After a 20-year struggle of civil society organisations, political will is now changing within the European Union – albeit to differing degrees across the individual member states, like public opinion and legislation – towards a European directive that supports whistleblowers. Nicole-Marie Meyer reiterates the development of the right of citizen to disclosure or report wrongdoing (whistleblowing) from its origins to the present day.
According to the Greek historian Polybius, the freedom to tell the truth (parrhesia) is one of the pillars of democracy along with equality under and before the law (isonomia) and equal access to public speech (isêgoria) and consequently equal rights. The legislations which govern the right to “blow the whistle” (or whistleblowing) first arise within the spirit of the humanities (the principle of integrity) and in the laws implemented following the American and French Revolutions (the principle of accountability), and have continued for 50 years across the world and in Europe. They are designed to allow for the exercise of this freedom [to tell the truth] whilst developing a culture of responsibility in organizations as in society.
The history of whistleblowing
If the right of citizen to report wrongdoing is a principle first recognized during the 18th century then it should be substantively enshrined in legislation in the twentieth century. The first modern legislation (Civil Service Reform Act, USA, 1978) was the fruit of the work of Ralph Nader and a result of government deception (Pentagon Papers, Watergate) and the desire to protect the public officer who discloses crimes or offences or serious health, safety or environmental risks. The first International Convention (UN-ILO, 1982) in a similar way prohibits the dismissal of an employee where the employee has alerted others to illegal acts committed by their employer. Since then, more than sixty countries around the world have adopted comprehensive or sector-specific legislation in this area, following tragedies that have cost hundreds of lives, ruined parts of the economy and undermined the foundations of trust, crises that could have been avoided if the employees had not been afraid of losing their jobs by breaking their silence, or had been heard when they had the courage to speak up.
European framework needed
Today the economic, social or financial activities, health or public environmental issues, terrorism, organized crime, cybercrime, tax evasion, illicit financial transfers or pollution of the air or water do not stop at the border, much like the cloud caused by the Chernobyl nuclear reactor disaster. Whistleblowers, who disclose or report crimes or other such information on a threat or harm to the public interest, at the cost of their careers, if not their lives and those of their families, must therefore benefit from a protective European framework, if not an international framework. Following the recent Court of Cassation of Luxembourg (Luxleaks) judgement, Transparency International recalled the urgent need for a European directive to protect whistleblowers.
In the absence of a political vision and for cultural reasons, Europe has legislated belatedly on this matter, both at a national level and at Community-wide level (Council of Europe, 2010). As a result, it has uniquely benefited from 50 years of experimentation in this area in terms of success and failure of past legislation, including best practices, which have served to nurture the pioneering work of the Council of Europe (Recommendation of the Committee of Ministers to Member States, 2014; Resolution 2060, 2015) – the most advanced theoretical corpus in the world. At the end of 2014 the European Parliament joined the call for the protection of whistleblowers through their fight against corruption and, in particular in response to the Swissleaks, Luxleaks and Panama leaks, as they elected to adopt in 2017 the remarkable initiative based on the report of Virginie Rozière which outlined the basis for best international standards and required the European Commission to prepare a draft directive before the end of 2017. Finally, the European Commission, acting under pressure from civil society and Parliament, has been working on the feasibility of a directive since October 2016 (legal bases, subsidiarity), followed in 2017 by the publication of their roadmap and the subsequent report in October on the public consultation of citizens (5,707 replies, 99.4% positive responses) and the impact studies (report on the benefits of whistleblower protection in public procurement). Ultimately, Europe has four of the most advanced national legislative powers in the world (RU, 1998; Ireland and Serbia, 2014; France, 2016) including the established case law of the European Convention of Human Rights (ECHR), which determined in 2008 that there were six criteria that a whistleblower must fulfil to obtain legal protection.
Draft directive on the way
The European Commission is therefore in a position to present its draft directive thanks to the work of several directorates that have been actively involved in the process, which means that it is all the more necessary for the directive to progress alongside the directive on trade secrets and the RGDP (European Data Protection Regulation) (2016). The political will of the European institutions is genuine, but is somewhat varied across the member states, in the same way as public opinion and legislation differs from state to state. The political stumbling blocks are likely to be the definition itself (the concept of “threat or harm to the general interest”), the reporting procedure (tiered approach or free speak up), the good faith test and the criminal sanctions for those who perpetrate retaliation against whistleblowers.
In closing, Europe has developed a model of protection and sustainability over the last twenty years based on upstream prevention (the interim relief protection of employment) and the complete restoration of damage caused downstream, which differs from the North American, elitist model that is based on the whistleblower receiving a reward (representing a percentage of the total funds recovered). This directive will leave society with a choice to make