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Does your national (draft) legislation on whistleblower protection comply with the EU Directive and meet best practice?

Here is a new tool to find out and help you reach those targets

Marie Terracol

Whistleblowing is one of the most effective ways of uncovering corruption and wrongdoing. Whistleblowers help reveal more corporate fraud than management reviews and audits together, making them invaluable at a time when companies are receiving millions of euros of tax-payer money to weather the COVID-19 crisis. In the EU, the losses due to a lack of whistleblower protection in public procurement were estimated at between EUR 5.8 and EUR 9.6 billion each year. And that is in a “normal” year. With governments’ spending going through the roof, from millions of euros to purchase health equipment during the emergency to billions of euros in recovery plans, it is urgent to ensure that workers who become aware of corruption schemes and mismanagement of those funds speak up.

However, many whistleblowers suffer from retaliation, ranging from dismissal to threats and even physical harm. Robust whistleblower protection legislation is vital for preventing this, but many whistleblower protection laws have weaknesses and fail to shield whistleblowers from retaliation and other injustices.

In Luxembourg, Antoine Deltour, the whistleblower who revealed aggressive tax avoidance schemes (the 'LuxLeaks' case), was prosecuted and had to go through four criminal trials before being (mostly) cleared. While the First Instance Court acknowledged that Antoine Deltour’s disclosures were in the public interest and led to greater tax transparency and tax justice, it did not consider him a whistleblower. Ultimately, the highest court in Luxembourg had to base its decision on article 10 of the European Convention on Human Rights (on freedom of expression). The other whistleblower in that case, Raphael Halet, was not recognised as such by the Luxembourg courts and his case is being examined by the European Court of Human Rights. This happened even though Luxembourg has some whistleblower protection legislation, because it has serious loopholes. It only covers disclosures about corruption, influence peddling and unlawful conflicts of interest, and even in those cases, it only protects whistleblowers against dismissal, not against prosecution.

This is one of the scandals that contributed to the passing of an EU Directive on Whistleblower Protection. Adopted last year, it aims to ensure that future whistleblowers aren’t harmed for exposing the truth, by providing high levels of protection and safe avenues for reporting wrongdoing to many potential whistleblowers and by requiring companies, public institutions and authorities who receive information on wrongdoing to actually follow up on them. The Directive is, however, not perfect. It gives a strong foundation for whistleblower protection, but it has loopholes and weaknesses.

What is more, EU Directives are not directly applicable in EU countries. They set out goals that EU countries must achieve, but it is up to each country to devise their own laws to reach these goals. Directives need to be “transposed” into national law. Many countries are failing to turn EU Directives into adequate laws, and incorrect transposition of the Whistleblower Protection Directive could further endanger whistleblowers and discourage them from speaking up. This would have dire consequences for people’s lives.

To help minimise that risk of a bad transposition, and even close the Directive’s loopholes in the process, Transparency International has developed a methodology and guidelines to assess whistleblowing legislation against both the provisions of the Directive and best practice. The methodology can be applied to existing legislation, and will help policymakers to identify where their current legal framework does not comply with the Directive or meet best practice and needs reform. It can also be applied to draft legislation, to ensure the new legislation fulfils the requirements.

The methodology is intended for those policymakers tasked by their governments to draft the legislation, to help them design a bill that reaches the required standards from the outset. It is also intended for members of parliament, to help them propose amendments to improve the bill once it is presented to them. Finally, it is intended for civil society organisations and any other actors interested in ensuring that their future national whistleblowing legislation is robust and comprehensive. Advocacy to achieve this needs to be supported by sound analysis to be effective and the methodology aims to empower whistleblower advocates to contribute to the legislative process every step of the way with insightful, constructive proposals.

The methodology adopts a modular approach, in two parts, allowing users to assesses whether legislation complies fully, partially or does not comply with the EU Directive (part A), and whether legislation can be considered strong, moderate or weak when compared to best practice (part B).

The core of the assessment is structured around a set of 25 indicators based on a mapping of existing international principles and standards on whistleblower protection legislation. The structure of the indicators largely mirrors the structure of the EU Directive. They are clustered under four dimensions:

  1. Scope, definitions and conditions for protection
  2. Reporting channels and procedures
  3. Protection measures
  4. Transparency and accountability measures

Once the assessment of each indicator is complete, the findings can be presented in visual form:

Once all the indicators have been assessed and the key areas of strength and weakness of the legislation have been identified, recommendations on how the legislation could be improved can be developed. The wording of the indicator criteria is a good starting point for the development of (alternative) legislative text, where this has been found to be missing or inadequate. This can be complemented by examining the wording presented in the EU Directive and Transparency International's Position Paper on the EU Directive, which provides recommendations to close loopholes and strengthen weaknesses in the Directive , as well as Transparency International’s 2018 Best Practice Guide for Whistleblowing Legislation, which provides examples of best practice from existing legislation around the world.

Access our methodology for assessing whistleblowing legislation.

Read about how our chapters have campaigned for strong whistleblower legislation and enforcement, and other ways that they’ve secured better protection for whistleblowers.

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