On 23 April 2018, the European Commission (the “Commission”) published draft whistleblower protection legislation designed to shield persons who report breaches of EU law which they observe in their work-related activities (“Proposal for a Directive on the Protection of Persons Reporting on Breaches of Union Law” – COM(2018) 218 final of 23 April 2018 – the “proposed Directive”). According to the Commission, such protection is needed because whistleblowers play a critical role in uncovering unlawful activities that damage the public interest.
The protection will be afforded for a wide range of EU law breaches in sectors as diverse as public procurement, financial services, public health (including pharmaceuticals and medical devices), food, transport and animal health; and activities as wide-ranging as competition law, environmental protection, consumer protection, data protection and privacy, money-laundering and terrorist financing, product safety and public procurement. This is the first time that EU law has addressed whistleblowing in such a comprehensive manner.
Many organisations will be subject to the new rules as these will apply to all firms with at least 50 employees or with an annual turnover or balance sheet of more than EUR 10 million. These firms will be required to create internal channels and procedures to handle whistleblowers’ reports. Importantly, the new rules will also apply to governmental entities such as states, regional administrations, municipalities with a population of more than 10,000 and other entities of public law. Whistleblowers may be employees, self-employed persons, shareholders, directors, volunteers, trainees or any person working under the supervision and direction of a contractor, subcontractor or supplier.
EU Member States will have to complement the internal reporting procedures with external reporting channels. In addition, reporting will have to result in follow-up and feedback and will require the back-up of a record-keeping obligation. There will also be elaborate rules to avoid retaliation against whistleblowers, as well as remedies if the anti-retaliation measures fail.
The proposed Directive will now be discussed by the European Parliament and representatives from EU Member States. If adopted as a Directive, the Member States will be obliged to adopt implementing legislation, the provisional deadline for which is May 2021. Currently, Belgian law provides for limited forms of protection for whistleblowers, primarily in the financial services sector (see VBB on Belgian Business Law, Volume 2017, No. 8, available at www.vbb.com). There are also provisions for protecting whistleblowers in the public sector, but only in respect of the Federal Administration and the Flemish Region.
The proposed Directive and additional information on the proposal can be found here: http://ec.europa.eu/newsroom/just/item-detail.cfm?item_id=620400.
By Peter L’Ecluse and Valérie Lefever
