCY INTERNATIONAL
EXECUTIVE SUMMARY
Whistleblowing is one of the most effective ways of uncovering
corruption and other wrongdoing. Robust legislation is vital to
protect whistleblowers against retaliation and other injustices,
and to ensure their reports are addressed.
In the past year, there has been no shortage of public good. It is especially critical in times of crisis,
reminders that the greatest challenges of our time where abuses can cost lives and when normal
cannot be solved unless wrongdoing is called out oversight of decision-making and accountability
and the truth exposed. The world is facing the mechanisms is weakened.
combined threats of a global pandemic, climate
It is important, even urgent, to ensure that workers
change and deep structural inequalities, made
who become aware of wrongdoing speak up,
worse by entrenched corruption. Often, the illegal
without fear of retaliation, and are listened to.
acts that exacerbate these crises are only brought to
light by individuals who blow the whistle on the
wrongdoing they encounter in their daily lives. In Whistleblower protection legislation
this way, whistleblowers have saved countless lives in the EU
and billions in public finances, and avoided
environmental disasters. Yet all too often, they face To protect whistleblowers from retribution, a strong
retaliation in the form of harassment, dismissal, legal framework is an important precondition. In
blacklisting, lawsuits, prosecution, threats or even most European countries, blowing the whistle is a
physical harm. risky decision to make, primarily because there is
no, or insufficient, legal protection for
Since the beginning of the COVID-19 emergency,
whistleblowers. In April 2018, the EU Commission
worrying reports concerning hospitals and public
found that only nine EU member states offered
authorities retaliating against healthcare
comprehensive legal protection:1 France, Hungary,
professionals for speaking out about the realities of
Ireland, Italy, Lithuania, Malta, the Netherlands,
the pandemic have emerged across Europe, from
Slovakia and Sweden.2 Latvia adopted a
Poland to the Czech Republic to Slovenia.
whistleblower protection law in October 2018, and
With government spending going through the roof, Croatia in 2019, bringing the number to 11. Yet even
from millions of euros to purchase health in these countries, loopholes remain and
equipment during the emergency to billions in enforcement is lacking.
recovery plans, it is more essential than ever to
ensure funds are allocated in a transparent way and
EU Whistleblower Protection Directive
that they reach their intended beneficiaries. In the
EU, the losses due to a lack of whistleblower In 2019, the European Union adopted the “Directive
protection in public procurement were estimated (EU) 2019/1937 of the European Parliament
at between €5.8 and €9.6 billion each year – in a and of the Council of 23 October 2019 on the
“normal” year. protection of persons who report breaches of Union
Whistleblowing is one of the most effective ways to law” (Whistleblower Protection Directive).3
detect and prevent misconduct that undermines the
4ARE EU GOVERNMENTS TAKING WHISTLEBLOWER PROTECTION SERIOUSLY?
The Directive contains many ground-breaking In addition, when a member state does not
provisions. It prohibits retaliation against transpose a directive by the deadline, the directive
whistleblowers, safeguards their identities in most could have a so-called vertical direct effect. This
circumstances and offers them several reporting mean that citizens would be able to invoke their
avenues. It sets obligations for organisations with rights under the directive. However, this would only
more than 50 workers to create internal reporting be in relation to the state, and not, for example, in
channels and requires companies, public relation to their company.
institutions and authorities who receive information
Nevertheless, countries are often late in their
on wrongdoing to follow up on these reports. It also
transposition, and many are failing to turn EU
expands the definition of whistleblower to include
directives into adequate laws.
not just employees, but individuals who report
wrongdoing encountered in a work-related context.
Best practice legislation
The 27 EU member states have two years from its
entry into force (until 17 December 2021) to comply While a significant step in the right direction, the
with the Directive. Whistleblower Protection Directive has loopholes
and weaknesses. Its main flaw is that it does not
Transposition into national law cover all whistleblowers who speak up in the public
interest, only those who report breaches of EU laws
EU directives set out standards that each EU in some areas. To address those weaknesses, EU
member state must meet, and each country must member states should not just fulfil their obligation
devise its own laws, regulations and administrative to meet the minimum standards required by the
provisions to comply with them. Directives need to Directive when transposing it. Instead, they should
be implemented or “transposed” into national law if seize the opportunity to go further, and bring their
national legislation does not already meet the national legal framework on whistleblower
minimum standards. protection into line with international standards and
best practice.
The benefit of this approach is that it allows
governments to adapt and tailor a directive to their
national legal systems and context. They are also Delays and incorrect or minimal
free to go beyond the minimum standards set by transposition of the Whistleblower
the Whistleblower protection Directive and adopt Protection Directive could further endanger
legislation that meets best practice. whistleblowers and discourage them from
speaking up at this critical time of global
emergency.
Directives can only achieve
their intended effects if they
are completely and correctly
transposed into Member States’ Assessing the transposition process
national legislation by the Based on input from local partners of Transparency
deadline set out in these International (TI) and the Whistleblowing
directives. International Network (WIN),4 complemented by
information from the EU Whistleblowing Meter and
online research, this report assesses the
EU Commission
transposition process of the Whistleblower
Protection Directive in all 27 EU member states, 14
months into the two-year timeframe.
