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(SL 1981

AUSTRIAN
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Edited by
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Lisa HESCHL
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•
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1
Gerd OBERLEITNER
Unfted Nabons UNESCO Chair i
Edunationai, Scienttfio and • Human Rghts and Hurnan Secwity
Cuflura Organizatian • Universtiy of Graz, Austria

ÁVÁ
VÀVLudwig Boltzmann tnstitute
Human Rghts

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Intersentia v
 WHISTLEBLOWING IN EUROPE
A New Era of Legal Protections

Vigjilenca ABAzI

1. Introduction 92
2. EU Directive on Whistleblower Protection 94
2.1. Toward a Legal framework 94
2.2. ‘Gold’ Standards of Protection 98
2.3. lhe Gap: National Security Whistlebiowing 102
3. ‘Whistleblower Speech’: ECtHR Principies 104
4. Institutional Accountability and freedom ofPress 107
5. Conciusion 109

ABSTRACT

Europe rnarks a new stage in protecting whistiebiowers. With a vast majority,

in April 2019 the European Pariiament (EP) voted positiveiy on the Directive
protecting whistleblowers that for the first time offers leading legal standards
across the European Union (EU). In the same month, the Council of
Europe (CoE) adopted a Resolution on the local and regional protection of
whistleblowers. lhe European Court of Human Rights (ECtHR) has also judged
in favour of whistleblowers in a number of cases as part of defending freedom
of expression. Whilst civil society and progressive legislators have been calling
for protection of whistieblowers in Europe for over a decade, many national
governments were not in favour ofopening channels of disclosure for insiders. At
the sarne time, key information on abuses of power and corruption only became
avaílable to the public due to whistleblowers in iight of the erosion of rule of
law and the weakening of traditional accountability checks in many European
states. Whistleblowing received more posítíve public attention, which in turn
yielded support for establishing legal protections. This contribution maps these
developments, the current EU legíslative framework as well as the ECtHR case
law. Whilst the contribution acknowledges the significance of whistleblowing in
invigorating the rule of law in Europe, it argues that its effectiveness is essentially
contingent upon the proper functioning of instilutional accountability and the
solidity of freedom of press at the national levei.

Intersentia 91
 Vigjilenca Abazi
1. INTRODUCTION
In Siovalda, Jàn Kuciak was an investigative joumalist working on revealing tax
fraud by several businessmen linked to the highest Slovak government officials.
Both he and his partner were shot in his own home by a hired killer with the
purpose to terminate bis efforts in disclosing corruption.’ This dramatic event
not only shocked the country, but it eventually lead to the fali of the Slovak
government and a recent election of the first ever female anti-corruption lawyer
as President of the country.2 Another important revelation of public interest
was brought by the french whistleblower Antoine Deltour in the well-known
LuxLeaks case, exposing tax schemes in Luxembourg involving 340 companies
worldwide.3 Whilst the EP awarded Deltour with the European Citizen’s Prize
in 2015 for promoting European values by defending democracy,4 national
authoríties prosecuted him and a series of cases before the national judiciary
begun. In fact, only 9 out of 28 EU Member States have national laws providing
dedicated legal protection for whistleblowers.5 However, many of these laws
have not fully met best practice standards and many are narrowly construed,
R. CAMER0N, ‘Jan Kuciak Murdered Slovakia Joumalist Remembered B3C News, 21.02.2019,
available at https://www.bbc.com/news/world-europe-47294178, last accessed 19.06.2019.
On the importance of whistleblowing for purposes of anti-corruption see E ANEcH;ARIco,
lhe Pursuit ofAbsolute Integrity: How Corruption Control Makes Government Inefective, lhe
University of Chicago Press, Chicago 1996, for the implications 00 organisations and work
based protections, see M. MIcELI and J. NEAR (eds.), Blowing the Whistte: lhe Organizational
and Legal Implications for Companies and Employees, Lexington Books, New York 1992.
See more generally R.G. VAuGHN and A. ALLEN (eds.), Whistleblowing Law, Edward Elgar
Publishing, United Kingdom 2015.
2 to the General Assembly on the Protection of Sources and Whist!eb!owing in 2015, see UN
1 SIJ0TTER, Anti-Corruption Lawyer Elected Slovakia’s First female President Financial
Times, 31.03.2019, available at hftps://www.ft.com/content/c8a2787a-5322-1 1e9-a3db-
lfe89bedcl6e, last accessed 19.06.2019. See also J. Accsop, ‘In Siovalda, a Murdered Journalist
and a Pro-Press President Columbia Journalism Review, 26.04.2019, available at https://www
cjr.org/analysis/jan-kuciak-slovalda-zuzana-caputova.php, last accessed 19.06.2019.
A. DELT0uR, ‘LwcLeaks Whistleblower’s Long Legal Battle Continues’, Transparency
International’, 21.11.2017, available at https://wwwtransparency.org/news/feature/antoine_
deltour_luxleaks_whistleblowers_longjegalbattle_continues, Iast accessed 19.06.2019.
V ABAzI, ‘Leaked Transparency and Whistleblowers’, VerfassungsBlog on Matters Constitutional,
02.05.2016, available at https://verfassungsblog.de/leaked-transparency-and-whistleblowers,
last accessed 19.06.2019,
lhe following MS have dedicated laws: Ireland, france, Luxembourg, Romania, the
Netherlands, Slovakia, Siovenia, Sweden and the UK. lhe following 13 MS have some partia!
protection as provided by different national provisions: Austria, Belgium, Cyprus, Czech
Republic, Denmark, Estonia, Germany, Greece, Hungary, Italy, Latvia, Malta, Poland. On
basis of the European Commission data, the following are noted to have ‘comprehensive’
laws: france, Hungary, Ireland, Italy, Lithuania, Malta, the Netherlands, Slovakia, Sweden,
and the UK. See European Commission, Directorate-General for Justice and Consumers,
Fact Sheet, April 2018.
92 Intersentia
Whisdeblowing in Europe
iike the case of Luxembourg, which resulted with prosecution of Deltour.6 For
example, best practice standards would ensure the whistjeblower does not
face consequences for taldng material that is relevant of public interest to be
disclosed and cannot be considered theft, which was charged under the Dehour
case. These significant events have impelled the European legislator in moving
forward with whistleblower protection for which civil society and the EP had
been long caliing for in the past decade.7
In April 2019, Europe marked a new era for protection of whistleblowers as
we witnessed both the positive vote by the EP for the EU Directive on protection
of whistlebiowers covering the public and private sector as weli as the adoption
of the Resolution by the CoE for the first time calling for specíai attention to and
relevant protection of whistleblowers at regional and local levei.8 The stream of
cases in front of the ECtHR has also been growing and the Court has granted
protections to a variety of cases ofwhistleblowing.9 This contribution maps these
developments, the current legal frameworks as well as the case iaw. Whilst the
6 M. W0RTH, ‘Gaps in the System: Whistlebiower Laws in the EU’, Btueprint for free
Speech, Report Series, 2018, available at https://b!ueprintforfreespeech,net/wpcontenti
uploads/2018/03/BLUEPRINT-Gapsinthe.SystemwhistIebiowersLawsintheEU.pdf,
last accessed 19.06.20 19.
