LABOUR LAW

AND SOCIAL RIGHTS

IN EUROPE
The Jurisprudence of Internatíonal Courts

Selected Judgements

EDITEDBY
Mociej taga
Stefano Beilomo
Nicola Gundt
4 José Maria Miranda Boto

Gdansk University Press

Gdansk 2017
Reviewer
dr hab. Lukasz Pisarczyk, prof. UW

Proofreading
David Malcoim TABLE OF CONTENTS

Technical Editor
Maria Kosznik

Cover and Títie Pages Design PREFACE. The European labour law young scholars’ section
Karolma Zarychta (Stefano Beliomo, José María Miranda Boto) 9

Typesetting and Page Layout INTRODUCTION (Maciej Laga, Nícola Gundt) 17

Michal Janczewski CHAPTER 1. Employee-lllce worker: Competitive entrepreneur
or submissive employee? Reflections on dEU, C-413/13,
financial support comes from: FNV Kunsten Informatie (Eva Grosheíde, Beryl ter Haar) 21
Università di Perugia, Dipartímento di Giurisprudenza
Asociacién Espaflola de Derecho dei Trabajo y dela Seguridad Social 1. Introduction 21
Polska Sekcja Miçdzynarodowego Stowarzyszenia Prawa Pracy 1 Zabezpieczenia Spolecznego 2. Employee-lilce worker 23
Wydziaf Prawa i Administracji Uniwersytetu Gdafiskiego 3. Case C-413/13 and the ruling of the Gerechtshof ‘s-Gravenhage 25
4. Reflections on the notion of (false) self-employed 32
A 5. Reflectíon of the meaning of the CJEU ruling
.
E DER2O1 5 66522 R (AEI/FEDER, UE)
LA ADARTACION DEI ORDENAUIENTO
for the Netherlands (conclusions) 39
Z fl ESPAOL A LA JURISPRUDENCIA SOCIAL
DEI TRIBUNAL DE JUSTICIA
1 CHAPTER 2. Statutory minimum wage and subordination.
. ‘ S POFEDER2O14-2020

2— s Unlón Europea Unho flOfloIro do ftor EoropR ,M5tEAc14 fNVKunsten Informatie judgment and beyond (CJEU, C-413113)
(Massimiiano Delfino) 41
1. Two cases, one soul. fNVKunsten Informatie, Consigtio nazionaie

iJ
UNI WERSYTET GDANSKI
dei geologi and the issue of statutory minimum wage
2. The FNVKunsten Informatie judgment and recent
Italian legislation on ‘hetero-organized’ employment relationshíps
3. The problem of’true’ self-employed service providers.
41

44

© Copyright by Uniwersytet Gdaúski What is the influence of EU case law on the Italian legal order? 47
Wydawnictwo Uniwersytetu Gdaúskiego
CHAPTER 3. lhe ‘Fonnshíp’ judgment or the curious incident of
ISBN 978-83-7865-655-5 the dog in the night-time (CJEU, C-83113)

1
(Yolanda Maneiro Vázquez, José María Míranda Boto) 49
Gdaíisk University Press 1. Introduction: Trouble for social Europe arríves by boat 49
ul. Armii Krajowej 119/121, 81-824 Sopot 2. Working on board and the freedom to provide services:
telifax 58 523 11 37, tel. 725 991 206
The legitimation of flags of convenience 50
e-mau: wydawníctwo@ug.edu.pi
wwwwyd.ug.edu.pl
3. The limits ofthe preliminary ruling 54
4. Was there any hope for a revision of Lavai? 56
Online bookstore: wwwidw.ug.edu.pl 5. A small conclusion 59