The EU Commission monitors whether member
The report firstly assesses the status of the
states fully and correctly incorporate a directive into
transposition process. When did countries start the
their national law by the set deadline. It may take
work? What progress has been made? Will countries
legal action – known as an infringement procedure –
meet the 17 December 2021 deadline?
against an EU country that fails to comply with a
directive and refer the issue to the European Court Secondly, the report reviews the transparency and
of Justice, which, in certain cases, can impose inclusiveness of the transposition process in each
financial penalties. EU country. Was information about the process
5TRANSPARENCY INTERNATIONAL
publicly available? Have relevant stakeholders – Commission and whistleblowing experts to adopt
such as civil society organisations (CSOs), trade comprehensive and coherent legislation on
unions, business associations, academia, and whistleblower protection. The Czech Republic,
national and local public institutions – been Denmark and Sweden are to be commended for
meaningfully involved in the development of the proposing legislation with a broad scope, but still fall
new legislation? short of best practice regarding what whistleblowers
will be able to safely report. Estonia and especially
Finally, where draft bills or concrete proposals are
Latvia are leading the way in that regard by
available, this report evaluates whether, at first
deciding, so far, in favour of legislation covering a
glance, they comply with the Directive and whether
wide and coherent array of whistleblowing
they go beyond minimum standards to meet
situations. Serious debates on the issue of scope are
international best practice. In particular, do they
still taking place in other countries, such as
adopt a wider scope, in order to protect all
Germany and Finland. In the Netherlands, the draft
whistleblowers speaking up in the public interest?
bill curiously foresees parallel reporting procedures
for breaches of EU law and breaches of national law,
Key findings with different obligations for those handling them,
By mid-February 2021, two-thirds (18) of the 27
member states had not started or had made Key recommendations
minimal progress in the transposition process, and
With only ten months left until the deadline, all EU
it is uncertain whether any EU country will transpose
countries, and especially those which have made
the Directive by the December deadline.
minimal or no progress towards transposing the
This lack of urgency from EU member states is Whistleblower Directive, must intensify their efforts.
concerning. The corruption and other health and
However, this does not mean that countries should
public interest concerns exposed by the COVID-19
rush through with flawed legislation to meet the
pandemic, and the huge amounts of relief funds at
transposition deadline, just to avoid fines and other
stake, should spur countries into action.
repercussions.
Unfortunately, they seem to have done the
opposite. It is understandable that governments are The transposition process should be transparent
currently dedicating significant resources to dealing and include all key stakeholders. It is important that
with COVID-19. However, thinking that adequate public consultation, research and
implementing whistleblower protection legislation is sufficient thought are brought to the drafting
not a high priority in that context would be a process.
mistake. The purpose of whistleblower protection
This also means that member states should not just
legislation is to enhance the enforcement of laws
have a minimalistic (or verbatim) approach to the
and policies, thus preventing loss or harm and
transposition. They should seize the opportunity
preserving the rule of law. Critical times, such as
offered by the transposition process to go further
those we are living through today, only accentuate
than the minimum standards in the Directive and
that need.
adopt comprehensive national legislation that
In addition, in several countries, the levels of meets best practice and international standards.
transparency and inclusiveness of the transposition
Only then will whistleblower protection laws across
process are unsatisfactory. Without proper
the EU live up to the promise of the Directive and be
consultation with all relevant stakeholders, national
fit for purpose, enhancing the enforcement of both
legislation is unlikely to offer adequate protection to
EU and national law and policies by providing for
whistleblowers and improve the detection and
high-level protection of every single whistleblower
tackling of wrongdoing in practice.
speaking up in the public interest.
Finally, it is worrying that some countries are not
fully embracing the recommendation of the EU
6ARE EU GOVERNMENTS TAKING WHISTLEBLOWER PROTECTION SERIOUSLY?
STATUS OF THE
TRANSPOSITION PROCESS
Given the status of the process over halfway through the
timeframe in EU countries, it is unlikely that more than a handful
– if any – will succeed in transposing the Whistleblower Protection
Directive by the end of 2021.
Status of the transposition process in EU countries on 17 February 2021
7TRANSPARENCY INTERNATIONAL
According to the EU Commission, members states government and call for general elections to take
generally have “difficulty” in transposing directives place in March 2021 will likely significantly delay the
within the agreed deadline. The average process. Whether the laws adopted will meet the
transposition delay was almost one year in 2019. objectives of the Directive and effectively protect
The transposition of the Whistleblower Protection whistleblowers in those four countries also remains
Directive is no exception. open.
Although timeliness is important, it should not be to
Minimal or no progress the detriment of transparency and inclusiveness.
Countries that have not yet started transposition or
According to our information, one year and two
are lagging behind should get to work, but not rush
months into the two-year timeframe two-thirds
through the process.