Other significant efforts include the CoE Report on ‘lhe Protection of “Whistle-Biowers”,
23.06.2009. See P. OMTzIGT, ‘The Protection of Whist!e-Blowers Parliarnentary Assernbly,
Comrnittee on Legal Affairs and Human Rights, Report, Doc. 12006, 14.09.2009, available at
https://assemb1y.coe.int/nw/xm!/xRef/xrefxML2HTMLen.asp?fiieid. 12302&iang=en,
last accessed 19.06.2019. A series of evatuation reports by the Group of States Against
Corruption, see e.g. GROUPE D’ETATS CONTRE LA CORRUPTION (GRECO), ‘Seventh
General Activity Report of GRECO (2006)’, Greco 19—23 March 2007, Greco (2007) IE final,
21.03.2017, available at https://whistlenetwork.flles.wordpress.com/2o14/ol/seventhgeneral
activity-report.pdf, last accessed 19.06.2019 and the Report of the UN Special Rapporteur
GENERAL ASSEMBLY, ‘Report of the Special Rapporteur to the General Assembly on the
Protection of Sources and Whistieblowers’, 2015, availabie at https://wwwohchr.org/EN/
Issues/freedomOpinion/Pages/ProtectionOfsources.aspx, !ast accessed 19.06.2019.
8
See tbe conso!idated text adopted by the E? 015 16 Apri! 2019, European Parliament legislative
resolution of 16 April 2019 on the proposai for a directive of the European Parliament
and of the Council on the protection of persons reporting on breaches of Union Iaw
(COM(2018)0218 C8-0159/2018 201$/0106(COD)). See also COUNCIL Qf EUROPE,
— —
Congress of Local and Regional Authorities 36th Session, ‘lhe Protection of Whistleblowers:
Chaltenges and OpportunitiesforLocal and Regional Government’, Report CG36(2019)l4fina!,
03.04.2019; Reso!ution 444 (2019), Debated and adopted by the Congress on 3 April 2019,
2nd sitting, see Document CG36(2019)14, explanatory memorandum, Rapporteur Josan
MEIJERS, Netherlands (R, SOC).
For an anaiysis of those cases see V. ABAzI and F. KUSARI, ‘Comparing the Proposed EU
Directive on Protection of Whistleb!owers with the Principies of the European Court of
Human Rights’, Strasbourg Observers, 22.10.2018, available at https://strasbourgobservers.
comJ2O 18/ lOI22/comparing-the-proposed-eu-directjveonprotectionofwhistleblowers-
with-the-princip!es-of-the-european-court-of-humanrights, last accessed 19.06.2019. See
section 3 in this contribution for anaiysis and footnote 7 for list of cases.
Intersentia 93
 Vigjllenca Abazi
contribution acknowledges the significance of whistieblowing in invigorating
the rule oflaw ín Europe, it argues that its effectiveness is essentíaily contingent
upon the proper functioning of instftutionai accountability and the solidity of
freedom of press at the nationai levei.
2. EU DIRECTIVE ON WHISTLEBLOWER PROTECTION
The legal protection of whistleblowers in Europe has been fragmented with
significant variations from countries with lack of any national law for protection
to those with advanced and dedicated protections.’° Even in terms of wording,
‘whistlebiowing’ is not a concept widely recognised in ali EU Member States
and pubiic opinion until recently was not significantiy favourabie toward
whistleblowers.” Many misunderstandings stili persist in terms of who is or
who could be a whistleblower and public comprehension ofthe salience of legal
protection for whistieblowers is yet emerging.’2
A leading rationale of the new Directive of the EU is to address such
fragmentations and remedy legal uncertainties for whistleblowers. This section
provides the background of the EU Directive and the efforts to reach legal
protection in the EU. It then analyses the main legal features of the Directive
and lastly, points to its limitation in offering protection to national security
whistiebiowers, which are arguabiy the most vuinerable and have the potential
to reveal the most severe ldnds of power abuses.13
2.1. TOWARD A LEGAL FRAMEWORK
Calis from the civil society and the EP for protecting whistleblowers have been
consistent in the past decade. Such efforts were focused on improving protections
for EU public officiais as well as establishing protection for persons at the national
levei in the public and the private sector. Regarding EU officíais, starting back
in 2006, the EP discussed an expert study conciuding that at the time existing
10 The first study that offered a comprehensive view ou the matter in different Member States with
the specific focus on the European Union was conducted by Transparency International that
gathered original data from national levei reguiations, see TRANSPARENCY INTERNATIONAL,
‘Whistlebiowing in Europe: Legal Protections for Whistlebiowers m the EU’, 05.11.2013,
available at https://wwwtransparency.org/whatwedo/pub1ication/whist1eblowingJn_europe_
legal_protections_for_whistleblowers_in_the_eu, last accessed 19.06.2019.
See M. W0RTU (2018), ‘Gaps in the System’, supra note 6; jt provídes an updated overview of
legisiations and the extent to which national reles meet sufficient standards.
12 TRANSPARENCY INTERNATIONAL (2013), ‘Whisileblowing m Europe supra note 10, pp. 19—21.
13 R. SAGAR, ‘Ou Combating the Abuse ofState Secrecy’, (2007) 15 Journal ofPotitical Phitosophy,
p. 404.