1
1
 Chapter 10
156
purposes. In fact, we cannot ignore ffie fact ffiat sometimes calis to one’s part
ner or children are necessary It is reasonable ffiat during working time, but
especially during break time, one has to deal wiffi doctors, authorities or other
instilutions the office hours of which are identical with those of the regular
worldng day, and employees simply have no other choice. It can also be as
serted that blog postings made outside of his or her employment are part of
employee freedom of expression, which is a right that can be exercised freely
by an individual unless he or she makes false statements with the intenfion of
harming the employer.
The slowly increasing volume of case law in this area iiustrates ffie way
in which human rights, data privacy, whistleblowing, and discrimination leg
islation impacts this issue. While employers may use social media to source
information about employees, they must remam mindful of any parameters
imposed by Czech, Polish, Romanian and Slovak laws. In these harsh times,
employers are best advised to put in place clear social media policies, ensure
that employees are made aware of ffiese policies (to lower their reasonable ex
pectations) and obtain written consent from employees to any monitoring. To
ffie contrary, ffiey should never request job-seekers or employees to disclose
user names and passwords in order to log in to private social media accounts
in the presence of their (prospective) employer.
CHAPTER 11
WHISTLEBLQWING AND THE CASE OF
HEINISCH V$ GERMANY (ECHR, 28274/08):
THE POLISH AND PORTUGUESE PERSPECTIVES
David Carvalho Martins, Maciej Laga
ABSTRACT
Whistteblowers are a group of employees that isparticularly endangered in the workplace.
lhe case ofHeinish vs Germany is a representative exampte ofsuch hazards. Their speqfic
situation lias been perceived in international and Fumpean legal acts, but is stitt insuf
ficiently recognized by legal systems in the majority of European countries. Authors de
scribe international and European regulation on whistleblower protection with regard to
fundamental human rights and European soft law standards. Converse the regulation of
wishlebtowingprocedures could be a good opportunity to balance the interests ofemployees
with those ofthe employer and also thepublic interest. Therefore, the background ofPotish
and Portuguese regutations in thisfield are presented. This teads to interesting conclusions
regarding effectivity of international and European law ou whistleblowerprotection.
1. INTRODUCTION’
Whistleblowers are former or current members of (e.g., employees, service
providers, consultants and trainees), or insiders at, prívate or public organisa
tions (e.g., companies, associations, foundations) who may require support
Abbreviatíons: Charter (Revised European Social Charter), Convention (Enropean
Conventíon for the Protection ofHuman Rights and Fundamental Freedoms), ECHR (Eu
ropean Court of Human Rights), PSC (Portuguese Supreme Court), ECA (Évora Court of
Appeal), 1 Directive on ToEU (Council Directiye 7711$7/EEC of 14 February 1977), II Di
rective on ToEU (Councjl Dírective 98150/EC of 29 June 199$), III Dfrective on ToEU
(Council Directive 2001/23/EC of 12 March 2001), AJJ (Assocjation of Young Labour
15$ Chapter 11
or protection against reprisais for having disclosed information about prac
tices, acts, behaviours or wrongdoings of coileagues, immediate superiors,
lime managers or employers, including their legal representatives, ffiat can be
considered as immoral, uneffiical, dangerous, irregular, ilegal or fflegitimate.2
Bearing in mmd that they are internal stakeholders with deep knowledge of
organisations and have access to relevant information, it is not surprising that
‘(...) whistleblowing is now established as one of the most important pro
cesses ifnot the single most important process by which governments and
—
—
corporations are kept accountable to the societies they are meant to serve and
service2 In fact, whistleblowers can trigger institutional, regulatory or crimi
nal responses to dealing with reported internal or external practices, acts, be
haviours or wrongdoings.4 In addition to the risk of reprisais, whistleblowers
must contend with the negative historical meaning of their activity and can
be regarded as disloyal either to ffieir employers or famifies, coileagues or so
ciety5 Taking this into account, we can raise the question of whether the law
should forbid or allow whistleblowing. If allowed, should the law take a broad
Lawyers, Portugal), APODIT (Portuguese Association ofLabour Law), Brief(Employment
Law Brief HR), CBA (coliective bargaining agreement), CEJ (Centre for Judicial Studies),
Charter (Charter of fundamental Rights ofthe European Union), CJ (Colectânea dejuris
prudência), CJUE (Court of Justice of the European Union), CLRI (coliective labour regula
tion instrument, such as CBA, Accessïon Agreement to a CBA, Arbitral Award in Volun
tary Arbitration, Extension Ordinance, Ordinance for Minimum Conditions and Arbitral
Award in CompulsoryArbitration), CPR (Constitution ofthe Portuguese Republic), ECHR
(European Court of Human Rights), EAT (Employment Appeal Tribunal, United Kkig
dom), LCA (Lisbon Court ofAppeal), MoU (Memorandum of Understanding on Specific
Economic Policy Conditionality) MS (Member State), MSs (Member States), NZA (Neue
Zeitschrftfür Arbeitsrecht), PCC (Portuguese Constitutional Court), PCCode (Portuguese
Civil Code), PLC (Portuguese Labour Code), QL (Questões Laborais), TEU (Treaty on Eu
ropean Union), ToEU (transfer of an economic unity), ToEUR (Transfer of an Economic
Unity Regulafion), TFEU (Treaty on the funcUoning of the European Union), UDHR
(Universal Declaration of Human Rights).
2
To bufld an accurate and precise definition of whistleblower is a challenging task
and it normally has a pejorative meaning (J.M. Vieira Gomes, “Um direito de alerta cívico
do trabalhador subordinado? (ou a proteção laboral do whist1eb1ower),’ Revista de Direito
e Estudos Sociais 2014, no. 1—4, pp. 13 1—133.
International Handbook on Whistleblowing Research, A.J. Brown et ai. (ed.), Chel
tenham 2014, p. 1.
Ibidem. p. 5.
Ibidem, p. 6.
Whistleblowing and the case of Heinisch vs Germany... 159
er or a narrower approach? The case of Heinish vs Germany (hereinafter the
Case)6 is a representative example of lhese hazards.7 Their specific situation
has been perceived in international and European legal acts, but is stffl insuffi
ciently recognízed by the legal systems in lhe majority of European countries.
The authors describe these international and European regulation on whistle
blower protection in reference to fundamental rights. Therefore, they provide
a background for the Polish and Portuguese perspectives in this field, which
leads to some interesting conclusions regarding lhe effectivity of international
and European laws on whistleblower protection.
2. THE CASE
In 2011, the ECHR issued its judgment about lhe relation between the right lo
freedom of expression [Article 10(1) of lhe Conventionj and whistleblowing.
further to Article 34, para. 1°, oflhe Convention, ‘anyperson, nongovernmentai
organization or group ofindividuals claiming to be lhe victim of a violation by
one of the High Contracting Parties of lhe rights set forlh in lhe Convention or
lhe Protocols thereto’ may deliver an application form to lhe ECHR. Besides, lhe
Member States ‘undertake 1101 to hinder in any way lhe effective exercise ofthis
ríght’ (Article 34, para. 2°, of lhe Convention).
On 9 June 2008, Ms Brigitte Heinisch, a German national, lodged
a claim with the ECHR against the Federal Republic of Germany based on
the infringement of her right to freedom of expression. She was dismissed
without notice from her employment as a geriatric nurse, because she had
brought a criminal complaínt against her employer alleging deficiencies in
lhe institutional care provided. The employer was Vivantes Netzwerk für
Gesundheit GmbH (hereinafter Vivantes), a company ma)orfty-owned by
6
ECHR, 21 July 2011, 28274/08, Heinisch vs Germany. ECHR cases are available at
wwwhudoc.echr.coe.int (access: 20.06.2016).
See also ECHR, 21 January 1999, 29183/95, Fressoz and Roire vs france para. 45
(freedom of expression also includes the information and ideas that can offend, shock or
disturb, provided that such data concerns topics of public interest, without prejudice the
need to take ínto account the protection ofthe reputation ofothers); ECHR, 30 September
2010, 28369/07, Vesna Balenovió vs Croatia (interference complained of was not dispro
portionate); ECHR, 13 January 2015, 7904012, Rubins vs Latvia paras. 75—93 (regarding
University staff); ECHR, 19 April 2016, 12138/08, Aurelian Oprea vs Romania paras. 55—78
(press conference about corruption in Romanian uníversities).
 Chapter 11 1 Whistleblowing and the case of Heinisch vs Germany.
160 161
a claim against the company before the Berlin Labour Court and contacted
the Land of Berlin, which provided health care, geriatric care and assistance
friends and the trade union. At the end of the month, they issued a leaflet i)
to the elderly.
accusing Vivantes ofintirnidating workers, ii) demanding the revocation ofthe
Since January 2002, Ms Heinisch had been working in a geriatric nursing
dismissal, lii) explaining that Ms Heinisch filed a criminal complaint which
home operated by ffie employer, where the patients were partly bedridden, dis
did not give rise to criminal investigation and was dismissed on account ofher
orientated and generally dependent on special assistance. In the sarne year, the
fflness and iv) ffie dismissal ‘was a political disciplinary measure taken in or
Medical Review Board of ffie Health Insurance fund (hereinafter MDK) ‘estab
der to gag employees’ The leaflet was distributed in the company and Vivantes
lished serious shortcomings in the daily care’because of staff shortages. Between
gained knowledge ofthe criminal complaint. The cornpany notified the worker
January 2003 and October 2004, the workers including Ms Heínisch regu
—
—

