WHISTLEBLOWING LAW IN 2021: A QUICK GUIDE - Legal risks and protections in Europe
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WHISTLEBLOWING
LAW IN 2021:
A QUICK GUIDE
Legal risks and
protections in Europe
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Whistleblowing law 2021
Acknowledgements
This report was conceived by Jack Hunter, Senior Communications Officer
of the European Environmental Bureau. It is based on national assessments
undertaken by litigation and regulatory lawyers co-ordinated by Grégoire
Paquet and Margaux Bia of DLA Piper.
The legal research work was done pro-bono thanks to the Thomson Reuters
Foundation, which works to advance media freedom, foster more inclusive
economies, and promote human rights.
We thank all the firms as well as individuals involved in this project for their
time and efforts.
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Whistleblowing law 2021
May 2021
Concept and lead author: Jack Hunter
Contributors: Francesca Cannata, Lara Elborno, Marta De
la Fuente, Marius Haak, Joaquin Hervada, Teresa Lopez-
Bachiller, Mario Maldonado, Martin Metz, Grégoire Paquet,
Fernanda Santoro
With thanks to: Grégoire Paquet, Margaux Bia, Adriano
Mancinelli and the Thomson Reuters Foundation.
Responsible editor: Jeremy Wates
Photo credits: fotografierende, Callum Wale, Jaime Casap,
Christian Wiediger, Jonathan Bean, Beasty, Christian Lue,
Anthony Delanoix
This report is the result of desk-based research and provides
a general overview of the law, which is not exhaustive. Our
researchers have endeavoured to access the most up-to-
date versions of legislation accessible online. Given these
limitations, this publication should not be construed as
direct legal advice to the reader and should not be used
as a substitute for professional direct advice. DLA Piper
UK LLP, Thomson Reuters Foundation and the European
Environmental Bureau (EEB) will accept no responsibility for
action taken or not taken on the basis of this report. The
contents of this report should not be taken to reflect the
views of DLA Piper UK LLP, Thomson Reuters Foundation,
or any others who supported the European Environmental
Bureau by contributing to the report.
The European Environmental Bureau (EEB) is Europe’s
largest network of environmental organisations.
Rue des deux Eglises 14-16, B-1000 Brussels, Belgium
+32 2 289 1090 | eeb@eeb.org | www.eeb.org
International non-profit association - Association internationale sans but
lucratif (AISBL)
EC register for interest representatives: ID number: 06798511314-27
BCE ID number: 0415.814.848
RPM Tribunal de l’entreprise francophone de Bruxelles
The EEB is supported by the LIFE Programme of the
European Union. This publication does not necessarily
reflect the views of donors.
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Whistleblowing law 2021
Contents
Foreword 5
Introduction 6
Whistleblower protections and sanctions by country
Belgium 7
England & Wales 11
France 14
Germany 18
Italy 21
Spain 24
European institutions 27
The EU Whistleblowers Directive
Analysis of the directive, its integration
into national law and comparable laws 28
Scope and Definitions 30
Conditions to enjoy protection 33
Reporting channels 33
Protection measures 36
Reference to relevant jurisprudence at the EU level 38
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Whistleblowing law 2021
Foreword
It has become a statement of the obvious that democratic political
orders have been shaken to their core in recent years. Regimes around
the world, led by a crop of populists, have ripped up the rulebooks
and their disdain for science-based policy is felt not least in terms of
environmental impacts.
Political institutions are ballast in this storm. Individuals can, and should,
call out and expose wrongdoing, internally or externally, and empower
corrective forces.
Over the course of history, ordinary people have, time and again, chosen
to speak out to hold powerful people, corporations, institutions or other
types of organisations to account for their wrongful actions. Many a time
they knowingly risked their careers, even lives, to act in line with their
moral compass and in the public interest. ‘Shooting the messenger’ is
an all-too-common tactic in the playbook of those whose misdeeds have
been outed.
Whistleblowing by definition is not about individual gain. When the
public interest is at stake, the whistleblower’s disclosure of a wrongdoing
serves a greater good, safeguarding the interests of the many.
Sadly, rattling the cage rarely results in an immediate acknowledgement
and addressing of the problem at hand, and individuals who choose to
expose wrongdoings show immense courage and staying power.
Whistleblowers’ ability to remain steadfast in following their moral
imperatives thus deserves our respect and support, for their moral
resilience is what makes these ordinary people truly extraordinary.
Officials or private employees are more likely to take the courageous
step of speaking out if they understand their legal protections and the
potential risks they face. We hope is that this report can contribute to
this understanding.
Jeremy Wates
Secretary General
Jeremy Wates has served as Secretary General of the European Environmental
Bureau (EEB), Europe’s largest network of environmental citizens’
organisations, since May 2011.
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Whistleblowing law 2021
Introduction
This report is a summary of legal protections meet with representatives of environmental
and risks faced by whistleblowers in Europe’s organisations contrasting starkly with their
largest economies. We aim to give officials willingness to meet regularly with business
and private employees the information they representatives.
need to judge whether they are in a position
to call out wrongdoing and how to protect It is crucial that citizens are better heard and
themselves from any reprisals. that their representatives in the environment,
consumer, labour, development and other
Summaries by country offer would-be non-profit organisations play a prominent role
whistleblowers a quick overview of legal in law-making. With the environment the pre-
protections where they live. More complete eminent issue of our lifetime, the European
information is available here. Though the law Green Deal, the EU budget and pandemic
of the land is a relatively fixed matter, the scale recovery plans deserve our special attention.
of the incoming EU Whistleblowing Directive,
which must be transposed into national law Regardless of who is in charge, however
by 17 December, means that it is already benign, there will always be a place for the
influencing decisions of senior judges even whistleblower. These are individuals that feel
in countries where it is not yet transposed so strong a sense of public duty that they
into law. This report therefore also offers an willingly risk their job and even their liberty to
analysis of this landmark directive and the expose wrongdoing.
direction of travel for national law.
