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21.8.2001

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Official Journal of the European Communities

C 235 E/121

On 29 November 2000, the Commission adopted a consultative document entitled ‘Raising concerns about serious wrongdoings’ (SEC(2000) 2078/6). It sets out proposals that are currently the subject of consultation with its staff and their representatives. At the end of the consultation period, the Commission will formulate a conclusive proposal to be put to the Inter-Institutional Staff Regulations Committee for the amendment of the Staff Regulations. The document proposes to include in the Staff Regulations the duty for all staff introduced in 1999 with the creation of the European Anti-Fraud Office (OLAF)

to report wrongdoings either within their Institution or direct to OLAF, with the assurances that they will

face no adverse treatment for making such disclosures. The document also considers the circumstances in which such concerns may justifiably be disclosed more widely, and concludes that raising concerns about serious wrongdoing outside the employing Institution or OLAF should be an option of last resort, to be exercised legitimately only in the unlikely situation in which neither has addressed the concern in an appropriate way. In this extreme case the Commission considers it appropriate that the concern may be raised with the highest authorities of other European Institutions without fear of negative consequences for

whistleblowers who act in good faith.

In the Commission’s opinion the most effective way to encourage staff to report concerns within the

organisation is to provide clearly defined and secure internal reporting channels. As a further guarantee of serious attention, however, it is sensible to provide for safe and specified routes through which staff may raise legitimate concerns outside the organisation as an option of last resort.

The Commission is confident that by ensuring acceptable, safe and serious ways in which staff can raise a concern about wrongdoing, an open and self-disciplined culture is encouraged with consequent effect of deterring wrong or unacceptable conduct. A culture in which staff has confidence to raise such concerns

ensures that it is more likely in those rare cases where wrongdoing actually occurs, that it can be detected

at an early stage and addressed responsibly and effectively. Equally where a concern is based on mistaken

information or there is an innocent explanation, such a culture allows such misunderstandings to be

swiftly corrected.

Far from seeking to be an exception from good practice, the Commission is seeking to strengthen existing provisions for civil servants to discharge their duty of reporting suspected wrongdoing. Implementation of arrangements of the kind proposed will give the Commission and its staff rules which are comparable with the best in any Member States in the Union.

The principles which would be made operational would facilitate reporting in good faith, serious and thorough treatment of reports, the conduct of investigations in ways that would not compromise civil rights (including the presumption of innocence), the career security of an official exercising the reporting duty, or the effective disciplinary or prosecution of any persons found to be guilty of wrongdoing.

A basic purpose of having good ‘whistleblowing’ arrangements is to deter potential wrongdoers and to

apprehend actual wrongdoers and deal with them in a just way. A system which did not have the characteristics of the proposals set out by the Commission could give the appearance of being transparent, but in practice could also be rendered ineffectual by untimely disclosure or faults in procedure.

(2001/C 235 E/127)

WRITTEN QUESTION E-0112/01

by Erik Meijer (GUE/NGL) to the Commission

(1 February 2001)

Subject: Whistle-blowers (2): how shortcomings in the rules discourage and prevent their activities

The Commission’s new internal rules on whistle-blowing (Raising concerns about serious wrongdoing ‘whistle-blowing’), (SEC(2000) 2078 A/5 of 29.11.2000), do not appear likely to satisfy the high expectations invested in them.

C 235 E/122

Official Journal of the European Communities

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21.8.2001

I should like clarification of the following points in the Commission’s proposals:

1. Why does the Commission apply to each act of whistle-blowing the unconditional requirement that all information must first be reported to OLAF before a whistle-blower may approach another body, and why does the whistle-blower have to allow OLAF a specific period of time decided by OLAF to respond? My impression is that this has an unnecessarily inhibiting effect. Nor is it always productive, because there are areas for which OLAF is not competent, and it is possible to imagine circumstances where it is unreasonable to expect the whistle-blower to report to OLAF first. My information suggests that this has already been drawn to the Commission’s attention in internal consultations.

2. Why is the burden of proof solely and exclusively on the shoulders of the whistle-blower, with the result that practical action to protect him/her is virtually impossible? Why is protection made even more difficult by severely limiting the channels for whistle-blowing?

3. Why has the Commission contented itself with a meaningless clause on the protection of whistle- blowers which contains no practical details of protection whatsoever and, furthermore, provides absolutely no guarantee of protection because there are no sanctions? How does the Commission expect to use this voluntary intention in practice to protect whistle-blowers from informal harassment, official demotion or dismissal?

