How the EU Can Help Protect Whistleblowers

(Bloomberg) -- The public may cheer a whistleblower, but it’s not easy to be one. While they expose fraud and abuse that otherwise would remain veiled, whistleblowers in Europe often face retaliation by their employers and other repercussions. A new proposed European Union directive seeks to change that; it might also prove useful in countering the erosion of democratic values in the bloc's east.

Currently less than half of European Union countries have legislation protecting whistleblowers. A patchwork of national laws, many of them weak, means that whistleblowers are often prosecuted at home for disclosing information that exposed corruption, wrongdoing or abuse of power while they are conferred with honors, such as the “European Citizen” award, at the EU level for defending transparency.

That is what happened to Antoine Deltour, who exposed secret tax schemes in Luxembourg where 340 companies worldwide had reduced their tax payments by cutting deals with the government in exchange for setting up shell offices. Despite an existing law in Luxembourg to protect whistleblowers, Deltour faced trial and received a suspended jail sentence, which was later rejected by the higher court.

The proposed directive, published last week, lays down common minimum standards for the protection of persons reporting on unlawful activities across policy areas, ranging from nuclear safety to the environment, food safety and data protection. It requires individuals to first report their findings internally — a significant risk in some countries and companies — but also offers clear avenues for reporting abuse externally. If adopted (it still has to be approved by the Council and the European Parliament), it would provide added protection for employees and encourage those who identify abuse to speak out.

There is another reason the new directive could be useful too. The European Union has run out of ideas for confronting the erosion of democratic values in Hungary, Poland and elsewhere in the region where cronyism has eroded the rule of law. While it has reluctantly begun so-called Article 7 procedures that could lead to sanctions against a member, a glacial pace and the requirement of unanimity means it’s highly unlikely the process will lead anywhere. Challenges to laws undermining democracy in these countries are also difficult to bring before the courts, even before problems enforcing court rulings. So a directive protecting individuals who call attention to abuse of power can encourage reporting bottom-up and is a more practical and achievable countermeasure than sanctions.

Protected disclosures could also invigorate public debates, feed EU legal action and pressure for change once government’s actions are exposed. Hungarian citizens, for example, who are directly affected by the increasing corruption level in the Fidesz-led government might feel emboldened to speak out about what they witness.

Of course, “might” is the operative word here. Concerns remain as to what the Commission or other EU institutions can actually do if retaliation — whether dismissal, harassment or fabricated charges — follows the individual who spoke up. The Commission has certain powers as the guardian of EU law — one of which is suing the noncompliant country. Yet this could take time and possibly still be ineffective. In fact, cases brought to the European Court of Human Rights (ECHR) show that states do not always comply with court judgments protecting whistleblowers, as was the case of Iacob Guja, who was dismissed in his job at the press department at the Moldovan prosecutor general’s office for disclosures about corruption made to a newspaper (he won his case before the ECHR).

The directive covers a wide range of policies, but can’t offer protection in areas where the EU lacks powers such as local enforcement. Which disclosures specifically fall within the new protections and which do not can be a challenge for potential whistleblowers to know, and may take an accumulation of case law to become clearer. Speaking to the media would be protected in cases of “imminent or clear danger to the public interest,” though it’s ultimately up to the courts to judge whether that bar has been met.

Even with these limitations, EU action is better than the status quo. It’s significant too that the three-year process to build the directive was driven by civil society organizations, including Transparency International, trade unions, academics (we had the opportunity to draft the first text of the directive in 2016) and members of European Parliament (in particular the Greens). Often accused of being too removed from citizens, Europe needs more such grass-roots collaborations to drive policy.

It’s a start. If Europe wants to rectify growing abuses to the rule of law, privacy rules and democracy in parts of the union, it will need to strengthen protections and legal redress as the directive seeks to do. But it must also be prepared to enforce them rigorously when the inevitable tests come.

To contact the authors of this story: Vigjilenca Abazi at v.abazi@maastrichtuniversity.nl, Alberto Alemanno at alemanno@hec.fr.

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