This report seeks to inform those who
In summary, where legal protections exist, wish to expose confidential company or
they mostly shield those who blow the official documents in the public interest
whistle on corrupt or illegal behaviour, not because the public’s right to know outweighs
least criminal behaviour with environmental other concerns. It provides an up-to-date
impacts. Protections are less clearly defined summary of the legal protections afforded
when it comes to exposing poor or harmful but to whistleblowers, as well as expert opinion
lawful governmental policies. The situation is on how aggressive prosecutors have been
less clear still when it comes to EU institutions, to date and what the possible sanctions are.
whose staff are shielded only by a patchwork of The format is designed to offer a quick digest,
staff regulations that are often a pale imitation backed up by legal references to facilitate
of the whistleblower directive they may have any legal advice they may wish to take, and
helped create. longer supporting texts available separately.
We hope that by increasing understanding of
Of particular interest to the European the risks and protections, we can contribute
Environmental Bureau are the opaque forms to removing barriers to whistleblowing in the
of corporate lobbying and how they influence public interest.
policymaking. Europe’s corridors of power
have long welcomed powerful corporate
interests that do not operate in the public
interest, let alone for the environment that
supports all life on Earth. This favour is why
populists characterise national governments
and the EU in particular as a playground
for corporate lobbyists. They have a point,
one that successive Commission Presidents
have done little to dispel, their reluctance to
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Whistleblowing law 2021
Belgium
Introduction
Although numerous specific provisions Whistleblowing
regarding those who share privileged regulation
information in the public interest exist in
Belgium, the current legal framework has Despite the diffuse nature of Belgium’s legal
drawbacks. The federal nature of the Belgian framework, the most important legislative
state, territorial applicability and the fact that acts are:
legal norms concerning whistleblowers are
spread across a variety of sectors result in • The federal law of 15 September 2013 that
a diffuse legal framework which makes an establishes principles for the protection
understanding of which rules apply more of individuals who report “suspected
complicated. There is an absence of general violations of integrity” in the federal public
provisions for private sector employees. sector [2]. Violations of integrity means: the
performance or omission of an act by a
However, to the best of our knowledge, no member of staff constituting a breach of
criminal prosecution has ever been brought the laws, orders, circulars, internal rules
against whistleblowers nor have any civil suits and procedures applicable to authorities
been reported. The imminent transposition and members of their staff and which
into Belgian law of the EU ‘Whistleblower constitutes a threat to or infringement
Protection Directive’ (2019/1937) should of the general interest; the performance
clarify and increase whistleblower legal or omission of an act by a member of
protections further. staff that involves an unacceptable risk
to the life, health or safety of persons or
to the environment; the performance or
As regards officials and other servants of
omission of an act by a member of staff
the European Union working in Brussels,
that is manifestly indicative of a serious
their employment rights and obligations are
breach of professional obligations or of
governed by the EU Staff Regulations [1] and
the proper management of the authority;
not national laws. However, whatever Belgian
law results from the Whistleblower Protection • The Flemish decree of 7 July 1998
Directive will be available to them where they concerning the Flemish ombudsman
wish to report breaches that occur in a work- and the Flemish Civil Servant Statute
related context outside their employment of 13 January 2006, which includes the
relationship with the EU institutions, bodies, protection afforded to Flemish civil
offices or agencies. servants who report suspected violations
of integrity;
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Whistleblowing law 2021
• The Brussels region joint decree and requested. Whistleblowers are protected
ordinance concerning the Brussels against disciplinary sanctions, dismissal or
Ombudsman of 16 May 2019 with regard any other form of overt or hidden sanction,
to the report of suspected violations unless they are found to have acted in bad
of integrity in the Brussels regional faith, for personal benefit or have made a
public sector. Here, suspected violations false declaration.
of integrity are to be understood as
gross negligence, abuse or an offence, Brussels Capital Region employees who
constituting a threat or prejudicial to the suspect a fellow staff member of acting with
public interest, committed within the negligence, conducting unlawful activities or
Brussels regional public sector; abusing the law can benefit from a protection
and investigation regime, consisting of
• National laws focusing on disclosure and internal and external components, pursuant
adequate protection in relation to specific to Article 15 of the Brussels joint decree and
sectors, such as finance [3], audits [4] and ordinance of 16 May 2019. Similar to the
money laundering [5]; Flemish region, on request, they can be placed
under the protection of the Ombudsman.
• The protection of the right of freedom of
expression by Article 10 of the European
2. Private sector
Convention on Human Rights, Article 11
of the Charter of Fundamental Rights The current Belgian legal framework lacks
of the European Union, Article 19 of general provisions governing whistleblowers
the International Covenant on Civil and in the private sector. However, a number
Political Rights and Article 19 of the of principles have legal consequences. One
Belgian Constitution. the one hand, whistleblowers in the Belgian
private sector should keep in mind that
In addition, several federal laws and regional
employers and employees owe each other
decrees and ordonnances enshrine the right
‘awe and respect’ as a general principle and
of public access to information [6].
have a duty to refrain from committing or co-
operating in acts of unfair competition. On
1. Public sector
the other hand, employment laws provide
In the public sector, officials have the duty protection against workplace bullying or
to report crimes they discover in the course arbitrarily dismissal of employees, including
of their duties to the Crown Prosecutor on whistleblowers.
the basis of art. 29 of the Criminal Code.
Federal employees who witness suspected
violations of integrity can rely on the federal
Liability and judicial consequences of
whistleblower law to report the facts in a
whistleblowing
confidential procedure that protects them
from retaliation.