94 Intersentia
Whistleblowing m Europe
whistieblower ruies needed to be reviewed in more depth and possibly revised)4
A revision was seen as necessary in order to set up rules that are integrated
into a comprehensive system of EU governance and ethícs guidelines. With
respect to protection of persons at nationai levei, the EP initiated such calls as
ofSeptember 2013 when it issued a study on ‘The US National Security Agency
Surveillance Programmes and foreign Inteiligence Surveíllance Act activities
and their impact on EU citizens’ fundamental rights This study outiined the
severe consequences of the lack of coherent protection of whistleblowers at
the national levei and referred to the need for legislation to address this gap
in protection.’5 Only a month iater, in a Resolution on ‘Organised crime,
corruption and money laundering: recommendations on action and initiatives
to be taken the EP called 011 the Commission ‘by the end of 2013, to submit
a iegislative proposal estabiishing an effective and comprehensive European
whistieblower protection programme in the public and in the private sector’:’6
In November 2015, prompted by the LuxLeaks scandal, in the Resolution on
‘Tax Rulings and other Measures similar in Nature or Effect the E? condemned
the fact that ‘whistleblowers, who provide national authorities, in the public
interest, with crucial information about misconduct, wrongdoing, fraud or
iliegal activities or practices, can be subject to legal prosecution, as well as to
personal and economic repercussions’:’7 In December 2015, in the Resoiution on
‘Bringing transparency, coordination and convergence to corporate tax policies’
the Parliament called once again for the protection ofwhistleblowers, discussed
such protection as reievant to ensure the right of freedom of expression and
information, and considered that a legislative proposal on whistlebiowing
protection may take as a basis the Regulation 596/2014 of the EP and of the
Council 011 trade secrets and take into account the CoE’s Recommendation on
the protection of whistlebiowers)8
14
v ABAzI, New Directive ou Whistleblower Protection, EU Law Analysis: Expert Insights into
EU Law Developments, 23.04.2019, available at http://eu1awana1ysis.blogspot.com/2019/04/
new-eu-directive-on-whistleblower.html, Iast accessed 24.06.20 19.
IS
Study for EP, C. BOwDEN, ‘The US Surveillance Programmes and their Impact on EU Citizens’
fundamental Rights’, Note, PE 474.405, September 2013, available at http://www.europarl.
europa.eu/meetdocs/2009JOI4Idocuments/libe/dv/brieflngnote_/briefingnoteen.pdf, last
accessed 19.06.2019.
6
EP, ‘Resolution ou Organised Crime, Corruption and Money Laundering: Recommendafions on
Adiou and Initiatives to be Taken’ (final report), (2013/2107(INI)), 23.10.2013, Strasbourg,
point 14, availabie at hftps://www.europari.europa.eu/sides/getDoc.do?type=TA&reference=
P7-TA-2013-0444&Ianguage=EN, last accessed 19.06.2019.
17
E?, ‘Resolution ou Tax Rulings and Other Measures Similar in Nature or Effect’,
(2015/2066(INI)), 25 November 2015, point 19, available at http://www.europarl.europa.eu/
doceo/document/TA-$-201 5-0408_EN.html, last accessed 19.06.2019.
E?, ‘Resolution with Recommendations to the Conimission ou Binging Transparency,
Coordination and Convergence to Corporate Tax Policies in the Union’, (2015/2010(INL)),
16 December 2015, available at http://www.europarl.europa.eu/doceo/document/TA-$
2015-0457EN.html, last accessed 19.06.2019.
Intersentia 95
 Vigjilenca Abazi
In other words, the EP has actively called for a legislative proposal by the
Commission for many years and ín variety of documents. Yet it was either met
by no response or with a legalistic answer that the Comrnission simply did not
have the appropriate legal basis to propose an EU legislative act on the matter
taking into account that the EU may only legislate on issues in accordance
with íts delegated powers and in une with EU Treaties.19 This kind of answer
by the Commissíon however failed to acknowledge the fact that in a direct or
indirect manner the EU had in fact some rules in place that offered some ldnd of
protections, even ifsuch acts did not always refer to the act of disclosure in public
interest with the notion of ‘whistleblowing2° The prime example of referring
to whistleblowing directly is the EU Trade $ecrets Directive of 2016, which
foresees whistleblowing as an exception to the legal regime on the protection of
trade secrets.2’ The trade secrets regime recognises whistleblowing as a form
of freedom ofexpression and its instrumental role as a reporting mechanism in
the public interest.
The first indication of the Commission possibly moving in a different direction
and considering the possibility ofproposng an EU act carne in May 2016. With
the lead initiative by the Greens in the EP, a rnodel Directive was presented
offering a legal basis for legislation based on the Treaty on the functioning of
N. NIELsEN, ‘EU-Wide Whistleblower Protection Law Rejected EU Observer, Brusseis,
23.10.2013, available at https://euobserver.com/justice/1 21873, last accessed 19.06.2019.
20 See RegulaUon 537/2014 on specific requirements regarding statutory audit of public-interest
entities and repealing Commission Decision 200519091EC; Directive 2014/56/EU amending
Directive 2006/43/EC on statutory audits of annual accounts and consolidated accounts; Directive
2015/849 on the prevention of ffie use of the financial system for the purposes of money laundering
or terrorist financing, amending Regulafion No 648/2012 of the European Parliament and of ffie
Council, and repealing Directive 2005/60/EC of ffie European Parlíament and of ffie Council
and Commission Direcfive 2006/70/EC; Directive 2016/943 on the protection of undisclosed
know-how and business information (trade secrets) against their unlawful acquisition, use
and disdosure; Regulation 596/2014 on market abuse (market abuse regulation) and repealing
Directive 2003/6/EC of the European Parliament and of the Coundil and Conmiissidn
Directives 2003/124/EC, 2003/125/EC and 2004/72/EC; Comrnission Implementing Directive
on Regulation No 596/2014 of the European Parliament and ofthe Coundil as regards reporting
to competent authorities of actual or potential mfrrngements of that Regulation; Directive
2009/65 on the coordmation of laws, regulations and administrative provisions relating
to undertaldngs for coflective investment m transferable securities, Regulation 575/2013 011
prudential requirernents for credit institutions and investment firms and amending Regulation
No 648/2012; Direcflve 2013/36 011 access to the acüvity of credit institutions and ffie prudential
supervision of credit institutions and investment flrms, amending Directive 2002/87/EC and
repealing Directives 2006/4$/EC and 2006/49/EC; Directive 2013/30/EU on safety of offshore oU
and gas operations and amending Directive 2004/35/EC; Regulation 376/2014 on the reporting,
analysis and follow-up ofoccurrences incivil aviation.
2! See Artícle 5. Directive 2016/943 of the European Parliament and of the Council of $ June
2016 cm the protection of undisclosed know-how and business information (trade secrets)
against their unlawful acquisition, use and disclosure, 01 L 157, 15.06.2016, pp. 1—18. See
also V. ABAZ;, ‘Trade Secrets and Whistleblower Protection iii the European Union (2016)
1(3) European Papers, pp. 1061—1072.
96 Intersentia
Whistleblowing in Europe
the European Union (TFEU) and making the case for EU law on protection of
whístleblowers.22 Thereafter, the Commission took a series of steps, including
issuing external studies to be conducted, releasing communications and
providing an impact assessment on the protection of whistleblowers, followed by
a wide public consultation process that showed the broad and clear consensus of
different stakeholders for a legislative proposal on protecting whístleblowers.23
At the time of these legal developrnents, Europe was also struck by the shocking
murder of investigative journalists in Malta and Slovakia who were relying on
whistleblowers sources in their pursuit to reveal the abuses of powers in their
countries. Indeed, Vice-President of the Commjssjon noted that the aim of the
proposed Directive was to ‘also protect those who act as sources for investigative
journalists, helping to ensure that freedom of expression and freedom of
the media are defended in Europe directly alluding to the cases of Daphne
Galizia in Malta and Jàn Kuciak in Slovakia.
