What is the EU Whistleblower Directive?
In 2019, Directive (EU) 2019/1937 of the European Parliament and of the Council on the protection of persons who report breaches of Union law (the “Directive”) was introduced. Its noble aim was to provide a more uniform standard of whistleblowing protection across the European Union for those who report breaches of Union law. As such, EU member states were given until the end of 2021 to implement the Directive through their respective national laws.
Therefore, when it comes into force at the end of 2021, the whistleblowing protections in the Directive require all member states to adopt the standards in the Directive as a minimum. This should bring about, to some degree, more uniform levels of protection.
However, following implementation there is still the potential for mismatch between the protections provided by the Directive and those provided under national law. Thomas Cattee in Gherson’s White-Collar Crime department recently commented on this to Compliance Week in an article entitled “EU Whistleblowing Directive a “potential minefield” for compliance”, and now expands on his comments in this blog.
Not necessarily a general uniform minimum protection standard
The Directive only requires individual states to adopt the measures in the Directive as a minimum. Therefore where national laws already provide a greater level of protection than those set by the minimum standards proscribed under the Directive, there is still the potential for varying levels of protection. In addition, individual Member States are entitled to add more protections if they deem appropriate. Despite EU-wide implementation of the Directive standards, therefore, protections would still vary between states that already have additional protections available under national law and the states that choose to implement further protections beyond those in the Directive.
Room for discrepancies
Following implementation of the Directive there is additionally still the potential for discrepancies from country-to-country – primarily on the basis that the Directive provides flexibility in some areas of incorporation through national law. For example, the Directive still gives individual states a degree of choice in how to manage anonymous reporting. The levels of protection could therefore also depend on each Member States’ approach to areas where there is some room for flexibility.
Secondarily, the incorporation of the Directive can lead to differing protections being available due to a conflict between the circumstances in which protections are provided under the Directive, and protections provided under national law under the that nation’s specific whistle blowing protection rules. For example:
The National laws (and additional protections) may only be applicable to certain industries, or businesses of a certain size (therefore incorporation of the Directive won’t provide uniform addition protection in all circumstances);
National laws can provide additional protections for certain violations that are not covered by the Directive (again implementation of the Directive will not lead to uniform protection in all circumstances).
Conclusion
For the above reasons there will be plenty of issues for a compliance team to tackle, and expert advice should always be sought.
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The information in this blog is for general information purposes only and does not purport to be comprehensive or to provide legal advice. Whilst every effort is made to ensure the information and law is current as of the date of publication it should be stressed that, due to the passage of time, this does not necessarily reflect the present legal position. Gherson accepts no responsibility for loss which may arise from accessing or reliance on information contained in this blog. For formal advice on the current law please don’t hesitate to contact Gherson. Legal advice is only provided pursuant to a written agreement, identified as such, and signed by the client and by or on behalf of Gherson.
©Gherson 2021