The Belgian criminal code does not explicitly
On the Flemish regional level, former and penalise whistleblowing or the disclosure of
current civil servants, contractual employees information. However, it does contain several
and apprentices who observe, for instance, provisions to prosecute individuals who
negligence, unlawful activities and abuse unlawfully disclose information outside of
of the law at work can raise a concern the scope of the report suspected violations
with both internal and external bodies, of integrity in the public interest. Examples
for instance line managers, heads of unit, include professional secrecy, embezzlement,
Flemish ombudsman, or directly to the theft, unauthorised access to IT systems,
internal audit of the Flemish administration abuse of trust, defamation and slander. Those
thanks to the Flemish decree of 7 July 1998. who respect the legally sanctioned forms
The whistleblower can be placed under the of whistleblowing but who nevertheless are
protection of the Flemish Ombudsman, if faced with criminal charges may wish to resort
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Whistleblowing law 2021
to grounds for justification and exemption committing of a criminal offence, such as
of criminal prosecution as well as mitigating theft, embezzlement or computer fraud for
circumstances. example, may fetch a custodial sentence of
between eight days and ten years and a fine
If a civil servant or private individual of up to €800,000.
illegally discloses information, they could
be held liable to pay financial damages In civil cases, defendants could be forced to
commensurate with that which their repay financial losses in full.
disclosure caused. When considering the
potential civil liability of a whistleblower,
the court will need to take into account and Interpretation and application by national
balance the individual’s right to freedom of courts
expression, which includes the right to pass
Almost no judgments are available regarding
on information. This right is enshrined by
the interpretation and application by
Article 10 of the European Convention on
national courts on the matter of the current
Human Rights, Article 11 of the Charter of
legislation governing whistleblowers or their
Fundamental Rights of the European Union,
respective criminal or civil liability. Although
Article 19 of the International Covenant on
several whistleblowers have challenged
Civil and Political Rights and Article 19 of the
administrative sanctions or decisions before
Belgian Constitution.
the Belgian administrative courts, these
Additionally, certain legislation expressly judgments did not clarify the interpretation
states that the disclosure of information and application of the specific Belgian legal
does not expose the whistleblower to civil framework on whistleblowers. To the best of
damages, such as article XI.332/5, 2° of the our knowledge, there have been no criminal
Belgian Code of Economic Law in the field or civil prosecutions of whistleblowers.
of intellectual property. This offers complete
protection to individuals disclosing such
information from civil liability. End notes
Regulation No 31 (EEC), 11 (EAEC), laying down
[1]
Penalties the Staff Regulations of Officials and the Conditions
of Employment of Other Servants of the European
Pursuant to the Federal law, Flemish Decree Economic Community and the European Atomic
and Brussels joint Decree regarding reports Energy Community (OJ P 045 14.6.1962, p. 1385).
made in the public sector, whistleblowers Law of 15 September 2013 on the reporting of
[2]
who made invalid or abusive reporting may a suspected breach of integrity within a federal
be subject to disciplinary proceedings in their administrative authority by a member of its staff.
respective institution.
Article 36/7/1 of the federal law of 22 February
[3]
Belgian law does not contain a particular 1998 establishing the statute of the National Bank
provision protecting whistleblowers, family of Belgium, which grants protection to any person
members or colleagues from harassment. or entity who reports infractions on the laws and
regulations governing the supervision of financial
However, where employers threaten
institutions; article 69bis and 69ter of the law of
whistleblowers, these threats are criminalised 2 August 2002 on the supervision of the financial
under criminal law if they can objectively be sector and financial services.
considered likely to instil a serious fear in a
reasonable person. In such cases, threats Articles 82-84 of the law of 7 December 2016 on
[4]
the organisation of the profession and the public
shall be punishable by imprisonment of
supervision of auditors.
between three months and two years and
a fine of between €400 and €2,400 as per Article 10 of federal law of 18 September 2017
[5]
Article 327 of the criminal code. concerning the prevention of money laundering
and terrorist financing and limitation of the use of
Disclosure of information leading to the cash.
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Whistleblowing law 2021
[6]
For “federal administrative authorities” the
law on public access to government information
of 11 April 1994 and the law on public access to
environmental information of 5 August 2006 is
applicable; In Flanders, the Administrative Decree
of 7 December 2018 is applicable to “Flemish
public authorities”; in Wallonia, the Environmental
Code, in particular the provisions with regard
to the public’s right of access to environmental
information is applicable; for the Brussels region
the Joint Decree and Ordinance of the Brussels-
Capital Region, the Joint Community Commission
and the French Community Commission of 16
May 2019 on public access to administration in
the “Brussels institutions” is applicable, as well
as the Order of the Government of the Brussels-
Capital Region of 10 November 1994 laying down
the arrangements for access to environmental
information.
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Whistleblowing law 2021England
& Wales
Introduction December
2021. They
Freedom of expression is a right upheld in might decide to
England and Wales by the Human Rights transpose the principles
Act 1998, which transposes Article 10 of laid down in the Directive to
the European Convention on Human Rights ensure legal clarity and continuity but will
(the right to freedom of expression and have no obligation to proceed to that.
information) into English law. That right is
There are a number of potential criminal and
generally well protected and, in particular,
civil consequences for making unauthorised
the right of journalists to protect the identity
disclosures, although criminal prosecutions
and confidentiality of their sources, including
are rare in practice. It should be noted
whistleblowers, is generally upheld. However,
that where a journalist’s right to protect
these rights and protections are qualified and
their source is upheld, the identity of the
in certain circumstances can be restricted by
whistleblower is likely to be protected and
public authorities to, for example, protect
kept confidential, with the result that civil or
national security and prevent public disorder.
criminal charges cannot be brought against
The concept of whistleblowing is established the whistleblower.
