Europe and “Whistleblowers” : still a bumpy road…

by Claire Perinaud (FREE Group trainee) The 9th and the 10th of April was organized in Paris by the University Paris X Nanterre la Défense in collaboration with the University Paris I Sorbonne a Conference on «  whistleblowers and fundamental rights »[1] which echoed a rising debate on the figure of  wistleblowers  after the numerous revelations of scandals and corruption which occurred last years, with some of them directly linked to EU institutions. In the following lines I will try to sketch a) the general framework then b) the main issues raised during the Conference

A) The general framework 

The term « whistle-blower » was created by Ralph Nader in 1970 in the context of the need to ensure the defense of citizens from lobbies. He defined « whistle blowing » as « an act of a man or woman who, believing that the public interest overrides the interest of the organization he serves, blows the whistle that the organization is in corrupt, illegal, fraudulent or harmful activity »[2]. The interest of scholars and lawyers to the figure of whistle-blowers in the United States dates back to the adoption by the Congress in 1863 of the False claims act which is deemed to be the first legislation related to the right of alert[3].
The system which developed afterwards is notably based on the idea that whistle-blowing is a strong mechanism to fight corruption and has to be encouraged by means of financial incentives[4]. If this mechanism is of utmost importance in the United States, protection of whistle blowers is only slowly introduced in Europe[5]
With numerous scandals related to systemic violations of human rights, the subject is progressively dealt with in the European Union (EU) and in the Council of Europe. Nevertheless, in both organizations, the protection of whistleblowers remain at the stage of project or only recommendations to the states.

The Council of Europe…

Within the framework of the Council of Europe, two instruments are directly related to the protection of whistleblowers. The Parliamentary Assembly adopted in 2010 the Resolution 1729 (2010) entitled « Protection of “whistle-blowers” » encompasses a number of recommendations to encourage member states to adopt a legislation in this field and ensure effective protection of whistleblowers. Last year, the Committee of Ministers adopted a Recommendation CM/Rec(2014)7 on 30 April 2014 related to this issue.  
Notably, a step further was achieved with the adoption of a definition of whistle-blowers as « any person who reports or discloses information on a threat or harm to the public interest in the context of their work-based relationship, whether it be in the public or private sector »[6].
The individuals may furthermore rely on the European Court of Human rights (ECHR), in order to sick for remedies if some member states failed to protect their right to freedom of speech or to fair trial. Indeed the ECHR expressly recognized that, in certain circumstances, “the signaling by a civil servant or an employee in the public sector of illegal conduct or wrongdoing in the workplace should, in certain circumstances, enjoy protection[7].

Nevertheless the protection offered to whistle-blowers may remain weak, especially in the field of intelligence gathering and defense because of the wide margin of appreciation affords to member states to justify limitations to human rights by national security requirements[8].

…the European Union ..

The European Union until now has neither compelled member states to adopt measures in this field.
The importance of whistle-blowing to fight fraud and corruption is nevertheless usually brought forward and has lead to different studies in order to assess best practices in this field[9]. Notably, the interest for whistle-blowing is progressively moving towards a more general approach due to affairs which point out the importance to disclose information in order to fight systemic violations of human rights, such as the right to private life frightened by mass surveillance programs[10].
However and despite a rising number of actors who become aware of the necessity to develop the protection of whistle-blowers, the EU still lacks legislation in this field.
In 2013, despite calls from members of the parliament, the European Commission refused to introduce EU-wide whistle-blower protection law[11]. The issue is only mentioned through directives which may infringe the right to freedom of speech such as the proposal for a directive on the protection of undisclosed know-how and business information (trade secrets) against their unlawful acquisition, (point 12) which states that « the protection of trade secrets should not extend to cases in which disclosure of a trade secret serves the public interest in so far as relevant misconduct or wrongdoing is revealed ». The assertion is recalled art 4) 2. B entitled Lawful acquisition, use and disclosure of trade secrets. However it remains a very broad saving clause whose impact may be questioned due to the absence of definition and precise details on the way it should be applied.
The issue of protecting whistle-blowers has been debated also by LIBE committee on 28 may 2015 under the theme of  “ the Democratic oversight of Intelligence services in the European Union”.

..in the EU Member States..

The unwillingness of EU to adopt a general approach towards the protection of whistle-blowers is not compensated by strong initiatives from member states.  Seen as an exception, the UK is said to have some of the strongest rules in the EU. A public interest disclosure act, passed in 1998, protects almost all private and public sector employees from retaliation.  
Nevertheless, a report of Transparency international published in 2013 pointed out that only 4 EU countries can be seen as having advanced whistleblower laws[12]. ..the EU Ombudsman and the EU institutions agencies and bodies …  The fight against corruption within the EU institutions is also a key issue for European Union. A Eurobarometer survey, published last February, showed that 70% of European citizens believed corruption exists within EU institutions.