(18) of the 27 member states had made minimal
or no progress toward transposing the
Whistleblower Protection Directive.5 Unless
significant efforts are invested this year, it is unlikely Assessing progress
that any of those countries will meet the
transposition deadline of 17 December 2021. To assess the status of the transposition process in
EU countries, we looked at the steps taken by
Some countries who have as yet made minimal or governments by 17 February 2021, exactly 10
no progress had initially taken some promising first months to the transposition deadline.
steps early in 2020 (e.g. Bulgaria set up a working
group in January 2020 and Greece in May 2020), but In the absence of any significant output – i.e. a
since then, progress seems to have slowed almost draft bill7 (or detailed proposal) circulated outside
to a stop. government, or formal consultation with relevant
stakeholders – a country is considered to have
made minimal or no progress.
Limited progress
If one significant output was realised – i.e. the
Five countries have made limited progress towards government has circulated a draft bill or organised
transposition: Ireland, Estonia, Spain and France, formal consultation with relevant stakeholders – a
with the launch of public consultations between country is considered to have made limited
June 2020 and early February 2021, and Denmark, progress.
which circulated a draft bill to some stakeholders
If two significant outputs were realised – i.e. the
outside government in December 2020.6
government has circulated a draft bill and
organised formal consultation with relevant
Moderate progress stakeholders, a country is considered to have
made moderate progress.
Three EU member states have made moderate
progress toward transposition (Latvia, the If three significant outputs were realised – i.e. the
Netherlands and Sweden), with public consultations government has introduced a bill into parliament,
on draft bills. after circulating a draft and organising formal
stakeholder consultation, a country is considered
to have made substantive progress.
Substantive progress
It should be noted that the criteria used to assess
One EU country has made substantive progress the status of the transposition process are the
towards transposition: the Czech Republic same whether or not the country already has
introduced a bill on whistleblower protection into dedicated whistleblower legislation. Revising
Parliament on 9 February 2021. existing legal and institutional frameworks
While it is reasonable to be cautiously optimistic requires as much, if not more effort, than setting
about the capacity of countries in the moderate and them up.
substantive progress categories to conclude their In addition, this assessment of progress only looks
legislative processes by the end of the year, many at which steps have been taken and is not a
factors could compromise this progress. For reflection on the quality of the process or its
example, due to parliamentary elections, the Czech outputs.
Republic has, in effect, only until September 2021 to
do so. And in the Netherlands, the recent fall of the
8ARE EU GOVERNMENTS TAKING WHISTLEBLOWER PROTECTION SERIOUSLY?
TABLE 1: STATUS OF THE TRANSPOSITION PROCESS PER EU COUNTRY ON 17 FEBRUARY 2021
Minimal or no Limited Moderate Substantive
progress progress progress progress
Austria Denmark8 Latvia Czech Republic
Belgium Estonia The Netherlands
Bulgaria France Sweden
Croatia Ireland
Cyprus Spain
Finland
Germany
Greece
Hungary
Italy
Lithuania
Luxembourg
Malta
Poland
Portugal
Romania9
Slovakia
Slovenia
9TRANSPARENCY INTERNATIONAL
TRANSPARENCY AND
INCLUSIVENESS
When those in power listen only to a few narrow interests, policy
decisions are likely to benefit the few over the many. By allowing
all groups affected to participate in the policy debate, decision-
makers gain access to different points of view and can better
assess where the public interest lies.10
The Whistleblower Protection Directive sets debate and will help achieve more effective
minimum standards that EU countries must achieve, solutions to protect whistleblowers and address
but it is up to each country to adopt national their reports. Some stakeholders, such as
legislation to meet them. This approach allows ombudspersons, financial regulators and CSOs,
governments to adapt and tailor the Directive to have already implemented reporting mechanisms.
their national legal systems and context. The two- Others have experience using such mechanisms or
year timeframe to fulfil the transposition gives them advising those who do, such as CSOs, trade unions
time to involve relevant national stakeholders in the or business and employer associations.
design of the legislation, such as whistleblowers,
Finally, wide consultation can be the first step in a
employee and business associations, CSOs,
public awareness campaign to promote
academia, public institutions, journalists’
whistleblowers as people acting for the common
associations, regulators and judges.
good and out of loyalty to their organisation or
Reforms developed through consultation with profession. This is particularly important in
relevant stakeholders inside and outside countries where the cultural perception of
government are more likely to be effective. whistleblowers is negative.12
Meaningful, wide stakeholder engagement will
ensure that the legislation takes into account the
challenges, needs and concerns of all those who will
be affected, building buy-in, trust and support.11 The UN Office on Drugs and Crime
This is especially true when it comes to and the Council of Europe
whistleblower protection laws, as many actors will
recommend consultation with the
play a role in implementing such laws. They include
companies and public institutions who will run following stakeholders:
internal reporting systems, national authorities who
will handle external reports, journalists who will • Relevant ministries, including justice and
facilitate public disclosure, trade unions and civil labour/employment, and ministries dealing
society who will assist workers, and courts which will with sensitive areas (e.g. customs, education,
adjudicate retaliation claims. If these actors are not health care and public procurement).
adequately consulted and do not have confidence in
how they are meant to fulfil their responsibilities, • Inspection and enforcement bodies (e.g. health
implementation of the law will be poor. and safety, and trading standards).