4. Although it is per se advisable for a whistle-blower to seek impartial advice before blowing the whistle, it is doubtful if such advice can be impartial if he/she is not free to choose to whom to turn for advice. This might even suggest that this obligation is principally intended to stress to the whistle- blower that any action is inadvisable. Can the Commission explain why it nevertheless wants whistle- blowers to appeal to a specially set up internal Commission service for advice?

Answer given by Mr Kinnock on behalf of the Commission

(11 April 2001)

The Commission would first of all draw the Honourable Member’s attention to the fact that the document to which he refers is for consultative purposes as explained in its answer to his Written Question E-0111/ 01 ( 1 ). It does not contain conclusive proposals and it has not yet been put into effect.

With this proviso, the answers to the Honourable Member’s detailed questions are as follows:

1. Under the Interinstitutional Agreement of 25 May 1999 of the Parliament, the Council and the Commission ( 2 ) the responsibility of the European Anti-fraud Office (OLAF) extends beyond the protection of the financial interests of the Community to include all activities relating to the need to safeguard Community interests against irregular conduct liable to give rise to administrative or criminal proceedings. The Office is thus the essential point of reference for any staff member that becomes aware of evidence which gives rise to the presumption of the existence of possible serious wrongdoings that could potentially have an adverse effect in the interests of the Community.

Furthermore, the Honourable Member’s attention is drawn to the fact that under the existing rules each member of staff has the obligation to report concerns of serious wrongdoing, and the guarantee of protection when that duty is exercised.

The proposal in the consultative document relating to the requirement of prior consultation of the Office as a pre-condition for any wider disclosure is to ensure that OLAF is informed, and can take action, even if the staff member makes the legitimate choice of fulfilling his or her obligation of reporting by informing the hierarchy and not informing the Office.

21.8.2001

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Official Journal of the European Communities

C 235 E/123

The Commission considers that an investigation by OLAF is the most appropriate means of enabling action to be taken by the employing Institution if the allegations are confirmed by the investigation. At the same time such an investigation provides a safeguard for third persons from being wrongly accused of wrongdoing. To allow an effective investigation the Office must meet a time limit which is reasonable and commensurate with the difficulties of investigating each case. In the nature of such investigations, it is not possible for any investigating body to meet pre-determined and explicit timetables for concluding their activities.

2. The Commission considers that the obligation to report concerns related to serious wrongdoing, and the corresponding protection for those who fulfil this obligation, provide the necessary protection for staff, whichever specified reporting channel is used.

The only ‘burden’ for a staff member is to consider carefully whether, to the best of his or her knowledge, the evidence gives rise to a presumption of a serious wrongdoing. The additional possibility of informing a President of another Institution or the European Ombudsman is proposed in the consultation document in order to cover eventualities in the unlikely event that the independent European Anti-fraud Office has not taken appropriate action.

3. The protection foreseen for legitimate reporting, whether under the reporting obligation or wider disclosure to one of the defined additional channels, would be guaranteed by the Staff Regulations and respect of these rights would therefore be subject to judicial control.

4. The Commission considers, in line with the recommendations of the Committee of Independent Experts and the OECD, that independent advice should be available for staff members confronted with the situation of deciding whether or not a disclosure to a party outside the employing Institution, other than OLAF, is likely to be protected. The Commission understands that people who find themselves in such a situation can face personal dilemmas, and in the consultative document the Commission has emphasised that the advice must clearly be independent and confidential.

The advice clearly needs to relate to the facts of the case and also to the legal environment established in the Staff Regulations and specific to EU civil servants. The Commission is therefore proposing in its consultative document to attach this function to its mediation service or to create a new facility for impartial and confidential advice. Civil servants would have the opportunity, but not the obligation, to seek advice from this body. The provision of such a facility is intended entirely to be helpful to officials. Its use would be voluntary.

( 1 ) ( 2 )

See p. 120. OJ L 136, 31.5.1999.

(2001/C 235 E/128)

WRITTEN QUESTION E-0113/01

by Erik Meijer (GUE/NGL) to the Commission

(1 February 2001)

Subject: Whistle-blowers (3): encouraging whistle-blowers to use OLAF voluntarily by giving practical proof that it is effective and rapid

1. Can the Commission confirm that following consultation between the services, and after the meeting

of the Commission last November, part of the text of Commissioner Kinnock’s original proposal relating to a proposed change to the Staff Regulations (new Article 22b(1)) has been deleted, even though it was this text which gave whistle-blowers the opportunity of approaching not only the President of the Commission, the Council of Ministers or the European Parliament but also, if necessary, a third party (‘such other person as the official can demonstrated was justified’)?

2. Does the Commission agree that omitting the right referred to in question 1 reduces the scope for

protecting whistle -blowers and can therefore be to their disadvantage alone? Why did the Commission decide to do this?