Thus, the European Ombudsman, Emily O’Reilly, launched on 27 July 2014 an investigation into nine EU institutions, which have failed to put in place protective measures for staff members that report corruption or malpractice[13]. The results illustrate that whistle-blowers benefit from a very poor protection within the EU. The Ombudsman finds that only two institutions adopted rules, the European commission and the court of auditors[14].

B) The Conference on “whistle-blowers and fundamental rights”

The protection of whistle-blowers in Europe remains weak and the need to assess what could be the best practices in this field is still of importance.  The Conference organised in Paris was the occasion to make a general survey of the questions which still have to be solved and which should be assessed by EU actors in case of adoption of a legislation in this field. In that regard, a report of the debates which took place seems relevant. The report of those debates may participate to debates towards the question of What could be the protection ensured to whistle-blowers by the EU ? To answer this question, one should focus on the two main questions which are at the heart of the protection of whistle-blowers and illustrate the complexity of the notion: who are the whistle-blowers and What could be the more accurate legal regime applicable to whistle-blowing?

  1. Who are the whistle-blowers ?

In order to ensure their protection, one should primarily know who they are. The presentation and debates during the conference insist on the necessity to look at the content of information disclosed to define a whistle-blowers and to the goal followed by the person who disclosed information. Disclosing information of public interest Those last years, a tendency to disclose information through the worship of transparency may have frightened Institutions (public and private) which need to keep some information confidential. Interestingly the conference thus focused on the question: Is whistle-blowing synonymous of transparency?  A negative answer is given by legislation or decisions dealing with whistle-blowing which all insist on the fact that those who enjoy protection disclose information of public interest  where the interest of the public goes beyond the secret surrounding that information. Therefore whistle-blowing needs to be distinguished from strict transparency[15] and whistle-blowers are firstly to be defined in relation to the content of the information they disclose.
In that regard secret shouldn’t be strictly opposed to whistle-blowing. However on the basis of such an assumption, a question arises:  to what extent an information has to remain secret? What are the criteria to settle boundaries? Where national security requirements are brought forward, states enjoy a wide margin of appreciation, which may weaken efforts to protect whistle-blowers.
In that regard, the boundaries of national security justification has to be assessed in order to ensure that the justification may not be used in order to hide some information of public interest without possibility for whistle-blowers to enjoy protection[16].
At the request of the LIBE committee, a study of the European Parliament published in 2014, provided   a comparative analysis of the national legal regimes and practices governing the use of intelligence information as evidence in the United Kingdom, France, Germany, Spain, Italy, the Netherlands and Sweden[17] . The study highlighted that whistle-blowers rights are often compromised and too often jeopardized when national security arguments are invoked. It explains that « while some EUMS already have specific legal provisions to protect whistle-blowers, there are restrictions to these when classified information is involved ». For instance, « In Italy, a limited level of protection from any repercussions is afforded to whistle-blowers by Art 54-bis of Legislative Decree 165/2001, aimed at protecting those public officials that report (to their superiors or to judicial authorities) misconduct within their administration. However, such protection does not apply when disclosure of the information at stake constitutes a crime in itself, as is the case for state secrets or classified information ».
Therefore national security requirements may limit the scope of protection afforded to whistle-blowers by limiting the definition to those who do not infringe state secrets or classified information. Edward Swoden’s case illustrates this idea. The EP Study states  « He is portrayed either as a hero/whistle-blower or as a defector/traitor ». To deny claims for protecting him as a whistleblower, « his opponents argue that he has broken the law (leaking confidential information) and has put the security of his country at risk, as well as damaging US diplomatic relations with some of its allies (for example, Germany) ».
It is worth noting that the “national security” exception seems to be validated by the Council of Europe. Point II.5 of the Recommendation CM/Rec(2014)7, related to its personal scope, states that : « A special scheme or rules, including modified rights and obligations, may apply to information relating to national security, defence, intelligence, public order or international relations of the State ». Therefore, an EU framework for the protection of whistle-blowers in these cases related to national security could be helpful.
Beyond the problems linked to definition and delimitation of the content of information in order to identify a whistle-blowers, the conference gave the opportunity to distinguish whistle-blowers from those who may disclose information but cannot be considered as using their right of alert.