to make a statement about the leaflet and she refused. Subsequently, Vivantes
larly indicated to rnanagement ffiat they were overburdened on account ofstaff
notified the works coundfl about the intention to dismjss her without notice,
shortages and therefore had difficulties carrying out ffieir duties (e.g., deficien
but ffiey did not receive a favourable opinion regarding the dismissal. Notwith
cies ín the care provided, services not properly documented). In May 2003, Ms
standing, the company dismjssed Ms Heinisch wiffiout notice or, alternatively,
Heinisch reported that ‘she was no longer in a position to assume responsibffity
by the end of the previous period ofnotice on suspicion of having initiated ffie
for the shortcomings in the care resulting from staff shortages’ from May 2003
production and dissemination of the leaflet. Later, the dismissal was reported
onwards, Ms Heinisch ftequently feil ifi and was sometimes unable to work due
in a new leaflet and the media (IV and newspapers) gave details about it. Upon
to overworldng. In November of ffiat year, MDK ‘established serious shortcom
the worker’s request, the Berlin Public Prosecutors Office resumed the pre
ings in the care provided, on grounds of, inter alia, staff shortages, inadequate
liminary investigations proceedings against the company. Ms Heinisch brought
standards and unsatisfactory care as well as inadequate documentation of care,
a claim against the dismissal without notice before ffie Berlin Labour Court. In
and accordingly ffireatened to terminate ffie service agreement wfth’ Vivantes.
April 2005, Vivantes issued a further notice of dismissaL In May, the worker
Ms Heinisch delivered other notifications to her superiors about the situation
was heard as a witness by the Berlin Public Prosecutor’s Office, but ffie prelimi
and feil ifi again in October 2004. In November 2004, her lawyer sent a letter to
nary proceedings were again discontinued.
Vivantes where he i) mentioned that the patients’ basic hygienic care could no
In August 2005, the Berlim Labour Court held that the dismissal without no
longer be guaranteed as a result of the lack of staff, ii) requested information on
tice was unlawful, because the content of the leaflet was covered by ffie right to
how the company will avoid criminal responsibffity including for the work
—