Whilst efforts to pusli the Commission toward proposing legislation were
indeed arduous, once the legisuative proposal was on the table further efforts
were necessary to ensure that the proposed law is adequate in protecting
whistleblowers rather than establishing rules that fail short of meeting best
practice standards. The most relevant aspect was the provision in the proposed
Directive that protection for whistleblowers would be made conditional on
their first and foremost reporting internally in the organisation. However, such
obligations in practice have shown to mostly delay accountability and increase
the risks for retaliation against the whistleblower. In this sense, the concerted
effort by civil society auong with unions, whistleblowers, and scholars has been
crucial to ensure the amendment ofthe proposed provision.24 Equally relevant in
this legislative process was the insistence of the Rapporteur Rozière, who made
this file one of her biggest priorities, to defend the interest of whistleblowers in
choosing the best available channels of reporting and not create a binding legal
obligation that whistleblowers first report internally within their organisation.25
22
See V. ABAzI and A. ALEMANN0, ‘Whistleblower Protection in the Public and Private
Sector in the European Union’, Drafi Directive, Legal Elements of the Proposal and
Proposal, 04.05.2016, available at https://www.greens-efa.eu/legacy/flleadmin/dam/Images/
Transpazencycampaign/WBdirectivedraft_forconsultation_launchMay2o1 6.pdf, last
accessed 19.06.2019.
See Lhe EUROPEAN COMMISSION, JUSTICE AND CONSUMERS, Press Release, ‘Robust
Protection for Whistleblowers Across EU: Commission Proposed New Rules 17.04.2018,
providing ali Use documento, official proposal as well as annexes to the proposed law, available at
https://ec.europa.eu/newsroom/just/itemdetail.cfm?ítemid6204oo, last accessed 19.06.2019.
24
See V. ABAzI and A. ALEMANN0, ‘How the EU Can Help Protect Whistleblowers’, Bloornberg
Opinion, 01.05.2018, available at https://www.bloomberg.com/opinion/arücles/201 8-05-01/
how-the-eu-can-help-protect-whistleblowers, last accessed 19.06.20 19.
25
EP, ‘First EU-wide protection for whistleblowers agreed Press Release, Brusseis, 12.03.2019,
availabte aI http://www.europarl.europa.eu/news/en/press-room/20 19031 1IPR3 1 055/flrst-
eu-wide-protection-for-whistle-blowers-agreed, last accessed 19.06.2019.
Intersentia 97
 Vigjilenca Abazi
Practice shows that whistleblowers nevertheless in the vast majority of cases at
the first instance report internally wfthin the organisation.26 However, making
protection contingent upon such interna! reporting chilis whistieblowing
in instances where doing so would either harm the whistleblower or even
the process of accountability, as for example an organisation may destroy
incriminating evidence.
As a result ofthese various and continuous efforts, on 16 April 2019 the EP
with a vast majority voted in favour of the amended EU Directive. The following
sub-section examines more closely the substance of this law and discusses the
standards it sets for protection ofwhístleblowers.
2.2. ‘GOLD’ STANDARDS OF PROTECTION
lhe EU has raised the bar for altEUgovernments to lead the wortd in promotinggold
standard protections for whisttebtowers [...].27
Wbilst the EU may be recognised to be an important legislator in setting standards
in Europe and having an international effect, as studies on the ‘normative power’
and the ‘Brusse!s Effect’ expiam,28 it is seldom that EU legislation is praised by civil
society for adopting adequate norms in attaining valuable ends. With respect to
whistlebiowing, however, possibly due to the civil society influence ín the process,
the Directive has been acknowledged to contribute with leading standards, as
the quote by the Whistleblowing International Network demonstrates. To be
clear, the objective of this Directive is to provide for minimum harmonisation
standards that shouid be adopted at the national levei and in this respect Member
States may choose to adopt even further provisions that strengthen the regime,
but cannot adopt rules that do not meet the EU standards. The EU has, however,
made sure that key provisions in the Directive adopt standards that offer a process
fair to whistieblowers. In assessing the standards set by the Directive attention is
focused on the following five main issues: the scope of coverage, the threshold
to be met in order for protection to apply, the process of reportíng, whether
26
W. VANDEKERcKFI0vE, C. JAMES and f. WEST (eds), Whistleblowing: The Inside Story —
A Study of the Experiences of 1,000 Whistteblowers, Project Report, Public Concern at Work,
United Kingdom 2013.
27
WHISTLEBLOWING INTERNATIONAL NETWORK, ‘New EU Directive on Whistleblower
Protection WIN Press Release, 17.04.2019, available at https://whistleblowingnetwork.
org/2019/04/17/wín-press-release-new-eu-directive-on-whistleblower-protection, last accessed
19.06.2019.
25 See for the former as first discussed in the context of international relations by 1. MAneEas,
‘Normative Power Europe: A Contradiction in Terms (2002) 40(2) Journal of Common
Market Studies, pp. 235—258; see for the latter, A. BaDroRD, ‘The Brusseis Effect (2012)
107(1) Northwestern University Law Review, pp. 2—64.
9$ Intersentia
Whistleblowing in Europe
whistiebiower prOtection trumps regimes of constraining information, and lastly
the kind of liabilities and legal remedies for the whistleblower. In this section, we
examine each of these aspects in more detaii.
First, the personal and material scope of protection is crucial or in other words
who would be afforded protection and for what policy issues. The Directive lias
a wide horizontal reach ofcovering persons both in the public and in the private
sector. Articie 4 is wideiy construed and it also refers to: civil servants, the self
employed, shareholders, management, administrative or supervisory bodies,
volunteers, paid or unpaid trainees, contractors, subcontractors and suppliers,
individuais disclosing breaches during a recruitment process and former workers.
