Commission's proposal for a Directive on the protection of persons - - PowerPoint PPT Presentation

Commission's proposal for a Directive on the protection of persons reporting on breaches

• f EU law

European Commission DG JUSTICE

Proposal for a Directive on the protection of persons reporting on breaches of Union law

Background:

• wide-scale scandals (Dieselgate, LuxLeaks, Cambridge Analytica)
• uneven whistle-blower protection accross Member States
• sectorial whistle-blower protection at EU level
• strong call for action at EU level from the EP and the Council, and

from stakeholders => 23 April 2018: Proposal for a Directive on the protection of persons reporting

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breaches

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Union law (accompanied by a Communication to support implementation by national authorities)

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Twofold objective:

• to strengthen the enforcement of EU law, and
• to protect freedom of expression and freedom of

the media

State of play of the file at the Council

• The Austrian Presidency’s stated objective is to reach a

"general approach" (i.e. political agreement and mandate to negotiate with the EP by the end of the year).

• The Working Party (FREMP) is now proceeding with

the third reading of the text

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State od play at the European Parliament:

• - JURI Committee report voted on 20 November
• EP plenary vote (mandate for negotiations): planned

for the 12th December 2018

The Commission

• supports the co-legislators with a view to

adoption by the end of the legislature

Proposed Directive: material scope (1)

The directive applies to reports on: a) breaches or abuses of EU law in the following areas: (i) public procurement; (ii) financial services, prevention

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money laundering and terrorist financing; (iii) product safety; (iv) transport safety; (v) protection of the environment; (vi) nuclear safety; (vii) food and feed safety, animal health and welfare; (viii) public health; (ix) consumer protection; (x) protection of privacy and personal data, and security of network and information systems; 7

Proposed Directive: material scope (2)

The directive applies to reports on: b) breaches relating to EU competition rules; c) breaches harming the EU’s financial interests; and d) in view of their negative impact on the proper functioning of the internal market, breaches of corporate tax rules or arrangements whose purpose is to obtain a tax advantage that defeats the object or purpose of the applicable corporate tax law.

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Proposed directive: personal scope

Reporting persons in the private or public sector Who acquired information on breaches in a work-related context including, at least, the following:

• workers (incl. in non-standard employment relationships);
• self-employed service providers, including freelance, contractors,

sub-contractors and suppliers;

• shareholders

and members

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the management body

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a company

• volunteers and unpaid trainees;
• persons

working under the supervision and direction

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contractors, subcontractors and suppliers;

• job applicants.

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Minimum standards of protection: main elements (1)

• Obligation to set up, in the public and the private sector, internal

and external reporting channels, ensuring confidentiality;

• Clear

and easily accessible information

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procedures for reporting, protection and remedies available, and access to advice, free of charge;

• Obligation of those receiving the reports to diligently follow up

and give feedback to the whistleblower within reasonable timeframe (not more than 3 months if internal reporting, up to 6 months max, if external reporting);

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Minimum standards of protection: main elements (2)

• Prohibition

and punishment

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retaliation, in all its various forms;

• Adequate remedies in case of retaliation, including reversal of

burden of proof and interim relief;

• Member

States may introduce

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retain more favourable provisions.

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Entities obliged to set up reporting channels and procedures

Internal reporting In the private sector:

• as a general rule only medium and large-sized companies (plus small

and micro companies operating in the area of financial services, or vulnerable to money laundering or terrorist financing). In the public sector:

• entities governed by public law (except municipalities with less than

10 000 inhabitants). External reporting Member States shall designate the authorities competent to receive and handle reports

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Conditions for protection (1)

Whistleblowers should have reasonable grounds to believe that the information reported is true at the time of reporting and falls within the scope of the Directive.

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Conditions for protection (2)

Tiered use of reporting channels:  whistleblowers are generally required to use internal channels first,  if these channels do not work

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could not reasonably be expected to work, they may report to the competent authorities,  if a) no appropriate action was taken following the use of internal/external reporting channels or b) if channels could not be used due to: i) imminent or manifest danger for the public interest, or ii) to the particular circumstances of the case, or iii) where there is a risk of irreversible damage, they may disclose to the public/media.

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Safeguards for reported persons and for the credibility of the system

• Persons

concerned by the reports fully enjoy the presumption

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innocence, the right to an effective remedy and to a fair trial, and the rights of defence.

• Member States shall provide for proportionate sanctions

to dissuade malicious or abusive reports

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Documents can be found at:

• https://ec.europa.eu/info/aid-development-

cooperation-fundamental-rights/your-rights- eu/whistleblowers-protection_en

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