and protected in certain circumstances
under English law, including through the
Public Interest Disclosure Act 1998 (PIDA). Regulation of whistleblowing
PIDA affords employment law protection
to workers who disclose confidential Broadly speaking, PIDA 1998 permits
information to relevant authorities. whistleblowing in certain circumstances where
employees make ‘qualifying disclosures’. That
To this date, England and Wales have not is the disclosure of information which, in the
transposed the EU ‘Whistleblower Protection reasonable belief of the worker making the
Directive’ (2019/1937) into domestic law. With disclosure, is made in the public interest by
the UK leaving the EU on 31 December 2020 due proving one or more of the following:
to Brexit and according to the EU (Withdrawal)
Act, the country will not retain EU directives •That a criminal offence has been
themselves into domestic law, as opposed to committed, is being committed or is likely to
the legislation already implementing them be committed;
or rights and obligations under them, which
•That a person has failed, is failing or is likely
will be retained. Therefore, as England and
to fail to comply with any legal obligation to
Wales have not transposed the Directive to
which they are subject;
this date, they will not have to do so before 17
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Whistleblowing law 2021• That a miscarriage of justice has occurred, four most high-profile criminal laws
is occurring or is likely to occur; when considering disclosing confidential
documents:
• That the health or safety of any individual
has been, is being or is likely to be
a. The Official Secrets Act 1989 (OSA)
endangered;
states that it is an offence for a crown
• That the environment has been, is being or servant or government contractor to make
is likely to be damaged, or that information certain unauthorised disclosures which
tending to show any matter falling within may potentially damage any of the below
any one of the preceding paragraphs has categories of government work: security and
been, is being or is likely to be deliberately intelligence; defence; international relations;
concealed. crime and special investigation powers;
information resulting from authorised
PIDA does not in general apply to self- disclosures or entrusted in confidence;
employed professionals, voluntary workers information entrusted in confidence to or by
(including charity trustees) or to the other states or international organisations.
intelligence services. For past or present members of the security
PIDA offers employment law protection. and intelligence services, for whom PIDA
An employee can claim automatic unfair does not apply, any unauthorised disclosure
dismissal if their employment contract is relating to security and intelligence is an
terminated because they made a ‘qualifying offence.
disclosure’. It also provides whistleblowers b. The Data Protection Act 2018 states
protection in circumstances such as that it is an offence to disclose personal
redundancy, denial of promotion, facilities or data without the consent of the individual
training opportunities. concerned. This would be relevant where
The rights of an employee under PIDA leaked sensitive documentation contains
will need to be considered alongside an personal data, such as names, addresses or
employee’s confidentiality obligations to dates of birth.
his or her employer at contract and English c. The Misconduct in a public office states
common law. that it is a common law offence to make
Where a criminal offence is committed, PIDA unjustified disclosures that seriously
is less likely to be relevant. undermine public trust in a public servant.
d. The Theft Acts states that an individual
who provides a confidential government
Liability and judicial consequences of document to a journalist could in theory,
whistleblowing depending on the form and nature of the
document disclosed, be prosecuted under
1. Civil
the Theft Acts for the appropriation of
Whistleblowers could face civil proceedings property belonging to another.
in England and Wales for breach of contract,
such as an employment contract or
confidentiality agreement. The way in which
Penalties
such a claim would proceed and the ultimate
consequences for the whistleblower would 1. Civil
depend on the terms of contract in question If a claim for breach of contract against a
and the factual context. whistleblower is successful, the whistleblower
2. Criminal may be forced to pay an indemnity or
damages, or be subject to an injunction
Individuals should be aware of the following
restraining their behaviour in relation to the
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Whistleblowing law 2021documents in question, which might also
restrain future behaviour.
2. Criminal
a. Official Secrets Act 1989: prosecution is
rare, with no more than one case a year on
average. Defendants face a maximum two-
year custodial sentence and an unlimited
fine.
b. Data Protection Act 2018: defendants face
up to an unlimited fine, depending on the
type of conviction.
c. Misconduct in a public office: this
offence carries a maximum sentence of life
imprisonment.
d. Theft Acts: the potential maximum
custodial sentence in this case is seven years
imprisonment and an unlimited fine.
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Whistleblowing law 2021France
Introduction first-hand
knowledge of
The Sapin II Act (Act) protects whistleblowers it.
from criminal liability (Article 7), ensures
The EU Whistleblower Protection
the confidentiality of their identities (Article
Directive (2019/1937) is expected to expand
9), and prohibits and sanctions the taking
the scope of whistleblower protection in
of retaliatory measures against them
France even further, once it is transposed
via reintegration into the workplace in
into French law by December 2021. For
case of dismissal. It also defines civil and
example, while the Act limits protection to
criminal sanctions against employers acting
individuals, the Directive extends protections
vindictively (Articles 10, 11, 12, 13, 15 and
to trade unions or associations. Furthermore,
16). To benefit from protection under the
the Directive merely encourages rather than
Act, individuals must (i) satisfy the legal
requires internal reporting by employees as
definition of whistleblower (Article 6), divulge
a first step.
only the information necessary to make their
alert, and (iii) if they are public or private
employees report their concerns following
a graduated specified procedure (Article 8). Regulation of whistleblowing
At the moment, whistleblower protection
extends only to individual persons (whether Article 6 of the Act states:
employees or not) as opposed to legal
persons. “…a whistleblower is «(i) any individual who
The Act extended legal protections that reveals or reports, (ii) acting selflessly and in
were previously focused on the disclosure of good faith, (iii) a crime or a misdemeanor,
wrongdoing in a limited number of sectors to an offence, a serious and clear violation of
the reporting of: any crime, misdemeanour, an international commitment which has
offence, serious and clear violation of an been ratified or approved by France or of a
international commitment which has been unilateral act of an international organisation
ratified or approved by France or of a unilateral adopted on the basis of such commitment,
act of an international organisation adopted or a serious breach of a law or regulation,
on the basis of such commitment; a serious or a serious threat or serious harm to the
breach of a law or regulation; or a serious public interest, (iv) of which the individual has
threat or serious harm to the public interest, personally become aware» excluding «facts,
excluding national defence secrets, medical information or documents, in whatever
secrets and attorney-client privilege, so long form or on whatever medium, classified on
as the individual reporting the information has national security grounds or covered by
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Whistleblowing law 2021medical secrecy or legal privilege.» against protected whistleblowers and
guarantees the reversal to the status quo in
Several points are noteworthy. First, only case retaliatory measures are taken against
conduct that is selfless is protected by the them as well as opens the possibility for civil
Act. This condition implies that the report and in some cases criminal sanctions against
must be raised in defense of the general such retaliating individuals in Articles 10, 11,
interest and not for personal gain, especially 12, 13, 15 and 16.