The Directive does not encompass EU officials as different sets of rules apply for
EU institutions. The Directive has a wide scope ofprotection not only in terms of
who can be a whistleblower, but also mil terms of policies that it covers. Article 2
on material scope stipulates that disclosure should be related to a breach or
abuse of EU law in any of the following issues: public procurement, financial
services, prevention of money laundering and terrorist financing, product
safety, transport safety, protection of the environment, radiation protection and
nuclear safety, food and feed safety, animal health and welfare, public health,
consumer protection, protection of privacy and personal data and security of
network and information systems, protection of the financial interests of the
Union, breaches of internal market rules, including competition and State aid
rules or tax avoidance issues. Strictly national policies are not covered as the
Directive refers to ‘breaches of Union law Violations of worker’s rights and
working conditions are also not covered per se and as discussed below, issues of
national security are not covered.
lhe second aspect relevant for protection is the threshoid set out in order for
a person to qualify as a ‘whistleblower’ for the person to be granted protection
by disclosing information, the person must have reasonable grounds to believe
that the information reported was true at the time of reporting and that the
information feli within the scope of the Directive. This aspect distinguishes
the Directive in a positive way from many national laws since the Directive
requires ‘reasonable belief’ that the disciosure is true and relevant without
making ffie disclosure contmngent upon whether the misconduct has occurred or
requiring disclosure of a motive from the whistleblower, which is necessary ifthe
‘good faith’ ofthe whisflebiower is a requirement.29 As to whether the disctosure
29
The difference between lhe two is significant as lhe ‘good fafth’ model requires an examination
into the motive of the person and makes it a subjective evaluation, whereas reasonableness
standard is objective and merely asks whether a reasonable person would have made the
sarne revelation without entering into the examination ofthe whistleblower and motivations.
Furthermore, it becomes disputable whether the motive is ofrelevance as long the disclosure
is ofpublic interest.
Intersentja 99
 Vigjilenca Abazi
is indeed of public interest that is another matter, which is not narrowly defined
but it is left to the case-by-case basis of the judiciary to be determined.
lhe most contested issue during the negotiations of this Directive is the
third element of assessing the levei of protection, i.e. what reporting channels
are foreseen and whether the whistleblower may maintain anonymity in the
disclosure. lhe latter is a contested issue as many hold the positÍon that for
an individual to be granted protection he or she should be coming forward
in public not only with the informatjon but also with their identity. However,
in some cases doing so could even be life threatening or even if the employer
does not retaliate, the individual’s life may be affected negatively in light of
media attention or public reaction to such disciosures. Indeed, in issues of
competftion rules applying to undertaldngs, the Commission has already — reporting ofinformation. In this regard, the Directive is clear that the protection
prior to the Directive established anonymous reporting. lhe Directive
—
becomes applicable if an individual who initially reported anonymously is
subsequently identified and suffers retaliation. As for channels of reporting the
Dírective foresees internal reporting, external reporting and public disciosure.
For internal reporting, Member States are obiiged to establish channels and
procedures of reporting as well as follow up on the reports received. Channels
for reporting must be set up by companies with more than 50 employees. Local
authorities that have fewer than 50 employees or municipalities with fewer than
10,000 inhabitants are exempt from ffie obligation to set up channels of reporting.
Upon the reported disclosure, the authority is obliged to acknowledge its receipt
and must follow-up in a period not exceeding three months since the receipt.
Importantly, channels of reporting are wide and include any reporting done in
writing and/or orally, through telephone lines or other voice messaging systems,
and upon request of the reporting person, by means of a physical meeting.3°
External reporting channels must meet the criteria of independent and
autonomous reporting with technical details set out in Articles 11—13 on what
the specific requirements for such authorities are. Lastly, and most importantly,
Articie 15 stipules protection when reporting is done through public channels,
such as media. Specific conditions appiy that the whistlebiower must meet, in
addition to the threshold of reporting explained above. Namely, first, a person
may publicly report the information if he or she tried other internai and external
channels and they did not lead to appropriate actions. A second basis is that
the person has grounds to believe that the breach may constitute an imminent
or manifest danger for the public interest, such as where there is a situation of
emergency or a risk of irreversible damage, or that there is a risk of retaliation
or there is a low prospect of the breach being effectively addressed, due to the
particular circumstances ofthe case, such as that evídence may be concealed or
destroyed or that an authority is in coliusion with the perpetrator of the breach
&
30 See Article 9(2) Directive.
100 Intersentia
Whistlebtowing in Europe
or involved in the breach. lhrough internai, external and public reporting
channeis the Directive estabiishes a system of reporting that is both able to
capture ffie interest of employers wiffi the information not becoming immediately
pubtic, for exampie in a situation when it can be internally fixed, but it also
provides an avenue for whistleblowers to be able to directly report to the press
in such cases that are necessary for the effectiveness of the reporting as weii for
the safety of the individual, lhe extent that these channels will indeed function
depends on the adequacy ofimplementation ofthe law at the national levei.
lhe fourth element signfficant in the appraisal of the protection offered
by the Directive is the extent to which whistleblower protection trumps
legal regimes that foresee different ldnds of restrictions on the publication or
of whistleblowers trumps restrictions on disclosure such as non-disclosure
agreements contracts, trade secrets, data protection laws, breach ofcopyright, or
breach ofcontract or evidence obtained through theft of organisational property,
even if the evidence is not directly related to tasks of the whistieblower. As a
counterbalance in stipulating such protections in order to ensure that incentives
do not fali on actually breaching the law, the Directive requires a reasonable
belief from the whistlebiower that the disclosure was ‘necessary’ to expose
misconduct.
Lastly, the fundamental value of whistleblower protection is in prohibiting
any form of retaliation, setting legal assistance and imposing sanctions for any
form ofretaliation. In these respects, the Directive provides very high standards
of protection by prohibiting any act or omission that causes detriment, whether
direct, indirect, threatened, taken, recommended or even tolerated retaliations,
lhe Directive imposes criminal, civil or administrative penalties on those who
engage in retaliation. Punishment for biowing the whistle is limited to knowingly
providing false statements. In this regard, the burden of proof is also an important
element. Namely, the burden of proof is met by whistleblowers if tliey prove
that they engaged in protected activity and that they then suffered a detriment.
lhe burden ofproofthen shifts to the employer. Ifthe empioyer engages in any
act that constitutes a form of retaliatíon ia light of the definitions provided ia
the Directive, such conduct would be prohibited. lhe whistleblower only needs
to show that there was reporting and retaliation without the law creating an
additional burden of demonstrating the causation between the reporting and
retal iation. lhe Directive also stipulates legal assistance as well as covering fees
and costs for the whistleblowers who prevail in their cases.
In light of these eiaborate five eiements, it becomes ciear that the Directive
indeed sets out a broad regime of protections, taking into account lessons
learned from other laws and gaps ia systems that often proved detrimental for
the whistleblowers. In some of the most important aspects of protection, the
Directive aims to draw an adequate balance between ensuring the interests of
whistleblowers, which in turn means ensuring that disclosures in the pubiic
Intersentia 101
 Vigjilenca Abazi
interest are soiidly protected, with the requirements of not leading to disruptions
in the processes and work of organisations to the extent that is detrimental rather
than effectíve for accountability. Yet, the regime maintains a gap ofits own by not
encompassing national securitywhistleblowers. In the following sub-section, we
turn to examine more ciosely why national security whistlebiowing is exciuded
from the Dírective and what implications arise from such a gap in protection.