Disclosing information out of a professional obligation

In order to adequately protecting whistle-blowers, one should distinguish them from other actors who also disclose information but for other reasons than denouncing «mismanagement, corruption, illegality, or some other wrongdoing » of an institution, a government or a firm which they belong to and acting for the good of the organization they belong to. In the United states the whistle-blowers are often opposed to leakers, who disclose information by breaching laws applied to whistle-blowing.
In the US where the legislation applicable to whistle blowing is much more developed than in Europe, the respect for procedures established in order to disclose information is of utmost importance. Jean-Philippe FLOEGLE, who raised this issue during the conference, stressed the way it reduces the distinction to « exemplary employee »/ defector »[18] and maybe does not tackle the problem in its complexity. Furthermore the protection as « whistle-blowers »is not intended to promote transparency of firms, or even governments, but to fight against fraud and corruption.  

Finally, the debates pointed out that scholars and legislation dealing with whistle-blowing clearly distinguished journalists from whistle-blowers. Referring to another distinction such as between leakers v. whistle-blowers, Jean-Philippe FOEGLE suggested to  distinguish those who act for professional purpose, such as journalists, to whistle-blowers who disclose information for the good of the society or the organization they belong to.

From protecting to encouraging whistle-blowing ?

Furthermore the conference was the occasion of a survey regarding the adequate protection that should be afforded to whistle-blowers. In that respect a clear distinction may be done between two goals behind legislation adopted on whistle-blowing: protecting whistle-blowers and encouraging whistle-blowing. Protecting whistleblowers Surveys has shown that legislation applicable to whistle-blowers is firstly deemed to protect them from retaliation, by creating a ground to claim compensation and some avenues adequate. 
Therefore some questions may arise: Should whistleblowers enjoy anonymity while whistling the blower? Does a legislation provide reliable avenues in order for they claim to be taken into account? Indeed survey in this field has shown that whistle-blowing is linked to the belief that alert will be adequately taken into account[19]. This concern was brought at EU level by the study published at the request of the European Parliament which intended to recommend the way corruption and fraud within the EU institutions should be tackled ant the effectiveness of whistle-blowing in order to do so[20].
The study pointed out the need to create an independent body in order to deal with the claims. The question of anonymity ensured to whistle-blower has a mean of protection has been discussed especially after the adoption in the United States of the Sarbanes-Oxley Act which applies to subsidiaries of US companies in Europe.
The companies submitted to this legislation have to implement internal whistle blowing procedures, which included at least a “confidential anonymous” method. Furthermore, the protection ensured to those who disclosure of information related to intelligence gathering recently show its limits.
In that regard, recent examples has shown that the asylum law could be applied to whistle-blowers[21]. as it is currently the case for Julian Assange who cannot leave the Embassy of Equator in London because of the European Arrest Warrant launched by the Sweden.
Indeed, another  European parliament study published in 2013 on the need to ensure respect for fundamental rights in case of mass surveillance programs stated that «the systematic protection of whistle-blowers should include strong guarantees of immunity and asylum»[22].

Encouraging whistle-blowing

In addition to the protection of whistle-blowers from retaliation, new EU or national legislation in this field may follow also other goals. Indeed, a number of studies and examples, such as the legislation adopted in the US[23], have shown the effectiveness of whistle-blowing in order to fight fraud and corruption.
The future legislation should then provide for Incentives in this field [24]. According to the EP 2013 study whistle-blowers should be rewarded with  25% of fines levied as a result of their disclosure.
That having been said it is more than likely that new EU legislation encouraging whistle-blowing will probably make visible the current divergences between member states. For instance some EU countries may be reluctant to encourage whistle-blowing by means of financial incentives (such as France), while other member states will consider the option of establishing a rewarding system (Italy Slovakia). [25].

Conclusion

The Paris conference highlighted the main questions related to a legal regime applicable to whistleblowers. This general survey, which only presented some of them, stressed the complexity of the issue but also its implication for respect for human rights. Therefore, the European Union should engage itself in this field considering that «it aspires to lead the world in human rights, individual liberties and justice».

