Whistleblower Protection in EU

The proposed European Parliament directive on whistleblower protection could make it more difficult for individuals to come forward with information about wrongdoing, according to a coalition of transparency and anti-corruption groups.

At issue is a provision that requires employees to report potential crimes and fraud internally before going to regulators and law enforcement.

A letter signed by a range of groups calls on the EU to protect the “free flow of information necessary for responsible exercises of institutional authority.” Disclosures to law enforcement and regulatory agencies provide a “safety net for protecting the public interest and the public’s right to know when organisations are corrupt or fail to take responsibility,” they write.

If this mandatory internal disclosure regime stands, the directive will have abandoned responsible Europeans who raise concerns appropriately to their employers through their supervisors or normal management channels of communication, who disclose information to competent authorities who have the power and mandate to address wrongdoing, or who provide information to the journalists who investigate and report in the public interest. They will suffer. Europe will suffer.

The letter also makes the following points:

• It allows law enforcement and regulatory bodies to do their jobs properly;
• It ensures employers take seriously their responsibility to make it safe and acceptable to report internally; and
• There is no evidence this undermines internal channels as the genuine first port of call for individuals
• It protects freedom of expression.

Among the groups signing the letter: Transparency International, European Federation of Journalists, and the National Whistleblower Center.

Stephen M. Kohn, a Washington-based lawyer who represents several European whistleblowers, also send a separate letter describing how U.S. law protects employees who report their concerns directly to the government. Kohn is the Executive Director of the National Whistleblower Center.

The proposed EU directive requiring whistleblowers to report internally “undermines the rule of law, violates international anti-corruption conventions, violates U.S. securities laws applicable to numerous European companies,” he writes.

In a letter addressed to European Parliament President Antonio Tajani, Kohn notes that “Similar requirements have been rejected in the United States, despite numerous attempts by corporate lobbyists to insert this requirement into various whistleblower laws.”

The proposed EU laws undermine whistleblower protections and “is inconsistent with the mandates under international anti-corruption conventions,” Kohn writes.

Requiring internal reporting is also inconsistent with laws prohibiting obstruction of justice.

“This obstruction of justice statute vindicates the “rule of law,” a pillar for all Democratic societies and a necessary precondition for the protection of human rights. Without the right of the people to freely report criminal activity to law enforcement, without any impediments or conditions, the rule of law is severely threatened, if not completely undermined, he writes.

The European Union must ensure that its whistleblower directive is consistent with international treaty obligations approved by all member states.

“Every nation in the European Union has approved three major anti-corruption. Conventions that implicitly or explicitly permit whistleblowers to directly communicate their concerns with government officials, without having to first notify the company,” Kohn writes.