financial interest. Further, only conduct that
Importantly, the Act has vested an independent
is carried out in good faith is protected.
administrative authority, the Défenseur des
According to French case law, an employee
Droits, with the responsibility of orienting
is considered to have acted in bad faith only
and advising whistleblowers confidentially.
when it is established that they knew their
In the three years since the enactment of
allegations were false and, therefore, abused
the Sapin II Act, it registered a total of 240
their freedom of expression. In other words,
alerts, 84 of which were registered in 2019.
innocently reporting allegations that turn out
A potential whistleblower can approach the
to be wrong is still protected where the above
Défenseur des Droits, in writing, at any stage
conditions are met.
of the process for assistance and advice. If
Also, to gain legal protection under the Act, a whistleblower is considering making their
private and public sector employees must alert publicly, either because they followed
follow a graduated reporting procedure Steps 1 and 2 of the graduated reporting
governing when and to whom a disclosure procedure and have not yet received a
can be made. An exception is made for cases response within the requisite amount of
of grave or imminent danger, or when there time or because the alert is necessary due
is risk of irreversible damage. to grave or imminent danger or in the case
of the risk of irreversible damage, they are
Under the graduated reporting procedure, advised to consult with the Défenseur des
reports must first made internally (the Act Droits in advance, due to the risks of going
requires entities with 50 or more employees public with such information. This can also
to set up the appropriate channels to receive be helpful in order to verify whether an
such a report), then to a regulatory body alternate legal framework may apply. Indeed,
(a judicial authority, the administrative whistleblower legislation enacted prior to the
authority or professional bodies) and only Act dealing with specific sectors (including
in case of failure to properly reply by the banking, insurance, and the environment)
latter within three months may an employee is still applicable and may offer additional
whistleblower make the information public. advantages, such as a simplified reporting
Escalation from the first to the second step procedure. Constitutional or human rights
is permitted only when the whistleblowing law could provide additional protection.
report is not properly addressed within a
reasonable period of time. The Act does One might potentially argue that unfair or
not define who should make these value harmful policy decisions constitute a “serious
judgements, which will vary case-by-case. threat or serious harm to the public interest”
Individuals, as opposed to employees, can disclosure of which could be protected under
report wrongdoing directly to the relevant the Act, especially if such policy decisions have
authorities. been adopted or are likely to be adopted.
Transparency International lists the following
The Act also protects the identity of as examples of things that could fall under the
whistleblowers, under Article 9. Anyone category of «serious threat or serious harm to
who discloses identifying information of a the public interest»: damage to public health,
protected whistleblower faces a maximum of public safety or the environment, serious
two years of imprisonment and up to €30,000 management error, concealment of evidence
in fines. The Act moreover prohibits and relating to protected reports.
sanctions the taking of retaliatory measures
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Whistleblowing law 2021Liability and judicial consequences of Penalties
whistleblowing
Individuals disclosing information without
complying with the Sapin II Act face criminal
It is important to keep in mind that the Act
or civil penalties. For example, disclosing
seeks to encourage whistleblowing and aims
a professional secret could fetch a prison
to protect whistleblowers. Under the Act, any
sentence of up to a year and a fine of up
person (e.g. an employer or representative of
to €15,000 (Article 226-13 of the French
an entity that may be subject to an alert, etc.)
Criminal Code). Slanderous denunciation
who hinders in any way the submission of
(«dénonciation calomnieuse»), i.e. reporting
an alert to the designated representative of
someone to the authorities on the basis of
the company or to the authorities can incur
information that one knows to be false even
criminal liability. Such obstruction may be
partially, is subject to a maximum of five years
punished with up to one year imprisonment
imprisonment and a fine of up to €45,000
and a fine of up to €15,000. Article 9 stipulates
(Article 226-10). The act of opening, deleting,
that disclosure of confidential information
delaying or diverting correspondence,
likely to identify a whistleblower may be
including electronic correspondence,
punishable by up to two years in prison and
addressed to third parties in bad faith is
a fine of up to €30,000. The Act also expressly
subject to a maximum prison term of one
prevents any retaliation from being taken
year and a fine of up to €45,000 (Article 226-
against protected whistleblowers such as
15), while theft, for example of confidential
dismissal from place of employment, having
documents, fetches a maximum prison
in a recent case led to reinstatement and
sentence of three years and a fine of up to
payment of back pay through an expedited
€45,000 (Article 311-1). The crime of “recel”,
judicial procedure [1]. A non-employee
in French, meaning the concealing, holding
whistleblower protected under the Act is also
or transmitting of material tied to a crime,
protected from retaliation such as retraction
fetches a maximum prison term of five years
of a right like enrollment in a daycare or any
and a fine of up to €375,000 (Article 321-1),
other public service. In some cases, retaliation
while for defamation, the maximum prison
can even be subject to criminal sanction.
term is five years and the maximum fine is
For example, an employer who abusively
€45,000 (Article 226-10).
initiates an action for defamation against an
employee whistleblower protected under the With respect to possible civil penalties, Article
Act may be subject to a fine of up to €30,000 1240 of the Civil Code may also apply. This
(Article 13). article requires the author of any harm to
another individual to repair that harm. In
As to the risks faced by whistleblowers
other words, this provision establishes a
themselves, the Sapin II Act expressly
general regime of civil responsibility outside
exempts protected whistleblowers from
of contractual cases for harms committed
criminal liability. However, disclosure of
against others. For example, a “false
military secrets, medical data and information
whistleblower” can incur civil liability for the
covered by the attorney-client privilege is not
damages caused to the employer by his or
covered. Also, if an alert is made in violation
her allegation. Such a whistleblower would
of the Act, for example by violating the
be shielded from civil liability, however, if
graduated reporting procedure in place for
acting in good faith.
employees, by exposing more information
than is necessary to treat the alert, or by
reporting inaccurate information, there may
be potential civil and/or criminal liability,
the specific penalties for which are outlined
below.