2.3. THE GAP: NATIONAL SECURITY WHISTLEBLOWING
The EU lias a wide array of executive powers in security policies and is generally
regarded as a relevant security actor.3’ Yet, as per primary law, Member States
have aimed to be clear that national security is a nationai competence.32 As
the Directive refers to protecting whistieblowers when their disclosures reveal
breaches of ‘EU law it hence excludes from its scope national security outside the
EU’s authority Excluding national security from protections of whistleblowers is
comparativeiy also the case even in national context where delegation ofpowers
is not an issue.33 Article 3 of the Directive specifies that whistleblower protection
does not affect the responsibility of Member States to ensure nationai security
and their power to protect their essential security interests. It also specifically
refers to procurement ruies involving defence or security aspects. In addition to
excluding whistleblower protection due to national security iaws, the Directive
also excludes EU law and national law that would affect classified documents,
a legal category of restricting information that generally pertains to national
security and international relations.
lhe nature of national security and its reliance on the rigid system of official
secrets and ciassified documents requires a special set of principies in how such
sensitive information would be disclosed. Yet, this is not merely a procedural
issue of disclosure, rather there is an inherent contradiction in authorising
protection to government employees who undertake a legal obiigation not
See Titie V TfEU The EU has legislative competences m establishing, inter alia, uniform asylum
system, uniform status for third-country nationals, mutual recognition and enforcement of
judgments, setting minimum rules for and combating terrorism, human trafficldng, fflicit
drug trafficking, money laundering, corruption, counterfeiting, and organised crime. See
M. K. DAvis CRoas, Security Integration in furope: How Knowledge-Based Networks are
Transfonning the European Union, University of Michigan Press, USA 2011.
32 Article 4(2) TEU. See Article 72 TfEU, where similarly the Member States aim to make sure
that their prerogatives are safeguarded, such as in the maintenance of law and order. See
V. Aaz;, Officiat Secreta and Oversight in the Furopean Union, Oxford University Press,
Oxford 2019, specifically chapter one, section one ‘The Evolving Architecture of the European
Union: growing powers in security’, pp. 14—24.
‘ for example in ffie US, the Whistleblowing Act covers govemment officials and provides
procedures for reporting without including national security under its remit.
102 Intersentia
Whisüeblowing m Europe
to disclose any ciassified documents or official secrets with a clear system of
sanctions and enforcement in case unauthorised disclosure takes place.34
Hence, by contrast with ieaks, which are said to be a feature in the system of
government information including in the field of security,35 whistleblowing in
nationai security in practice is almost always met with dire implications for the
whistiebiower.
Whilst excluding national security whistleblowing is comprehensible from
the perspective of limited EU competences in national security, the question
nevertheiess remains what implications arise for whistleblowers and disclosure
due to this gap in legal protection. for exampie, if a certain issue is intertwined
both with elements of EU Iaw outside national security but may also touch upon
state secrets in the realm of national security, it is unclear whether European
courts in those circumstances wouid allow the application of the Directive.
Especiaily in the ‘hard’ cases, i.e. when severe abuses of power are at stake,
it is not inconceivable that governments would try to invoke state secrets
prerogatives and prevent possible disclosures precisely by making it harder to
disclose information or deemed it in breach of national security and official
secrets ruies. If whistleblowers would nevertheless disciose information, it
would technically be a violation of state secrets norms even if the disclosures
lead to significant public interest information. Another serlous concern is the
exciusion of whistleblower protection if it conflicts with protection of classified
information at the EU levei. Ciassified documents categories are a broadly
defined in the EU, the applicable rules to official secrets are fragmented and in
practice a variety of interests, beyond strictly those of security, are encompassed
under ciassified information.36
Uniike these restrictions in the EU regime of protecting whistieblowers,
the ECtHR deals with whistleblowing as a category of freedom of expression
and appiies standards of review to determine whether the individual meets the
This aspect is a growing debate within issues of national security whistleblowing and some
scholars defend the possibility of national security whistleblowers with the idea that they
have a duty to constitutional rules that is higher than a particular duty to government/
executive rules on protectÍng classified information. See e.g. A.). KASNER, ‘National Security
Leaks and Constitutional Duty’, (2015) 67 Stanford Law Review, pp. 241—283.
E.g. R. SAGAR, Secrecy and Leaks: lhe Dilemrna of State Secrecy, Princeton University
Press, USA 2013; D.E. PozeN. ‘lhe Leaky Leviathan: Why the Government Condemns and
Condones Unlawful Disclosures ofInformation(2O13) 127 Harvard LawReview, p. 512.
See V. ABAzI, Official Secreta and Oversight in the European Union, Oxford University Press,
Oxford 2019; in a series of interviews with practitioners, Abazi shows that offlcial secrets
are not always strictly used to protect security information. See also a series of articles by
D. CuRTIN mapping the concern regarding classified documenta in the EU, ‘Judging
EU Secrecy (2012) Cahiers de Droit Européen, p. 457; ‘Official Secreta and the Negotiation
of International Agrecments: Is the EU Executive Unbound?’, (2013) 50 Common Market
Law Review, p. 423; and ‘Overseeing Secreta in the EU: A Democratic Perspective (2014) 52
Journal of Cornmon Market Studies, p. 684.
Intersentia 103
 Vigjilenca Abazi
threshoid of protections without default ex ante exclusion of national security.
As some of the dísclosures can also be made to the public directly, under
circumstances discussed below, it is particuiarly relevant to analyse the case law
of ECtHR and how the Court may be a better remedy in cases of disclosure of
national security information.
3. ‘WHISTLEBLOWER SPEECH’: ECTHR PRINCIPLES
The case law of the ECtHR interprets whistiebiowing as a form of freedom of
expression protected under Article 10 of the European Convention on Human
Rights (ECHR), to which ali EU countries are parties. Article 10 ECHR protects
freedom of expression and is not a specific whistieblower protection scheme.
However, as whistleblowing is essentíally the freedom to speak up and to disclose
information, it is as such a manifestation of freedom of expression, which the
ECtHR has recognised as explained beiow.
The most notable case of the ECtHR ín which it developed criteria for
evaluation whether ‘whistieblowing speech’ wouid be protected is Guja v
Motdova.37 Mr Guja was an official in the Prosecutor General Office who
disclosed reievant information to the press pertaining to criminal proceedings
and revealed corruption and pressure on the Prosecutor’s Office to discontinue
any investigation into police officers initialiy suspected to have been invoived
in iliegal detention and iii treatment of prisoners. In addressing this case, the
ECtHR established six principies in accordance with which the Court would
make the assessment whether protection of freedom of speech is warranted.