In addition, the exchange of experience and • Independent human and public rights bodies,
proposals from diverse stakeholders enriches public such as ombudspersons and commissioners
10ARE EU GOVERNMENTS TAKING WHISTLEBLOWER PROTECTION SERIOUSLY?
for information, privacy, data protection and
human rights.
TRANSPARENCY
• Ethics and integrity bodies, including civil Proactive disclosure is integral to the transparency
service commissioners at central and local that underpins good government.14
government levels
• Trade unions and staff associations. Information on the process
• CSOs, including human, community and Several countries have set up online pages
consumer rights groups, and legal and dedicated to the transposition process, where most
advocacy organisations (especially those of the information on the process, from relevant
advising and protecting whistleblowers and documents to milestones, can be accessed by
addressing corruption issues). anyone. This is a good practice that should be
• Professional bodies such as those for lawyers, adopted across the EU. Examples can be found in
auditors, engineers or doctors (including the Czech Republic, Finland, the Netherlands and
disciplinary or ethics committees). Sweden, albeit with varying levels of user-
friendliness.
• The judiciary and judicial bodies.
As these online pages are mainly directed to (and
• Law enforcement bodies, including police, understood by) a technical or expert audience,
prosecution and special prosecutors. some countries have used additional means of
• Public accountability bodies, such as national dissemination to make information accessible to a
and local audit authorities. wider range of stakeholders, such as web articles
and press releases to launch the process (e.g. in
• Sector regulators, including education, social Sweden), a public consultation (e.g. in Estonia,
care, health and safety, financial, anti- Latvia) or provide progress updates (e.g. in the
competition and fair-trade bodies. Czech Republic and Latvia). Some countries even
• Business organisations and private-sector wrote directly to key stakeholders to invite them to
associations.13 participate in a public consultation (e.g. Sweden).
This is best practice and should be commended.
Such openness stands in contrast with the opacity
Inclusiveness in the transposition process is encountered in several other countries. In Germany,
therefore key, but true inclusiveness cannot be where it appears the government has been working
achieved without transparency. This is because on the transposition since at least April 2020, the
meaningful participation relies on stakeholders only official information publicly available came in
being provided with detailed information about the an August 2020 response to an official request by a
proposed legislation. Member of Parliament. The only other available
information came from leaks relayed in the German
As the transposition process is at very different media. In Bulgaria, no information has been
stages across EU member states, it is not possible to published either, even though the transposition
compare levels of transparency and inclusiveness. In process started in January 2020. In Greece, the
ten countries (Belgium, Croatia, Cyprus, Hungary, administrative order setting up a working group was
Italy, Luxembourg, Malta, Poland, Portugal and published in May 2020, but no further information
Slovakia), these could not even be assessed, either has since been provided, not even to update the
because the transposition process had not or had group’s mandate after its October 2020 deadline
only just started, or because we did not have was apparently not met.
enough information to establish whether the
process had come to a virtual stop or was very Without a minimum of publicly available
opaque. However, some best practices deserve to information about the process, such as which
be highlighted, while some bad practices should be ministry or department is responsible for the
corrected. transposition, what steps are planned with what
schedule, and key documentation, it is very difficult
for interested parties – unless they have privileged
access – to participate meaningfully in the legislative
process and hold the government accountable.
11TRANSPARENCY INTERNATIONAL
Information on opinions received representative and trusted
democracy.
Policymakers should proactively disclose
information about which stakeholders provided
International Standards for Lobbying
input during the transposition process – whether
proactively or on invitation, whether during a Regulation
meeting or in response to a public consultation –
and about the content of that input. Supporting
documents, such as reports or position papers,
should also be published, to allow the general public
to see what arguments are being presented and Public participation in decision
enable other stakeholders with potentially different making
interests to organise and join the decision-making
process.15
1. Right to participate – There should be a
Written submissions from stakeholders answering generally recognised right for all groups and the
public consultations were published by the public at large to participate in public decision
government in Estonia, Ireland, Netherlands and making, extending in particular to legislative and
Sweden. policy matters, within all levels of governance.
In the Czech Republic, where, as per standard 2. Public consultation process – A legal framework
procedure, the government issued a targeted call should lay out in a law or a group of laws the
for written feedback on the draft bill to a varied means for public participation in the
standardised and closed list of stakeholders, the formulation, implementation, and evaluation of
comments received were collated in a publicly policies and laws, including timeframes and
available document which indicates whether each specific mechanisms to disseminate public
comment received was accepted or rejected, with an meeting information, attendance and participation
explanation. It is considered good practice for rules, instruments and tools to submit comments
policymakers to outline how the various views have and opinion on specific policies.
been taken into account, and why.16
3. Equal opportunity – There shall be an obligation
In most other countries, stakeholders’ inputs have on public authorities to provide an equal
not, to date, been publicly disclosed by opportunity for participation to various interest
governments. groups and the public at large.
