FOR IMMEDIATE RELEASE
March 12, 2019
European Union Reaches Agreement on Historic Whistleblower Directive
STRASBOURG — Shortly after midnight, negotiators from the European Commission, European Parliament, and European Union (EU) Council reached agreement on a landmark paradigm breakthrough creating free speech protections for whistleblowers, employees who challenge illegality or abuses of power that betray the public trust. Over the next few months, the agreement must be formally approved by all three institutions to become an official EU Directive that is legally binding for all 28 member nations. The new rights established by the Directive provide minimum protections for whistleblowers that member nations may then strengthen. As drafted, the Directive will advance high standards by providing significantly stronger protections for whistleblowers than U.S. whistleblower protection laws.
For the last year, Government Accountability Project legal director Tom Devine has been a leader in the campaign to ensure the rights provided by the EU Directive are genuine and free from poison pills camouflaged in fine print. He commented, “If this agreement is finalized, Europe will surpass the United States free speech whistleblower rights. The Directive is a landmark breakthrough for transparency and accountability. Like all pioneer reforms, there are weaknesses due to compromises necessary for passage. But this is a new paradigm for freedom of speech.”
There are several weaknesses in the Directive that concern activists. They include the Directive’s inapplicability to national security whistleblowers, where the E.U. has no legal authority, as well as to whistleblower disclosures concerning labor rights and working conditions. The Directive also fails to overcome legal or medical professional privacy privileges, making it more difficult for whistleblowers to prove their case.
Core provisions of the agreement include –
- Scope of dissent – Protection for whistleblowers to challenge violations or abuse of authority that undermine EU laws.
- Legally safe audiences – Protection for whistleblowers who contact government authorities without first making internal disclosures, and the right to go directly to the media if they reasonably believe their disclosure concerns severe threats to the public, or if they reasonably believe the destruction of the evidence or retaliation against them is imminent.
- Mandatory whistleblower offices – A requirement that all companies with over 50 employees and towns with over 10,000 citizens set up official whistleblower offices to receive whistleblower disclosures.
- Temporary relief –– Whistleblowers may seek interim relief while their case is pending.
- “Make whole” remedy – Final relief that eliminates all prejudice to the whistleblower.
- Transparency – Nations are required to report on how whistleblowing disclosures have made a difference.
In numerous areas, the agreement gives whistleblowers far stronger rights than available in any U.S. laws such as:
- Coherence and consistency protecting more whistleblowers – One law with uniform rights for all current and former employees, their families, workplace colleagues, self-employed, volunteers and even shareholders.
- Broader scope of legal protection –Whistleblowers need only reasonably believe information is true for whistleblower protection to attach, compared to the U.S. standard requiring a reasonable belief that the law was violated, or similar legalistic categories.
- Superior burdens of proof – A presumption of retaliation whenever the whistleblower demonstrates protected speech and a subsequent harmful action, without requiring the employee to prove a “contributing factor” nexus connection.
- Access to personal, non-legal support – Includes legal aid, as well as financial and psychological counseling.
- Civil immunity – Ban on retaliatory “strategic lawsuits against public participation” (SLAPP), such as suits seeking damages for violations of gag orders, breach of contract and similar claims.
- Partial criminal immunity – Ban on prosecutions if obtaining the information did not independently violate criminal law. However, this still means which means whistleblowers may be criminally convicted for proving a crime.
The victory was the result of an intense campaign by: the Green Party, whose European Parliament Members championed the breakthrough; Transparency International’s Brussels office, which, with the European Green Party, led European Parliament lobbying; Eurocadre, the continent’s professional employee trade union and hub of coalition advocacy; and the Whistleblowing International Network that Government Accountability Project helped found in 2013. Whistleblowing International Network’s leader, Anna Myers, teamed up with Tom Devine for quality control of the Directive, and was on the front lines of the grassroots campaign. Last week, the activists submitted a petition for the directive signed by 280,000 people and 80 NGOs, including Government Accountability Project.
Contact: Tom Devine, Legal Director
Phone: (202) 457-0034 ext. 124
Government Accountability Project
Government Accountability Project is the nation’s leading whistleblower protection organization. Through litigating whistleblower cases, publicizing concerns and developing legal reforms, Government Accountability Project’s mission is to protect the public interest by promoting government and corporate accountability. Founded in 1977, Government Accountability Project is a nonprofit, nonpartisan advocacy organization based in Washington, D.C