 NOTES

[1] A publication will be available in 2016. [2] R. NADER, Petkas and Blackwell, Whistleblowing (1972). [3] N. M. MEYER, Le droit d’alerte en perspective : 50 années de débats dans le monde, AJDA n°39/2014, 24 novembre 2014. [4] E. SANGREY CALLAHAN and T. MOREHEAD DWORKIN, Do Good and Get Rich: Financial Incentives for Whistleblowing and the False Claims Act, 37 Vill. L. Rev. 273 (1992); http://digitalcommons.law.villanova.edu/vlr/vol37/iss2/2 [5] Conclusions from Transparency international survey, Whistleblowing in Europe: legal protection for whistleblowers in the EU, 2013. [6] J.-P. FLOEGLE, Un renforcement en demi-teinte du statut de lanceur d’alerte dans « l’ Europe des droits de l’homme », La Revue des droits de l’homme [en ligne], Actualités Droits-Libertés, mis en ligne le 11 mars 2015, http://revdh.revues.org/1703. [7] ECHR, Guja v. Moldova, 12/02/2008, req. n°14277/04, §72: “civil servant, in the course of his work, may become aware of in-house information, including secret information, whose divulgation or publication corresponds to a strong public interest. The Court thus considers that the signalling by a civil servant or an employee in the public sector of illegal conduct or wrongdoing in the workplace should, in certain circumstances, enjoy protection. This may be called for where the employee or civil servant concerned is the only person, or part of a small category of persons, aware of what is happening at work and is thus best placed to act in the public interest by alerting the employer or the public at large”. [8] ECHR, Pasko c. Russie, 27/10/2009, n°69519/01, §87 ; J.-P. FLOEGE, « Un renforcement en demi-teinte du statut du lanceur d’alerte dans « L’Europe des droits de l’homme » », La Revue des droits de l’Homme [en ligne], Actualités Droits-libertés, mis en ligne le 11 mars 2015 ; http://revdh.revues.org/1703. [9] European Parliament study, Whistleblowing Rules: Best Practice;  Assessment and Revision of Rules Existing in EU Institution, 2006 ; European Parliament study, budgetary affairs, Corruption and conflict of interests in the European institutions : the effectiveness of whistleblowers, 2011. [10] EU Parliament Report, Mass Surveillance of Personal Data in EU Member States and their compatibility with EU law, 2013. [11] https://euobserver.com/justice/121873 [12] Transparency international, Whistleblowing in Europe : Legal protections for whistleblowers in the EU, 2013. [13] Euractiv, Ombudsman pushes for more protection for EU whistleblowers http://www.euractiv.com/sections/public-affairs/ombudsman-pushes-more-protection-eu-whistleblowers-303761 [14] http://www.neurope.eu/article/little-protection-eu-whistleblowers/ [15] J. MARCHAND, Docteure en droit public, Université Toulouse 1 Capitole IDETCOM, Entre transparence et secret, réflexion sur le périmètre d’un droit de l’homme à alerter. [16] ECHR, Pasko c. Russie, 27/10/2009, n°69519/01, §87. [17] Directorate general for internal policies, policy department C: citizen’s rights and constitutional affairs, National security and secret evidence in legislation before the courts; exploring the challenges, 2014. [18] J.-P. FOEGLE, doctorant contractuel (allocation régionale) en droit public à l’Université Paris Ouest Nanterre, CREDOF, « Fuiteur d’informations » ou « Lanceur d’alerte » ? Les enjeux juridiques majeurs d’une controverse lexicale anodine.   [19] W. Vandekerckhove, European whistleblower protection: tiers or tears?, In D. Lewis (ed) A Global Approach to Public Interest Disclosure, Cheltenham/Northampton MA, Edward Elgar, pp 15-35, 2010 : “Brown, and Wortley et al. (2008) also note that the most important factor in a workers’ decision whether or not to blow the whistle is the likeliness that a malpractice will be corrected”. [20] European Parliament study, Corruption and conflict of interests in the European institutions : the effectiveness of whistleblowers, 2011. [21] C.TEITGEN-COLLY, Professeure de droit public, Université Paris 1 – Panthéon-Sorbonne, vice-présidente de la CNCDH, Un droit d’asile des lanceurs d’alerte ? [22] European Parliament study, The US National Security Agency (NSA) surveillance programmes (PRISM) and Foreign Intelligence Surveillance Act (FISA) activities and their impact on EU citizens’ fundamental rights, 2013. [23] E. SANGRAY CALLAHAN and T. MOREHEAD DWORKIN, Do Good and Get Rich: Financial Incentives for Whistleblowing and the False Claims Act, 37 Vill. L. Rev. 273 (1992). Available at: http://digitalcommons.law.villanova.edu/vlr/vol37/iss2/2. [24] European Parliament study, The US National Security Agency (NSA) surveillance programmes (PRISM) and Foreign Intelligence Surveillance Act (FISA) activities and their impact on EU citizens’ fundamental rights, 2013. [25] Transparency international report, Whistleblowing in Europe: legal protection for whistleblowers in the EU, 2013.

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