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Whistleblowing law 2021Interpretation and application by national End notes
courts
Conseil des Prud’hommes de Lyon, Formation
[1]
From the available case law applying the de référé, 17 avril 2019, M. X, n°1900087.
protections of the Sapin II Act, it is clear that
CA Lyon, 4ème chambre, 24 octobre 2019, n°
[2]
courts will require strict compliance with the
19/00554.
graduated reporting procedure applicable to
public and private employees under the Act TA de Châlons-en-Champagne, 13 février 2018,
[3]
in order for such individuals to benefit from jugement n° 1701162.
its protection. For example, a French Court
of Appeal considered that a public employee Conseil des Prud’hommes de Lyon, Formation
[4]
was not protected under the Act for leaking de référé, 17 avril 2019, M. X, n°1900087.
information that became public before
exhausting the required reporting procedure
under the Act [2]. Furthermore, an individual
will not be protected as a whistleblower
under the Act in case of leaking information
to the press where the authority in question
had taken the necessary measures to remedy
the situation within a reasonable amount of
time [3]. Interestingly, courts have considered
whistleblowers protected under the Act in
relation to reporting that took place before
the Act (i.e. have applied the protections of
the Act in a retroactive manner) [4].
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Whistleblowing law 2021Germany
Introduction
reporting
A comprehensive package of legislation to anomalies
protect whistleblowers is missing in Germany, in the general
but several sectoral regulations are in place workplace [4] and
that offer some protection. Public and private specifically the mining sector [5];
employees enjoy different levels of protection.
Criminal and private prosecution is rare. • The protection of the right of freedom of
However, labour law is rather frequently used expression and information under Art.
against whistleblowers. Major improvements 5 German “Grundgesetz” (“GG”, “Basic
to whistleblower protections are expected Law”) theoretically protects anybody,
to be in place by December 2021 thanks to under certain conditions.
the implementation of the EU ‘Whistleblower
Protection Directive’ 2019/1937. 1. Public sector
Civil servants have the right to blow the
Regulation of whistleblowing whistle, under certain strict conditions
defined in article 5 GG. They are generally
The most relevant legal protections in place required to use mandated reporting
today are: channels to raise concerns about official
orders or shortcomings, defects or injustices
• An EU Directive on the protection of in connection with their job. They can only go
trade secrets against their unlawful public after they have exhausted all internal
acquisition, use or disclosure ((EU) administrative means, if their concern is in
2016/943)) has been transposed by the public interest and not merely personal
the Geschäftsgeheimnis Gesetz (GG matters. Going public with claims of
- “Business Secrecy Act”) of 18 April corruption that break the German Criminal
2019. The Business Secrecy Act protects Code is also permitted [6], if law enforcement
business secrets and prohibits their is notified.
disclosure, but also specifies conditions
that allow disclosures (Section 3 para. 2 2. Private sector
and Section 5 Business Secrecy Act).
The Business Secrecy Act allows a disclosure
• National laws protect disclosures by of information if it aims to protect a legitimate
workers in banks [1], financial services interest [7], while labour law Section 612
[2]
and insurance companies [3], or when a Bürgerliches Gesetzbuch (“Civil Code”)
performing certain activities such as prevents discrimination against an employee
- 18 -
Whistleblowing law 2021because the employee exercises their rights. cannot be held criminally liable. In addition, a
Thus, if an employee has a right to disclose whistleblower might act on the grounds of an
information, they cannot be disadvantaged error concerning the legality of the disclosure
for this disclosure. In addition, the Working (See memo 8.5 of the German part of the
Conditions Act provides that in certain annex to this report). The whistleblower is
situations workers are permitted to disclose therefore acting without intent.
certain information to the authorities if
health and safety at work is not guaranteed. Beyond the Criminal Code, Section 23 of
However, labour courts often disadvantage the Business Secrecy Act defines a criminal
whistleblowers for violating their duty of offence with relevance for whistleblowers.
loyalty towards their employer and approve However, Section 5 Business Secrecy Act
dismissals. Moreover, in the private sector provides exemptions from criminal liability
the German Code of Corporate Governance if the disclosure is done for one of the
encourages publicly listed companies to create following purposes: the exercise of freedom
internal reporting channels for suspected of expression and information, including
breaches of the law within the company. respect for freedom and plurality of media
Anonymous whistleblowing in the finance (Section 5 no. 1); the detection of an unlawful
sector is protected2 if done through a channel act, professional or other misconduct where
specified in the Federal Institution for Financial its acquisition, use or disclosure is likely to
Services Supervision, the Bundesanstalt für protect the general public interest (Section
Finanzdienstleistungsaufsicht. The German 5 no. 2); or disclosure made by employees
Code of Corporate Governance encourages to the employees’ representative body with
publicly listed companies to create internal the purpose of enabling the latter to fulfil its
channels to report suspected lawbreaking legal responsibilities (Section 5 no. 3). With
within the company. regard to the burden of proof for criminal
conviction, case law has made it clear that
this requires the judge’s sufficient degree
of belief according to experience of life,
Liability and judicial consequences of precluding reasonable doubt, which are not
whistleblowing merely founded on theoretical possibilities.
Public servants may break the German From a civil law standpoint, while employees
Criminal Code if they aid disclosure or directly are generally obliged not to disclose their
disclose official, professional, scientific or employer’s business secrets, respecting the
industrial information that is considered obligation of professional secrecy or ‘duty
confidential. In addition, there are further of loyalty’, if the disclosure follows the legal
criminal laws under which anybody could method, whistleblowers should not suffer
break the German Criminal Code by disclosing any civil consequences. If such disclosure
sensible information. As for the incitement is not compliant, the activity could lead to
to disclose information, such activity is disciplinary measures up to dismissal or
criminalised under the general provisions of damage claims. Under the German Law of
the German Criminal Code. Civil Procedure (“ZPO”), a court is to decide,
at its discretion and conviction, and taking
However, according to the general law account of the entire content of the hearings
provisions, the disclosure of official and the results obtained by evidence being
information might fall under a list of taken, if any, whether an allegation as to fact
exemptions from criminal liability, such as is to be deemed true or untrue (section 286
‘necessity’ (Sections 34, 35 Criminal Code). ZPO).
