International Legislative Advocacy
See the EU Whistleblower Directive in the Official Journal of the European Union here..
Press Statements & Letters:
Government Accountability Project Press Release following historic approval of EU Directive
Whistleblowing International Network Letter to EU Ministers of Justice
Legal Director Tom Devine’s Assessment of the EU Directive
The following summaries of key issues proposed in the Directive have since been removed.
EU Whistleblower Directive, Poison Pill No. 1: New ‘lawful method’ prerequisite for protected speech
This added an additional requirement beyond reasonable belief to qualify for protection which would have be unprecedented in global whistleblower laws. Normally the issue is considered as part of an employer’s independent justification in the reverse burden of proof. This new structure would have meant that the whistleblower’s methods would be put on trial as the opening issue in every retaliation case. Whistleblowers would have to win that battle first, even to challenge retaliation.
EU Whistleblower Directive, Poison Pill No. 2: Liability shield loophole
This unprecedented new requirement, that the whistleblower must believe their disclosure is necessary, would mean it is not safe to have engaged in “protected” speech. The whistleblower also must properly guess whether his or her disclosure was indispensable, and then whether a court would agree. Otherwise, the whistleblower would be defenseless against criminal or civil prosecution.
It would have been unprecedented in global whistleblower law to impose a second test for protection against retaliation – the importance of the whistleblower. To date protected speech always and only has depended on the credibility and significance of the whistleblower’s disclosure.
EU Whistleblower Directive, Poison Pill No. 3: National security loophole
The EU Council proposed a ban on disclosures that threaten national security interests. In practice, this would have meant that intelligence agencies could ban any public freedom of expression. It would replace the public’s right to know with a government right to cover up. This open-ended national security loophole is unprecedented in whistleblower laws that protect public freedom of expression. No other whistleblower law permits those accused of misconduct the discretion to cancel protection for public disclosures in any context.