Whistleblower protection


Why is whistleblower protection important and how is it possible to know more about the status quo?

There are two things every legislator should understand about corruption.

One is that corruption, in most cases, is the game of those in power. It is difficult to imagine corruption without the contribution of players who have the ability to abuse resources – mostly public resources – for the purpose of generating a private income or private asset; only people with some kind of power in their hands are able to act as such. This is obvious in the case of political corruption or corruption in public administration. However, it is true even outside the public sphere, within the field of private enterprises that corruption requires participants who have decision-making power over the employment, the dismissal, the salaries or the professional background of others; i.e. they have the power to influence the fate of other people.

Two is that – apart from the most extreme cases when it is the public authority that becomes so corruptive and at the same time authoritarian, that it does not have to fear either law enforcement and legislative authorities or the public – the very core of corruption is secrecy. In many cases corruption can only be revealed if someone breaks the silence.

For people with power, who became rich through corruption, security comes from having that power of influencing the fate of others. This kind of power is a severe threat to those who, for one reason or another, became aware of corruption, and who have to decide whether to turn to the authorities or the public, or remain silent. The most secure thing is if potential whistleblowers feel that their life can easily be ruined if they turn against the powerful.

For this reason, we cannot talk about a serious anti-corruption policy without the protection of whistleblowers. The level of the extent to which legal means and guarantees that serve to protect whistleblowers as well as the level of specially protected reporting channels are shockingly uneven when it comes to the different Member States of the European Union and there is no EU directive that would determine the common minimum requirements.

The reader can know more from a number of recent studies on what levels European countries are at the moment compared to each other or to other countries of the world. The study about the Member States, from 2013 by Transparency International can be found here: http://www.transparency.org/whatwedo/publication/whistleblowing_in_europe_legal_protections_for_whistleblowers_in_the_eu.

For the outlook and comparison of the G20 countries, the study of the Australian section of Transparency International from 2014, which was made in collaboration with two Australian universities and the Blueprint for Free Speech organization, can be found here: https://blueprintforfreespeech.net/wp-content/uploads/2014/09/Whistleblower-Protection-Laws-in-G20-Countries-Priorities-for-Action.pdf. One of the latest publications of this kind was published in the December of 2014 under the auspices of the Restarting the Future campaign and focuses on EU member states and compares practices of EU member states and several other non-EU countries: http://www.restartingthefuture.eu/assets/files/WhistleblowingReport_Restarting%20the%20Future.pdf.

Activity of the CRIM-committee in the previous term and unseen results

From March, 2012 to September, 2013 in the previous term, a special committee, namely Special Committee on Organized Crime, Corruption and Money Laundering (CRIM) was set up in the European Parliament, which besides the topic of organized crime dealt with the issue of whistleblower protection. The operation of the committee ended with the adoption of a final report, which asked the Commission to develop and issue a legislative proposal (directive) by the end of 2013 on creating a comprehensive European whistleblower protection program.

The report, which was also ratified by a resolution of the European Parliament, stated the followings:

[The European Parliament] Calls on the Commission, by the end of 2013, to submit a legislative proposal establishing an effective and comprehensive European whistleblower protection programme in the public and in the private sector to protect those who detect inefficient management and irregularities and report cases of national and cross-border corruption relating to EU financial interests and to protect witnesses, informers, and those who cooperate with the courts, and in particular witnesses testifying against mafia-type and other criminal organisations, with a view to resolving the difficult conditions under which they have to live (from risks of retaliation to the breakdown of family ties or from being uprooted from their home territory to social and professional exclusion); calls also on the Member States to put in place appropriate and effective protection for whistleblowers[.]

The text can be found here: http://www.europarl.europa.eu/sides/getDoc.do?pubRef=-//EP//TEXT+TA+P7-TA-2013-0444+0+DOC+XML+V0//EN

The Commission, however, refused to complete the request. The report of the EUobserver about the reaction of Cecilia Malström, representing the Commission, to the Parliament’s call can be found here: https://euobserver.com/justice/121873

As to what reasons the Commission had for not taking action can be found in the following documents:

The Commission Communication titled Fighting Corruption in the EU, which is one of the most comprehensive anti-corruption documents as of now, says the following:

“Effective protection of whistleblowers against retaliation is a key element of anti-corruption policies. The relevant legal framework in the EU is uneven, creating difficulties in handling cases with a cross-border dimension. The Commission will carry out an assessment of the protection of persons reporting financial crimes that will also cover protection of whistleblowers, and related data protection issues, as a basis for further action at EU level.” (Section 4.1.3. see here: http://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:52011DC0308&from=EN)

This means that the Commission decided to undertake the task of evaluating the institutions and tools for the protection of whistleblowers in each Member State with the conviction that this measure will answer all questions. We do not find any documents that actually fulfils that undertaking. There is, however, a Commission analysis on a similar topic, i.e. witness protection: eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:52007DC0693&from=EN

This is a Commission Working Document about the feasibility of a binding EU regulation on the field of witness protection. According to the Commission’s conclusion it is not feasible. They mark that the relevant scope of regulation primarily belongs to Member States, but that per se should not exclude the possibility of implementing an EU regulation where its necessity is justified. According to the Commission, however, the various regulations and institutions of Member States are so diverse and upon the Council of Europe’s initiation of similar kind, Member States were so reluctant, that there is no chance to adapt such a directive for now; the discussion should be re-launched in 4-5 years. (http://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:52007DC0693&from=EN)

The Commission believes that there is a lack of political will in Member States; therefore, it is futile to develop a directive, because even though the Parliament would adapt it, the Council of Europe would not.