Furthermore, cases might occur where the
whistleblower has a legal obligation to report
or disclose information (see Section 138
Criminal Code). In this case, the whistleblower
- 19 -
Whistleblowing law 2021Penalties End notes
Whistleblowers face a range of penalties, from Section 56 para. 4 f Nr. 9 Kreditwesengesetz
[1]
fines to imprisonment of up to five years. In (”Banking Act“).
exceptional cases, charges of treasonous
Section 4 d Finanzdienstleistungsgesetz
[2]
espionage or spying of state secrets may be
(”Financial Services Act“).
brought, crimes punishable by jail terms of
up to 10 years.
[3]
Section 23 para. 6 Versicherungsaufsichtsgesetz
(”Insurance Supervision Act”).
Under German law, there are no specific
Section 17 para. 2 Arbeitsschutzgesetz
[4]
sanctions to protect whistleblowers, their
(”Working Conditions Act”).
family or colleagues from harassment, such
as from an employer. However, should the Section 61 Änderungsverordnung zu
[5]
harassing behaviour constitute a criminal bergrechtlichen Vorschriften im Bereich der
offence, such as defamation Section 185 et Küstengewässer und des Festlandsockels
seqq of the Criminal Code may apply. („Regulation Amending the mining provisions
regarding the regulation of coastal waters and the
continental shelf“).
Section 67 para. 2 Federal Civil Servants Act and
[6]
Interpretation and application by national
Section 37 para. 2 Civil Servant Status Act. See in
courts
detail our memorandum under 5.2.2
After a thorough search, no criminal cases See memo 3.2 of the German part of the annex
[7]
were found in which a whistleblower has to this report.
been prosecuted. However, several civil
cases have tested whether termination of
employment contracts were justified or
not. The most important case in this regard
reached and set precedent in the European
Court of Human Rights. It was sparked when
geriatric nurse Brigitte Heinisch complained
internally about deficiencies in nursing care
and fraud against insurance companies,
then alerted a public prosecutor in 2005 and
2006. She was fired without notice. This was
upheld by a German labour court, but later
overturned by the European Court of Human
Rights. It ruled that whistleblowers who have
exercised their constitutional right to file
criminal charges in good faith cannot simply
be dismissed (European Court of Human
Rights, Judgement of 21 July 2011, Application
no. 28274/08).
- 20 -
Whistleblowing law 2021Italy
Introduction both
in the
Whistleblowers acting in the interest of private and
organisations, both private and public, are public sector;
relatively well protected in Italy. This is largely
thanks to the long and challenging creation of • National laws protecting
Law 179/2017, known as The Whistleblowing disclosure in the banking sector [1],
Law, adopted on 30 November 2017. financial intermediaries [2], insurance and
Aiming to encourage employees to uncover reinsurance companies [3] and across
illegal practices and fight corruption, the all sectors where disclosure relates to
law strengthens existing protections for anomalies in the workplace [4] or money
public employees and introduces, for the laundering [5].
first time, specific protections in the private
sector. It introduces several measures to Additionally, freedom of expression is
curb retaliation against whistleblowers, protected in general terms under Article
including measures to reintegrate dismissed 21 of the Italian Constitution; while the
employees. The anonymity of whistleblowers Workers Statute, Law no. 300/1970, protects
is now protected and once an allegation is employees’ right to freely express their
made, any subsequent disciplinary measures thoughts (Article 1) and stops an employer
or other negative consequences, direct or investigating political, religious or trade union
indirect, are invalid unless the employer can opinions of workers (Article 8).
demonstrate that they have nothing to do 1. Public sector
with the whistleblowing.
Public officials and persons in charge of
On the other hand, the Law sanctions public services must disclose in writing any
individuals who make false reports. In criminal offences they discover in the course
particular, those making complaints that of their duties. Failure to do so is punishable
are wilfully or negligently groundless are by a fine of up to €516 or up to a year in jail.
vulnerable to civil or criminal charges. Law no. 179/2017 states that whistleblowers
must report offences or other misconduct
to the person mandated by law to handle
Regulation of whistleblowing transparency and anti-corruption within
every public entity, or to the Italian National
The most relevant laws are:
Anti-Corruption Authority (ANAC), or to the
• Law no. 179/2017 protecting individuals Corte dei Conti (the Italian National Audit
who report offences or other misconduct, Office) or to the judicial authorities.
- 21 -
Whistleblowing law 20212. Private sector • In the interest of the integrity of the
organisation, whether public or private,
Private sector employees are not required and to prevent or combat misconduct.
to disclose wrongdoing they discover in the
course of their duties. But Law no. 179/2017 Protections are not afforded to those obliged
requires enterprises to establish channels to maintain the professional secrecy due
to report offences, violations of 231 Model to their consultancy agreement with the
compliance programmes and any other concerned individuals or organisations
misconduct. They must also establish
adequate protection for whistleblowers;
in particular, the Whistleblowing Law Liability and judicial consequences of
requires companies to prevent retaliatory whistleblowing
or discriminatory actions against the
whistleblower for reasons related, directly or Whistleblowers could face criminal or civil
indirectly, to his or her reporting of allegations, charges if they wilfully or negligently make
as well as to provide, in the disciplinary groundless complaints. This most likely results
system, specific sanctions against any person in charges of criminal slander or defamation.
who violates such protective measures, and On the other hand, whistleblowers are not
against those who intentionally or negligently liable if they make, in good faith, an incorrect
make false reports. By setting up these claim based on their knowledge and following
provisions, companies gain legal grounds the legally prescribed methods for reporting
to avoid liability for criminal acts of their wrongdoing.
employees.