Namely, the ECtHR examines the following aspects:
(i) whether the whistleblower had alternative channels to disclose the
information before making it public,
ECtHR, Guja v Moldova, no 14277/04, 12.02.2008. Mthough Mr Guja had a favourable
judgment by the ECtHR, the national authorities had not acted upon it. Mr Guja was accepted
to bis work and tben subsequentiy fired again. In a judgment delivered in February 2018,
the ECtHR found that thc Govemment of Moldova had never intended truly to reinstate
the applicant and tbat his second dismissal had been a continued retributory measure in
response to bis whistleblowing of 2003. The ECtHR also found ffiat the domestic courts had
contributed to the violation of the applicant’s rights by refusing to examine bis allegations
and evidence, and by ignoring tbe principies set out in the earlier Guja case. See ECtHR,
Guja v Motdova, no 1085/10 (no 2), 27.02.2018. On other cases relating to wbistlebiowing as
theypertain to freedom of expression under Articie 10 and refer to issues ofwhistleblowing:
ECtHR, Marchenko v Ukraine, no 4063/04, 19.02.2009; ECtHR, Kudeshkina v Russia,
no 29492/05, 26.02.2009; ECtHR, Heinisch v Germany, no 28274/08, 21.07.2011; ECtHR,
Sosinowska v Poland, no 10247/09, 18.10.2011, ECtHR, Bucur and Toma v Romania,
no 40238/02,08.01.2013, ECtHR, Matúz v Hungary, no 73571/10,21.10.2014; ECtHR, Pasko v
Russia, no 69519/01, 22.10.2009.
104 Intersentia
Whistieblowing in Europe
(ii) whether there was a pubiic interest in disciosing the information, and this
includes checking the
(iii) authenticity of the disclosed information,
(iv) the detriment to the ernployer,
(v) whether the whistlebiower acted in good faith and
(vi) the proportionality ofthe imposed penalty.
it is noteworthy that the ECtHR takes a hoiistic approach and examines the
overail context and the sensitivities of the case and hence while it assesses each
specific principie, the ECtHR does not deny protection to the whistleblower if a
particular standard is not fully rnet.
The Guja ruling is an acknowledgrnent that heavy sanctions against pubiic
officials are not acceptable or adequate when whistieblowing is driven by the
public interest. It is also a protection by the ECtHR that harsh punishments
will have a chilling effect and dissuade other employees from exercising their
freedom of expression.
Before examining each standard of protection as developed by the ECtHR,
it is noteworthy that the scope of case law by the Court is wide in the sense that
cases are not limited in certain poiicy fieids, such as is the approach of the EU
Directive. Since the case law is based on Articte 10 on protection of freedom
of expression, as such the Court has noted that freedom of expression applies
across the board, including to governrnent empIoyees, indeed as was also the
case with Mr Guja. The ECtHR makes an assessment of measuring the interests
of the employee to exercise freedom of expression with the employers’ interest
in Ioyalty from employees.
Reportíng channels are the key issue for the functionality of the whistleblower
regime. In this sense, the ECtHR maintains two tiers for disclosing information.
The whistlebiower may disciose the information to his or her superior or other
competem authority or body in the first place. Unifice the EU Directive, the
ECtHR does not draw lines between interna! and external reporting as the former
only reporting with the ernpioyer and the iatter to an external independent body.
for the Court these are both in a sense considered as a first tier and the second
tier pubiic disclosure. ‘lhe ECtHR maintains internal reporting to the employer
as weIl as externai reporting to other competem authority or body at the sarne
tier of reporting without invoking a hierarchy between them as the wording ‘or’
clearly shows. The second tier of disclosure, or what the ECtHR refers to as the
‘last resort is reporting to the public. The whistlebiower may report publicly
when the first tier of reporting is ‘ciearly impracticaE The latter wording is more
developed in the Directive as it provides circumstances under which reporting
internally or externally is not feasible or advisable.
An important element for the ECtHR is whether the disclosure is indeed in the
public interest. Hence, whulst an individual has a general freedom ofexpression,
the exercise of this freedom in the context of disciosure of information especially
Intersentia 105
 WhisUeblowing in Europe
Vigjilenca Abazi

an element of considered to be the heaviest sanction possible and could potentially discourage
when the latter is done in breach of confidentiality, should have
for ‘pubiic interest others from reporting misconduct in general, whicli is against the cliilling effect
public interest. The ECtHR does not provide a definition
circumstances that the Court aims to protect when it comes to freedom ofexpression.
Rather, in determining whether an issue falis under pubiic interest,
to have a Lastly, whereas the Directive following best practice standards does not aim
of each specific case are examined but the notion itself it is viewed the motive of the whistieblower, rather as was explained above, the
this element lias not been to examine
broad scope. In the cases thus far before the ECtHR,
public interest such Directive has a threshold of reasonable belief that tlie information is true at tlie
contested since ali cases have reveaied information that is of
pubiic services. time of the reporting and the Directive aims to disincentivise false reporting by
as havíng to do with administration ofjustice, corruption, and
out a progressive protection and having penalties for knowingly providing false statements. In Guja v Moldova,
It was expiained that the Directive sets
r to meet in terms the Court held that an ‘act motivated by a personal advantage, including
provides a best practice for the threshold of the whistieblowe
wrongdoing lias pecuniary gain, would not justify a particularly strong levei of protection’ Yet
of whether the information is true and whether the reported
enforcing it should be highuiglited that tlie Court does not exclude by default cases from
occurred. Since the Directive sees whistlebiowing mostIy as a tool of
easier for a whistleblowe r to undertake protection if they were motivated by personal grievance or pecuniary gain. As
EU law, this approach also means that it is
information was mentioned above, the Court examines each criterion, although it takes a
such reporting without fearing repercussions ín case there is any
has a different holistic approach and balances overall the circumstances of the case. Hence, this
the person does not luow. The ECtHR case iaw on this matter
whether statement sliould only be understood to mean that tlie ECtHR would not justify
approach. The person who chooses to make the disciosure should verify
reliabie. Yet, the Court is not rigid a ‘particularly strong levei’ of protection, but at the same time, tlie ECtHR has
the information disciosed is accurate and
individual can have only not refused protection to whistleblowers under Article 10 on tlie grounds of
in this aspect in the sense that it understands the
hence personal motivation.
limited powers and resources to ensure the entire validity of information,
is permitted by
the Court oniy asks that the individual does to the extent that
and hence leaves more space for the
the circumstances in the particular case,
fuiiy the authenticity 4. INSTITUTIONAL ACCOUNTABILITY
individual to make the disclosure without having to prove
of the information. In fact, none of the involved parties
questioned the AND FREEDOM OF PRESS
entailed a
authenticity of the information and therefore this criterion has not
Whistleblowing most often emerges in a context when other checks and balances
burden to ‘prove’ the authenticíty of the information.
