Strengthening whistleblower protection at EU level

In this opinion, the EESC considers that whisteblower protection apart from protecting whistleblowers, is an important tool to help companies to better address unlawful and unethical acts. It thinks that the directive's scope should be assessed on the basis of the evaluation of its implementation, and that it should be broad enough to safeguard the general interest. The Committee makes further recommendations:

• to review the legal basis for the directive so as to include workers' rights under Article 153 of the TFEU.
• to include former employees, trade union representatives and legal persons as defined in article 3 who should be able to report wrongdoing and benefit from the same protection.
• to put in place a two-stage reporting procedure initially giving the whistleblower access to internal channels or to the competent authorities (whichever is preferred); and subsequently, if necessary, to civil society/the media, in the interests of fairness and legal certainty.
• to include an explicit non-regression clause, in order to ensure that implementation of the directive in no way diminishes more favourable rights granted to whistleblowers prior to this directive in the Member States.

Key points

The EESC:

• considers that whisteblower protection, apart from protecting whistleblowers, is an important tool to help companies to better address unlawful and unethical acts;

• appreciates that some companies have introduced procedures aimed at protecting whistleblowers and that 10 out of 28 Member States have already in place comprehensive frameworks to cover whistleblower protection;
• considers that the directive's scope should be assessed on the basis of the evaluation of its implementation, and that it should be broad enough to safeguard the general interest;
• calls on the Commission to review the legal basis for the directive so as to include workers' rights under Article 153 of the Treaty on the Functioning of the EU;
• considers that former employees, trade union representatives and legal persons as defined in article 3 are able to report wrongdoing and benefit from the same protection; they must be clearly listed in Article 2 of the directive;
• recommends (Article 13) a two-stage reporting procedure initially giving the whistleblower access to internal channels or to the competent authorities (whichever is preferred); and subsequently, if necessary, to civil society/the media, in the interests of fairness and legal certainty;
• recommends that at any stage of the reporting process whistleblowers have access to trade union representatives, who should be empowered to represent them and to provide advice and support;
• considers that the directive should more clearly encourage the negotiation of internal reporting channels with trade union representatives, in the context of the social dialogue, as called for by the Council of Europe and the European Parliament;
• recommends that a whistleblower who initially acted anonymously and whose identity is subsequently revealed should benefit from the protection afforded by the directive;
• recommends that the text of Article 15(5) relating to the prima facie burden of proof be amended. It is sufficient that the whistleblower "provides evidence that he or she made a report";
• calls on the Commission to include an explicit non-regression clause in Article 19, in order to ensure that implementation of the directive in no way diminishes more favourable rights granted to whistleblowers prior to this directive in the Member States and in those areas to which the directive applies.