In my opinion this is a situation, which we should not just accept. Even if the Commission is right when talking about the lack of political will in some countries, a directive proposal should still be issued, because it would force Member States to explain to their own people why they do not support the definition of minimum requirements for whistleblower protection across the EU.

The campaign by Restarting the Future

Similarly to Transparency International, it was Restarting the Future, primarily campaigning for whistleblower protection, to call upon newly elected MEPs at the beginning of this term to make efforts during their mandate in helping to strengthen whistleblower protection. The most important request of the organization from MEPs was to work for the development of a new EU directive on whistleblower protection. (The website of the campaign can be found here: http://www.restartingthefuture.eu/).

Similarly to the undertaking of TI on anti-corruption, I gave my name to this campaign as well. It is important to see, however, that the right to issue legislative measures belongs to the Commission. All the Parliament can do is to keep the question on the agenda and, of course, to call the Commission, in a Parliamentary resolution, to develop a plan for the directive. All of this can contribute to turning the public’s attention to the issue even in countries whose reluctance kept the Commission from making the proposal. The most important task for now, therefore, is to focus the campaign on waking the political will.

Referring to the signatures of Restarting the Future’s whistleblower protection campaign and of Transparency International’s Anti-corruption pledge, some of us MEPs initiated setting up an intergroup that would work, among others, towards this purpose. In the December of 2014, the European Parliament approved the creation of the Intergroup on Integrity, Transparency, Anti-Corruption and Organized Crime; the work can soon begin.

A conference co-hosted with Libera and Restarting the Future on the World Anti-corruption Day

On December 9, 2014, together with the Italian anti-maffia NGO, Libera, and campaign organization, Restarting the Future, we hosted a conference on the situation of whistleblower protection. As a co-host of the event I prepared the following opening speech:

Ladies and Gentleman,

Let me greet you with the warmest welcome, and with great respect for your interest in defending the public interest against corruption, and for the work you do for it in your respective fields, as scholars, activists, lawmakers or otherwise. This day, December the ninth, has been international anti-corruption day for more than a decade, since the United Nations Convention against Corruption has been passed in 2003. The Convention is the first legal instrument that is global, adopts a fairly comprehensive approach to corruption, and is binding to its parties at least in some of its provisions. Sadly, the protection of whistleblowers, the brave people who risk their jobs, careers, often the peaceful and normal operation of their personal lives, and sometimes their safety and possibly even their lives, to uncover corrupt deeds, usually of powerful people, is not among the Convention’s binding provisions. The Convention only suggests to its parties that they consider adopting provisions to protect whistleblowers in their respective national legal systems. Similar is the situation at the European level. There are EU policies, including binding legislation, on several aspects of corruption, but not on whistleblower protection. In October 2013, the last Parliament clearly expressed its intention to change this, in its resolution in which it adopted the final report of the CRIM Committee, and called on the Commission to draft a directive on the subject. The last Commission, however, declined. This is part of the reason we are here now.

Democracy is in crisis, at least in some of the EU member states. I, for one, come from country which is currently taking an authoritarian turn, partly because the decay has reached the moral foundations of democracy. Corruption contributed greatly to this situation. At the core of the democratic ideal there are ideas about equality, fairness, the accountability of power, and the rule of law. Corruption is not just a criminal activity causing material loss to the economy and to public revenues. Corruption, especially if it is widespread in the power-structure, hollows out these core ideals and undermines the credibility of democracy.

One of the first things to understand about corruption is that most of the time it is done by people of power. It doesn’t only apply to the cases of political corruption. Even at a normal workplace, it is usually people entrusted with responsibility, discretional power to make decisions, and often to oversee the work of others and decide about their promotion or demotion, who are in a position to get involved in corrupt dealings.

Another thing to understand is that corrupt dealings are done in secrecy. So corruption is not just a matter for law-enforcement, because in many cases it is invisible to law-enforcement authorities until somebody decides to break the secrecy. The secrecy is maintained by the powerful people involved in corruption in a great part by the potential threat they might mean to those who, in possession of inside information, would uncover their secrets. The ability of powerful people to crush the lives of those who might want to uncover their wrongdoings is at the heart of corruption. So whistleblower-protection is not just a policy area among many others related to corruption, it is a tool without which effective anti-corruption policy is impossible.

Yet, the legal provisions for whistleblower-protection are surprisingly scarce in many EU countries. Very few EU countries have a comprehensive legislation providing for safe and accessible procedures available for whistleblowers, and effective guaranties that would safeguard them against the retaliation and vengeance of those whose corrupt deeds they reported. About half of the member states have some partial legislation on the subject providing legal protection to employees who come forward to report wrongdoings they witness at their workplace. In some EU countries the legal protection of whistleblowers is next to none.

Whistleblowers speak out because they feel it is their moral obligation. They do so at great personal cost. As it is reflected in a collection of really heart-breaking stories of the lives of whistleblowers who followed their moral instincts and revealed the wrongdoings of their employers published in Guardian just about two weeks ago, even in countries like the UK, which is among the few EU countries where the legal framework for whistleblower protection can be regarded as well-developed, whistleblowing might have devastating consequences on both the professional careers and personal lives of those who undertake it. Whistleblowers are seldom given credit for what they have done for the public good. By blowing the whistle they usually unleash an enemy that is powerful and has every resources to use the law against them. They do so, because they care for what is right and what is wrong. It should be clear that the law and the society stands by their side.

If there was a progress in some member states in this respect, it was, to a large extent, because of the activism and endurance of NGOs that are active in this field. I am proud that I can be a partner in their work, and I hand over the floor to experts and representatives in the hope of a fruitful cooperation towards our shared objectives.



Source of the picture: http://bawayan.deviantart.com

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