In 2019, the European Union passed a landmark piece of legislation called the Whistleblower Protection Directive, which aims to ensure high levels of safety for people who report violations of law within EU jurisdiction that harm the interests of the community. The countries of the European Union had until December 17, 2021 to comply with the enactment of this legislation internally as national statutes, i.e., the transposition of the European directive into national law in each member state. There have been some delays in this process, however, by now all member states have promoted this transposition into their national laws. Regarding the dates of adoption of the national law in each member state, several were, with more or less delays advancing and at this moment only 3 EU countries have delayed the adoption of the whistleblowing domestic laws (Slovakia, Estonia, Poland).
What is the directive and what is its purpose?
The directive is a legal instrument that sets general standards to protect whistleblowers across the EU. The aim is to expose and prevent lawbreaking and improve law enforcement through the establishment of effective, reliable and secure reporting channels, protecting whistleblowers from retaliation. The Directive recognizes the crucial role of whistleblowers in identifying and preventing violations of Union law that may harm health, safety, the environment, consumers, taxpayers, competition, and democracy.
What are the main points and requirements of the directive?
The directive defines a three-level model: internal, external, and public.
- The internal level refers to internal communication procedures and channels in public or private bodies with more than fifty employees or an annual income of more than 10 million euros. The standard for this purpose incorporates internal channels, external reporting mechanisms managed by the relevant authorities, while supporting citizens who report directly without fear of retaliation through unified public reporting channels. Organizations have an important role in ensuring that individuals who wish to report concerns or suspicions can do so in a secure and confidential manner without any fear of retaliation. In addition, it is crucial that these entities maintain clear and timely communication regarding the actions taken following a report.
- The external level includes the reporting procedures and channels that should be made available by the competent authorities of the Member States to receive and handle reports about breaches of Union law in the areas covered by the Directive. These authorities should ensure effective communication with whistleblowers, impartial investigation of reports and effective cooperation among themselves and with Union institutions, bodies, offices and agencies.
- The public level refers to the ability of whistleblowers to make their reports public through the media or other public platforms if they do not get an adequate response internally or externally, or where there are clear or imminent risks to the public interest. Whistleblowers using this level are protected from retaliation under the directive, provided they have acted diligently and in good faith.
In addition, the directive sets out a number of measures to protect whistleblowers against reprisals, such as:
- Prohibition of any kind of retaliation against whistleblowers, such as dismissal, suspension, transfer, harassment, discrimination or persecution.
- The reversal of the burden of proof in cases of judicial or employment litigation related to reprisals: the accused entity can prove that it did not act in reprisal.
- Accessible and free legal assistance to whistleblowers facing administrative or judicial proceedings related to their reports.
- Reimbursement for the damages that whistleblowers have suffered as a result of the reprisals, which include material, moral and psychological damages.
- Education about the rights and obligations of whistleblowers and the entities covered by the directive.
How can whistleblower software help companies comply with the directive?
Whistleblower software is a technological tool that enables companies to establish safe and effective reporting channels to meet the guidelines, inherent in the whistleblowing directive, and thus position themselves in compliance with it. Some of the benefits of whistleblowing software are as follows:
- Allows whistleblowers to report their reports anonymously or identified through various means such as phone, email, online form or mobile application (where among these means it sometimes becomes difficult or even impossible to meet all legal security requirements in order to actually make reports received through these means a real protection for whistleblowers).
- Keeps the data of whistleblowers and reports private and secure through appropriate technical and organizational measures, such as encryption, authentication and access control.
- Facilitates feedback and dialogue between whistleblowers and the entities responsible for handling reports, which enables an efficient and transparent investigation process, as well as compliance with the legal deadlines inherent to the various stages of handling each report received.
- It registers and documents all actions and communications related to the reports, producing reports and statistics that enable the analysis and continuous improvement of the reports system.
- Facilitates the exchange of relevant information on whistleblowing, helping companies meet their legal obligations to report and cooperate with the relevant authorities.
- It encourages employees to report violations of Union law and strengthens trust in whistleblowing channels, creating a culture of ethics and transparency in companies.
The European Whistleblowers Directive is an important step towards ensuring a uniformly high level of protection for people who report violations of Union law affecting the public interest. Companies must be prepared to meet the requirements of the directive and protect whistleblowers against possible reprisals. Whistleblower software can help companies in this process by offering a reliable, effective and customized solution.
Published at: 20/06/2023