Recognising the importance of maintaining confidence in public authorities, have failed. This is particularly true in public administrations as there are many
causes such ínstitutional mechanisms of accountability that are meant to either detect or
the ECtHR evaluates whether the disclosure of the information
that address abuses of power, corruption, and any other wrongdoing. For example,
damage that outweighs the public interest in disciosure. Yet, in the cases
to know the information has a pariiamentary oversight committee is meant to keep the executive in check or
the Court lias reviewed, the interest of the public
the ECtHR an Ombudsman is institutionally set up to address maladministration. However,
been consistently given priority. For example, in Guja v Motdova,
decíded tliat the public interest in having information about the pressure
and due to a variety of factors, these ínstitutional checks may not function adequately
outweighed tlie interest in maintaining and hence may fail to capture the wrongdoings by the government or public
wrongdoings of tlie Prosecutor’s Office
public confidence in the institution. In cases involving information
that administration. In such a situation, whistleblowing becomes the additíonal
Toma and measure in the toolkit ofaccountability. Indeed, the EU Directive acknowledges
reveals illegal activities within inteiligence agencies, such as in
Kudeshkina this aspect ofwhistleblowing as it notes fts role in individuais reporting breaches
Bucur v Romania, ffie interest of the pubiic to be informed prevails. In
corruption and instances of pressure of EU iaw.38 The nature ofwhistleblowing is complex, however, and it should not
v Russia, il was decided that widespread
a democratic society be bracketed as mereiy au accountabuiity tool or as mechanism of enforcement.
being put on judges should be open to free debate in
employer The facet of whistleblowing as freedom of expression as recognised by the
Related to this issue is the Court’s consideration ofthe penalty tliat the
offers a
might impose for the disciosure made. By contrast to the Directive tliat
wide and significant protection of ali ldnd of retaliations for whistleblowe rs, the
r would endure
ECtHR does not per se limit ali consequences tliat a whistleblowe
whether
by the employer due to the disclosures made. The ECtHR considers Article 1 Directive provides: ‘lhe purpose of this Directive is to enhance the enforcement
chilling of Union law and policies in specific areas by laying down common minimum standards
the sanction had a negative repercussion on the applicant’s career and providing for a high levei of protection of persons reportíng on breaches
for reporting misconduct is
effect on other employees. Dismissing an employee
intersentia 107
hitersentia
106
 Vigjilenca Abazi
ECtHR is also relevant and indeed seen from such a perspective it becomes clear
how important it is to acknowledge protection of whistleblowers not merely as
enforcers of law, but as individuais who exercise their fundamental freedom of
expression. Understanding the compound nature of whistleblowing hence is
important for ensuring its proper role in a democratic society and providing
relevant protections.
Whistleblowing also represents us with a challenge: whilst it is a tool to
recuperate accountability or to feed into investigative journalism as another
branch of power checks, it cannot fully function if institutional accountabiity and
freedom of press are deeply undermined. To start with instftutional accountabilityç
whistieblowing only triggers the accountability, yet its realisation as a process
and the consequences of actually holding power to account are meant to take
piace through established check and balances. Whistleblowing’s purpose is to
‘trigger’ institutional oversight tools. It does not at ali aim to replace institutional
oversight and in fact its function is not to take over any investigation. Rather, it
provides unique insiders’ access to information in being able to identífy abuse of
power, especially since it is veiled in secrecy, in a manner than no other tool of
oversight, whether executive or otherwise, is able to achieve. In instances when
abuse of power or erosion of rule of law runs deep through the entire system of
checks and balances it becomes very questionable whether blowing the whistle
would iead to this process of accountability we rely on. This is not to say that
it would not serve any role as it may be conceivable that a disclosure of severe
abuse of power would rather trigger the citizens directly to protest and use other
means of democracy to overthrow a corrupt regime. Yet, the iatter too implies
a certain level of legitimacy and respect for democratic processes as one cannot
imagine a regime change in full as a result ofwhistleblowing no matter how much
support such a disclosure would receive by citizens. The second aspect is that of
journalism. On a daily basis journalists rely on ‘hints’ or inside information in
order to map and reveai decision-maldng processes, how power is exercised and
how the reievant actors behave. Journaiists also rely on whistieblowers, whether
anonymous or those who reveal their identity, in order to gain access in a much
more deep and systematic manner in identifying possible abuses of power or
wrongdoing. However, if freedom of press is severely undermined, ifjournalists
work under threats and with pressure or in an environment of no free press,
this role of whistleblowing is also diminished. In other words, whistleblowing
is contingent upon a generally functioning system of institutional checks and
a society where press freedom is not fully undermined. Without these two
conditions, regardless of the legal protections stipulated for whistleblowers we
can see how there would either be a chilling effect to actually reporting or that
even if reporting were to take piace, its effect would be minimal and could in
turn oniy lead to an increase of limitations of freedom of expression. Whilst
these two important aspects in how whistieblowing may function in practice
might seem straightforward, sometimes in the narratives for whistleblowing we
108 Intersentía
Whistleblowing in Europe
seem to rely too heavily on it as a tool that not only facilitates but fixes the
wrongdoings or abuses of power. It is hence worthwhiie to reiterate that the
power of whistleblowing in practice to deliver its promise, whether seen as tool
of law enforcement or as manifestation of freedom of expression, is dependent
precisely upon what it tries to trigger: institutional accountability and freedom
of press.
5. CONCLUSION
This contribution discussed whistleblowing in Europe, focusing on the
new Directive in the EU, both mapping the background and process of its
development as well as assessing the legal standards of protection it provides. The
contribution showed that in light of the Directive, whistieblowing is understood
as a mechanism of enforcing EU law directiy by persons both in the public
and private sector. lhe contribution also analysed the case law of the ECtHR
that approaches whistleblowing from the protection of freedom of expression.
It showed how the Court determines whether whistlebiowing is justified and
therefore protected under Article 10 of the ECHR.
In its analysis, the contríbution argued that the standards provided in the
EU match global best practices, especially on issues which have been otherwise
much contested during the process of negotiating the Directive. Current
protections, if implemented in their fuil word and spirit, by EU Member States
would lead to highly advanced protections for whistleblowers. However, the
contribution also argued that legal protections are only part of the conditions
necessary for whistleblowing to realise its purpose and for whistleblowers to
be protected. Equally important are the elements of institutional accountability
and freedom of press as two important factors in both how whistleblowing takes
place and also what it is able to deliver in terms of holding power to account in
cases of breaches of law, abuses of power, wrongdoing and other ways in which
democratic checks and balances are put under pressure. For whistleblowing to
truly work, institutional checks and balances and freedom of press are conditio
sitie qua non.
Intersentia 109