4. Timely and effective contribution – The public
INCLUSIVENESS authorities should be obliged to provide an
adequate time period for consultation allowing
sufficient time for review of the preparatory
In order to be truly inclusive, the transposition
materials under discussion, and should strive to
process of the Whistleblower Protection Directive
promote effective participation at the appropriate
should meet international standards for public
stage, while decisions are still open.
participation in decision making in all EU countries.
5. Publication of results – The (written and verbal)
views of participants in the consultation process
Both pressure groups and the shall be made public, and the authorities should
public at large should enjoy an outline how the various views have been taken into
open and fair access to public account and why.
decision-making, allowing for a 6. Refusals of the right – The public authorities
diversity of input, better shall provide a written justification for any refusal
policies, and ultimately more of the right to participate, and those excluded shall
have options available to challenge and contest
that exclusion in a procedure that is expeditious
enough to provide for participation in case the
refusal is overturned.
12ARE EU GOVERNMENTS TAKING WHISTLEBLOWER PROTECTION SERIOUSLY?
From Access Info Europe, Open Knowledge, and Sweden. This is concerning, given that CSOs
Sunlight Foundation, Transparency International, have valuable expertise to share – including
International Standards for Lobbying Regulation – experience using existing reporting mechanisms or
Towards Greater Transparency, Integrity and supporting citizens to use them. Some CSOs, such
participation, 2015. as many TI chapters and WIN members, are
themselves operating reporting mechanisms. CSOs
also have experience drafting legislation. Their
involvement is essential to protect responsible
EU countries that have already involved
whistleblowing in the public interest.
stakeholders in their transposition process so far
have done so at varying stages in the process and Other under-represented stakeholders include
through different channels and mechanisms. trade unions (missing in Bulgaria and Greece),
journalists (missing in all four countries), academia
Multi-stakeholder working groups (missing in Bulgaria and Sweden) and business
(missing in Bulgaria). Such gaps must be
In Bulgaria, Finland, Greece, Spain and Sweden, compensated for via other means, such as a public
governments have launched their transposition consultation and multilateral or bilateral meetings.
process by establishing working groups that include
In addition, the functioning of these working groups
external stakeholders, to conduct impact studies
is not fully transparent and can even be opaque –
and draft legislative proposals.
for example, whether, when and how often they
Multi-stakeholder working groups allow hands-on meet, meeting agendas and minutes, how they
stakeholder and expert involvement from the make decisions, and who they consult. In Bulgaria,
inception of the process. As whistleblower for instance, no information about the working
protection is a highly technical issue which group was publicly disclosed, not even regarding its
governments often do not fully understand, it is official mandate and composition.
reasonable – or even essential – for them to rely on
expert input. However, a number of best practices Public consultation vs targeted
should be followed.
consultation
Eight EU countries have conducted public
consultations as part of the transposition process
Best practice for working groups (Estonia, France, Ireland, Latvia, the Netherlands,
Spain and Sweden by mid-February 2021 and
Balanced composition – Expert and advisory Romania since).
bodies should have a balanced composition,
Public consultations are generally considered best
representing a diversity of interests and views.
practice, as they are by definition open to all, and
Disclosure of interests – Advisory and expert therefore provide any interested party with equal
group members should be required to disclose opportunity for participation. However,
their interests and affiliations relevant to items governments should make an active effort to
under consideration, in advance of any work on promote these public consultations via various
the issue. communications channels, including traditional and
social media, to reach as many stakeholders as
Transparency – The parameters and functioning
possible.18 This was the case, for example, in Estonia
of expert groups, and policy documents they
and Latvia, where the responsible ministries issued
consider, should be made transparent.17
press releases.
As public consultations are not only open to interest
groups, but also to the public at large,
Unfortunately, none of the working groups set up by
whistleblowers themselves are able to submit
EU countries for the transposition of the
comments, which they have done in Ireland and the
Whistleblower Protection Directive include
Netherlands, for example.
representatives from all key stakeholders, and it is
often not clear how members were chosen. In the Czech Republic and Denmark, the
governments conducted formal but targeted
CSOs are particularly underrepresented, and are not
consultations, rather than public consultations.
part of the working groups in Finland, Greece, Spain
13TRANSPARENCY INTERNATIONAL
Although the lists of stakeholders consulted were transposition of the Whistleblower Protection
reasonably long and diverse, targeted consultations Directive, the timeframe for providing answers
always run the risk of “forgetting” relevant ranged from two weeks in Latvia to 15 weeks in
interested parties. Sweden (where the object of the consultation was
an 800-page report). Romania and Spain gave a time
Informal consultation period of less than three weeks (and Spain notified
CSOs over one week after the launch of the
While informal consultations can be helpful at a very consultation). The Czech Republic, Denmark, Estonia
early stage in the preparation of a draft bill – for and Ireland provided a timeframe of one month, the
example, to better understand the issue at hand Netherlands six weeks and France close to nine
and potential challenges – they create uncertainty as weeks. For reference, the European Commission has
to whether all stakeholders have had a chance to be a minimum 12-week window for its public
heard.19 Such an informal approach, often taking consultations.
the form of bilateral meetings (e.g. in Germany) or
In addition, for the transposition process to be truly
multilateral ones (e.g. in Denmark), should be
inclusive, policymakers must be ready to take
limited to this early stage and followed by a formal stakeholders’ views into account, and must
consultation process, to reduce the risk of undue
therefore invite their participation at an appropriate
influence by certain interested parties in private
stage, while decisions are still open. Otherwise,
meetings with policymakers.
consultations, whatever their type, become pro-
forma box ticking exercises.