If disclosures trigger criminal proceedings,
3. Common principles defendants can argue that the disclosed
information is not secret, professional,
In both sectors, whistleblowers are protected industrial or official. Or they can argue that the
against dismissal, demotion, retaliatory disclosure was made with ‘just cause’ (giusta
measures and, in some cases, also against causa), or, for instance, with the consent of
criminal liability. Indeed, the disclosure of the individual / legal entity identified in the
official, professional, scientific or industrial disclosure.
secrets, which are generally punishable
offenses under Articles 326, 622 and 623 of From a civil law standpoint, employees
the Italian Criminal Code, are allowed if made must generally respect business secrets and
in compliance with the specific and relevant maintain an obligation of professional secrecy
whistleblowing provisions described above. or “duty of loyalty”, as defined in Article 2105
Non-officials are not obliged to inform the of the Italian Civil Code. However, a valid
authorities of a potential misconduct. disclosure could protect whistleblowers
from civil consequences. Invalid disclosures
Criminal offences arising from the could lead to disciplinary measures including
unsanctioned disclosure of official, dismissal.
professional, scientific or industrial secrets
are not punished if the disclosure is made:
• In compliance with the specific Penalties
whistleblowing provisions previously
The Whistleblowing Law does not protect
mentioned, for, respectively, the public
public or private sector individuals who
and private sectors;
knowingly make false claims. Private entities
• Properly and in a good faith, using are entitled to apply 231 Model disciplinary
the appropriate reporting channels sanctions against those making false claims,
adopted by the organisation, or, in the up to and including sacking the individual.
public sector, externally to prescribed
At the same time, the law sanctions those who
regulators;
- 22 -
Whistleblowing law 2021persecute whistleblowers. Specifically, in the [3]
Legislative Decree no. 209/2005.
public sector, ANAC may levy administrative [4]
Legislative Decree no. 81/2008.
fines of between €5,000 and 30,000 for
retaliation, depending on the seriousness of
[5]
Legislative Decree no. 90/2017.
the act [6] against whistleblowers, including [6]
Article 54bis of Legislative Decree no.165/2001
harassment. Sanctions from €10,000 to as amended by Article 1 of Law no. 179/2017.
50,000 exist for public administrations that
Italian Criminal Supreme Court, section VI,
[7]
fail to set up whistleblowing procedures 31/01/2018, No. 9041; Italian Criminal Supreme
compliant with the law or that do not Court, section. VI, 31/01/2018, No. 9047.
correctly follow up whistleblowing reports.
Italian Criminal Supreme Court, section V,
[8]
In the private sector, to avoid corporate
21/05/2018, No. 35792.
criminal liability, companies should define
in their disciplinary systems, part of the
Model 231, specific penalties against those
who persecute whistleblowers, such as by
disclosing their identity or worsening their
working conditions. This includes suspending
or firing the persecutor.
Italian law does not provide for specific
sanctions to protect whistleblowers, their
family or colleagues from harassment.
However, criminal offences are punishable,
as set out in the Italian Criminal Code.
Interpretation and application by national
courts
Very few judgments exist in relation to Law
no. 179/2017. However, the Italian Criminal
Supreme Court [7] has ruled that the identity
of the authors of anonymous reporting
can be revealed, if necessary and even
when they used channels afforded by the
Whistleblowing Law, during a trial so long
as: (i) the whistleblower’s disclosure is the
only evidence of the alleged misconduct and
(ii) their identity is essential to the defence
of the accused. In addition, the Italian
Criminal Supreme Court clarified that
employees cannot carry out any kind of illicit
investigation activities in order to disclose
the relevant information. More specifically,
the court confirmed that if a criminal offence
was committed (i.e. cybercrime) to obtain the
disclosed information, criminal liability may
arise [8].
End notes
[1]
Legislative Decree no. 385/1993.
[2]
Legislative Decree no. 58/1998.
- 23 -
Whistleblowing law 2021Spain
Introduction • L a w
19/1994
Spain lacks a culture of whistleblowing. But in of 23 December
recent years, political parties have recognised on the protection of
the value [1] of calling out wrongdoing and the witnesses and experts in criminal
practice is being promoted to both public and cases.
private employees. Most large businesses
and foreign companies established in Spain Regional (autonomical) laws that provide
have created whistleblowing policies of whistleblowing protection expressly:
varying quality, perhaps because it allows
• The protection of the right of freedom
them to distance themselves from liability
of expression under Article 20 of the
if employees break the law. Profound legal
Spanish Constitution;
change is coming thanks to the incoming
EU Directive 2019/1937. But much of the In Spain, on the national level, the main law
directive is still to be transposed into Spanish that specifically references whistleblowing in
law. So today, Spain still lacks broad legal the private or public sectors is Law 10/2010
protections for whistleblowers or mandated of 28 April on the Prevention of Money
reporting procedures. That said, the Supreme Laundering. Article 26 establishes that
Court has begun protecting the anonymity of natural and legal entities, those subject to the
whistleblowers in cases of criminal conduct law with special obligations, must establish a
and the court made a momentous decision procedure for their employees, managers or
on 6 February 2020 that may prove to be agents to communicate, even anonymously,
a turning point in the defence of Spanish relevant information on possible breaches of
whistleblowers. this law.
Freedom of expression (Article 20 of the
Spanish Constitution) is a fundamental
Regulation of whistleblowing
but not an absolute right insofar it may be
Laws offering some whistleblower protection subject to limitations. Therefore, in Spain, the
include: disclosure of personal or corporate secrets,
as well as acts of libel, may count as criminal
• Law 10/2010 of 28 April on the Prevention acts [2]. Also, infringing personal honour or
of Money Laundering;
privacy may be treated as a civil offence [3].
• Law 3/2018 of 5 December on of Personal
Official secrets are defined as “acts,
Data Protection and guarantee of digital
documents, information, data and objects
rights (Article 24.3);
whose knowledge by unauthorised persons
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