“Prior” consultation vs consultation
In the Netherlands, in reaction to criticisms received
on a draft bill during the public consultation, an official from the
Ministry of Internal Affairs stated that amending the
In Ireland, France and Spain, stakeholders were draft bill, which was the object of the public
invited to answer a number of questions before the consultation, was “unfortunately impossible”, as the
drafting of the bill began, allowing these Directive needed to be transposed into national
governments to collect input that will inform the legislation within a year. If this were to be confirmed
drafting process from inception. by the next draft, this would represent an example
In the Czech Republic, Denmark, Latvia, the of poor practice. A recent report on the
Netherlands, Romania and Sweden, stakeholders consultation indicates that a t least one of the issues
were consulted on a draft bill. This allows raised by several stakeholders has been taken into
respondents to provide feedback on concrete account.
legislative text, although it does not necessarily give
them the full picture, as further regulations might be
needed to implement the law, depending on the
national context. In the case of Sweden, the draft bill
was accompanied by an 800-page report which
gives extensive explanatory information. In addition,
governments might be more reluctant to implement
significant changes at this advanced stage.
In Estonia, the government followed an “in-between”
solution, asking stakeholders to provide comments
on proposals or “intentions”, rather than a legal text.
This approach has the advantage of allowing more
in-depth contributions in response to concrete
proposals, while giving policymakers flexibility to
respond to the feedback received.
Timely and effective participation
Whatever the approach, stakeholders should have
sufficient time to review the documentation and
formulate their comments. For consultations on the
14ARE EU GOVERNMENTS TAKING WHISTLEBLOWER PROTECTION SERIOUSLY?
TOWARDS COMPREHENSIVE
WHISTLEBLOWER PROTECTION?
Whistleblower protection legislation needs to be comprehensive
and robust to offer effective protection in practice and fulfil its
ultimate purpose: to detect, prevent and address wrongdoing.
Whistleblower protection frameworks are complex comprehensive whistleblower protection legislation:
mechanisms with a delicate balance. If one element Austria, Bulgaria, the Czech Republic, Denmark,
is weak or missing, the entire framework will Estonia, Germany, Poland, Portugal and Romania.
collapse when put to the test.
It is essential that all EU countries’ national
legislation meets the minimum standards set by the
Directive.
Assessing whistleblowing legislation The bill issued by the Czech Republic and draft bills
issued by Denmark, Latvia, the Netherlands and
Transparency International has developed
Sweden appear to be, on paper, mostly in line with
a methodology to help lawmakers, CSOs and other
the Directive requirements. The legislative
stakeholders assess how national legislation stacks
“intention” issued in Estonia lacks sufficient details
up against the requirements of the EU Directive, as
to fully assess whether the government is on its way
well as against international best practices.
to meet all the Directive’s objectives.21
A two-step methodology, it can help member states
However, even if complying with the Directive will
properly transpose the Directive and then go further
improve whistleblower protection in many EU
to meet international standards. This tool allows
member states, it will not be sufficient to establish a
assessment of current national legislation, as well as
comprehensive and robust whistleblowing legal
draft laws and amendments throughout the
framework.
legislative process.
See Transparency International, Assessing
Whistleblowing Legislation: Methodology and MEETING BEST PRACTICE
Guidelines for Assessment against The EU Directive and
Best Practice, 2020 Countries need to go further than a minimal,
verbatim transposition of the Whistleblower
Protection Directive. As they have to engage in a
COMPLIANCE WITH THE DIRECTIVE legislative process to transpose the Directive, they
should take the opportunity to bring their national
legal framework on whistleblower protection into
It is unfortunately not uncommon for EU countries
line with international standards and best practice
to poorly transpose a directive. In 2019, the EU
as well.
Commission alerted member states that the
average conformity deficit (incorrectly transposed EU countries should not only uphold, but also
directives) has never been so high.20 Many of the reinforce, the undertakings in the Directive, to
bad performers are also countries currently without ensure that their national legislation provides robust
15TRANSPARENCY INTERNATIONAL
protection to all whistleblowers speaking up in the The scope of the Latvian draft bill should be
public interest. National policymakers should not highlighted as particularly comprehensive. The State
only focus on the articles of the Directive, but read Chancellery is taking the opportunity of
them alongside the extensive recitals that precede transposition to further extend the already broad
them, as these shed a light on the intention behind scope of current Latvian whistleblowing legislation.
the articles and set out the spirit of the Directive. It covers “any violation which is harmful to the
public interest” and, to ensure legal certainty,
Several weaknesses of the Directive can be
includes a long but non-exhaustive list of examples
explained by the limited competences of the EU.
of areas covered, including, but not limited to, those
Because the EU cannot legislate on matters outside
listed in the Directive.
its competence, it could not adopt a Whistleblower
Protection Directive with a comprehensive scope. In Estonia, the “intention” foresees that although
Hence, the scope of the Directive is limited and national security, official secrets, professional
fragmented, protecting only whistleblowers who secrecy of lawyers and doctors, and courtroom and
report breaches of EU law. Whistleblowers reporting judicial proceedings would be not covered by the
breaches of national law do not benefit from the new legislation, these sectors would be obliged to
protections and procedures offered by the Directive, create their own regulations on how whistleblower
unless national governments extend those reporting should work and how to protect those
protections and procedures to them. This is the who report. This is to be commended as going
Directive’s main limitation. beyond the Directive, towards best practice, as set
out in the Global Principles on National Security and
When the Commission presented its proposal for
the Right to Information (“Tshwane Principles”).
the Directive, it encouraged member states to adopt
comprehensive and consistent national rules on Unfortunately, not all EU member states are opting
whistleblower protection, beyond the areas covered for a coherent framework. The Netherlands, which
by the proposal. It has done so repeatedly since, on already has a whistleblower protection law, has
various occasions.22 decided to create a special reporting regime –
running parallel to the existing ones – for breaches
of EU laws in the areas covered by the Directive,
The Commission encourages with different procedures and obligations for those
Member States, when implementing them.
transposing the Directive, to The Czech bill and the draft bills issued by Sweden
extend its scope of application in June 2020 and Denmark in February 2021 have
to other areas, so as to ensure a wider scopes than the Directive, which is to be
comprehensive and coherent commended, but their scopes are still somewhat
fragmented and do not include all breaches of
framework at national level.
national law in the areas cited by the Directive.
European Commission23 The Czech bill goes further than the Directive by
covering criminal and administrative offences
generally, without consideration to whether they
constitute breaches of EU or national law. However,
Transparency International, the Whistleblowing violations that do not constitute criminal and
International Network and many other administrative offenses are only covered if
whistleblowing advocates who welcomed the breaching EU law in the areas cited by the Directive .
adoption of the Directive also warned policymakers Breaches of national civil law, for example, are not
that transposing the Directive without fixing this covered.
major loophole would severely weaken the
protection it is supposed to bring.24 The Danish draft bill goes further, covering the
scope of the Directive and “serious offences and
It is very encouraging to see that Latvia, it seems, other serious matters” outside the scope of the
Estonia have (so far) chosen a “horizontal” approach Directive. According to the comments attached to
by opting for a comprehensive and coherent the draft, these include not only criminal offences,
material scope, both integrating and going well but also serious or repeated violations of other
beyond the scope of the Directive in their draft bills legislation or administrative law principles, as well
and “intentions” report. as violations involving a risk of harm to human life
or health, for example.
16ARE EU GOVERNMENTS TAKING WHISTLEBLOWER PROTECTION SERIOUSLY?
The Swedish draft bill appears to have an even Even if they did, EU and national law can be so
broader scope, by covering breaches falling outside entangled that EU law experts themselves are
the scope of the Directive when the information sometimes hard pressed to know where EU law
reported on wrongdoing is of “public interest”. It finishes and national law starts.
includes information that does not reveal breaches
A whistleblower protection regime that only
of any law, but which is nevertheless such that it is
applies to breaches of EU law would place an
in the public interest that the information is
incredible burden on whistleblowers, who will
disclosed. 25
need to work out whether their case fits in that box
However, these “seriousness” and public interest to know whether they are protected, and which
thresholds in the Danish and Swedish draft bills do procedure to follow to benefit from protection.
not apply to breaches of EU law falling within the
A minimal transposition will also create additional
scope of the Directive, meaning breaches of “lesser
burdens for companies. The Directive has created
gravity” will only be covered if they are breaches of
a number of obligations for them, and companies
EU law in the areas listed in the Directive.
may already have others under the existing legal
They can also lead to legal uncertainty, as the framework. For each whistleblowing report
concepts of “seriousness” and “public interest” are received, they will have to determine whether it is
open to interpretation. This lack of certainty could about a breach of EU law in order to know their
be addressed by adding a long but indicative list of obligations in terms of follow-up and protection.
examples of violations covered, as has been done in This requires additional financial and human
Latvia.26 resources. The same applies to public entities and
authorities receiving whistleblower reports, which
Therefore, while the Dutch, Danish Swedish and, to
are often notoriously lacking in resources.
a lesser extent, the Czech bills are adopting or
maintaining broad material scopes, extending Unjustifiable inequalities
beyond the areas covered by the directive, they
A minimalistic transposition places EU interests
treat breaches of EU law and breaches of national
above national interests. The aim of the Directive is
law differently. These approaches fail to ensure a
to enhance the enforcement of EU law, as
coherent legal framework and will create confusion
whistleblowing is one of the most effective ways to
for potential whistleblowers and other stakeholders,
prevent and detect breaches of law. The failure to
and therefore fall short of best practice and do not
extend the Directive’s robust protection regime to
fully comply with recommendations from the EU
all whistleblowers amounts to suggesting that the
Commission and civil society experts.
enforcement of EU law and protection of EU funds
is more important than protecting national
interests.
The need for a wider material scope A minimalistic transposition would create
inequalities between workers reporting
that is comprehensive and coherent wrongdoing. In a country with currently almost no
legal whistleblower protection, an employee
A “minimal” transposition, limiting the material reporting a minor violation of EU law would be
scope of national legislation to that of the protected from retaliation, while another
Directive, creates complexity, potential inequalities employee of the same organisation reporting a
and legal uncertainty for all parties involved: similar violation of national law, or even a serious
workers, companies, public employers and the crime, could be lawfully dismissed. Such unequal
authorities that deal with whistleblower reports. treatment seems difficult to justify, and some
argue that this could be unconstitutional in some
Legal uncertainty and additional burdens for all
countries.
stakeholders
It is very difficult to assess whether a suspected
wrongdoing constitutes a breach of EU or national
law. Indeed, many whistleblowers do not know all
the facts when they report a suspicion of
wrongdoing. In addition, most people do not have
the expertise necessary to identify which article of
which law has been breached in a particular case.
17TRANSPARENCY INTERNATIONAL
Selected recommendations to close • protect internal reporting to any
responsible official.
the loopholes of the Directive
• require companies, public institutions and
National whistleblowing legislation should: national authorities to accept and follow up
• have a broader material scope covering all on anonymous reports.
breaches of law (whether national or EU • include penalties for failure to fulfil
law) and threats or harm to the public obligations under the Directive, including
interest. for failure to establish reporting
• not exclude matters relating to defence, mechanisms, follow-up on reports, or
security and classified information, but support and protect whistleblowers.
rather provide for specific reporting • extend protection measures to civil society
schemes. organisations assisting whistleblowers.
• define “reasonable ground to believe”. The • designate an independent whistleblowing
law should not require a whistleblower’s authority responsible for the oversight and
belief to be accurate. The test should be enforcement of whistleblowing legislation.
whether someone with equivalent
knowledge, education and experience (a
peer) could agree with such a belief.
• strengthen the protection of whistleblowers For comprehensive recommendations for
against retaliatory legal proceedings. No
the transposition, see Transparency
additional conditions should be required to
gain this protection. International 2019 position paper, Building
on the EU Directive on Whistleblower
• strengthen the reversal of the burden of
proof: the person who has taken a protection and 2018 Best Practice Guide
detrimental measure against a Whistleblowing for Legislation.
whistleblower should prove that it was not
linked in any way to their reporting or See also a series of policy briefings on key
public disclosure, and would therefore have
issues, “Implementing the EU Directive on
happened anyway.
Whistleblowing”, published by the
• ensure full reparation of damages suffered
Whistleblowing International Network and
by whistleblowers, including reinstatement
and full financial compensation (without found at www.whistleblowingnetwork.org.
caps).
18ARE EU GOVERNMENTS TAKING WHISTLEBLOWER PROTECTION SERIOUSLY?
COUNTRY SUMMARIES
The summaries for each EU country provide information on
progress in the transposition process and on its transparency
and inclusiveness. They also reference policy recommendations
from TI chapters and WIN local partners.
AUSTRIA
No comprehensive whistleblower protection
legislation.27 The EU Whistleblowing Meter was created by the
Whistleblowing International Network to track in
Status of the transposition real time the progress of transposition of the EU
Directive on Whistleblower Protection across all 27
process: minimal or no progress
member states. A collaboration with Transparency
The transposition process in Austria appears to be International EU and Eurocadres, the project has
significantly delayed. Little is known about it, recruited a team of voluntary country editors –
beyond the fact that the Ministry of Labour is advocates, lawyers, trade unionists, academics and
responsible for it. investigative journalists – to monitor national
developments and advocacy efforts relevant to the
Transparency and inclusiveness implementation of the Directive, to help determine
whether EU governments are living up to their
So far, the transposition process has been neither
obligations to protect whistleblowers. The meter
transparent nor, it seems, inclusive. No information
highlights whether countries are acting in good
has been published or proactively shared by the
Austrian government regarding the transposition faith and consulting widely and openly to develop
process. TI Austria had to contact the Federal comprehensive legal and institutional
Chancellery to find out which ministry was in charge whistleblower protection measures that reinforce
of the transposition. good governance, hold decision-makers to account
and allow for substantive civic engagement.
There is still reasonable expectation that the
process will be opened up. After TI Austria contacted
the Labour Ministry to share its position paper and The meter is available at:
inform officials of its willingness to support the https://euwhistleblowingmeter.polimeter.org/
process, the ministry responded that TI Austria
would be contacted at a later stage.
Policy recommendations
See TI Austria’s position paper on the transposition
of the Directive into Austrian law, from September
2020 (in German).
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