freedom of expression and did not breach any labour duty In fact: A1though it
ers and about the proper care to be provided to ffie patients and iii) told ffiem
—

was polemical, it had been based on objective grounds and had not upset the
ffiat only then could they avoid a criminal complaint and a public discussion
«working climate» in ffie nursing home.’ However, ffie Berlin Labour Court of
of ffie situation. Just a couple of days after such ffiis, MDK visited once more
Appeal held that the worker violated the duty of loyalty towards her employer
the premises without warning. Vivantes declined the accusations. In December
and declared ffie dismissal lawfiil, taking into account that i) the worker had
2004, the lawyer ffled a criminal complaint against the company for aggravated
based the criminal complaint on facts ffiat she could not prove, ii) ffie criminal
fraud based on ffie following: i) by reason of the lack of staff and the inadequate
complaint was a disproportionate reaction, in particular since Ms Heinisch ‘had
standards, Vivantes failed to provide the services advertised and was putting
never attempted to have her allegation of fraud examined internally and since,
patients at risk; ii) the company tried to hide the problems and asked the work
moreover, she had intended to put undue pressure on her employer by provoking
ers to falsify records of services rendered; iii) the staff was overworked; and
a public discussion of the issue’ and lii) she could have waited for the outcome of
iv) intimidation of workers. He also justified the complaint to avoid criminal
ffie investigation carried out by MDK. Neiffier the federal Labour Court or ffie
responsibiíty for Ms Heinisch, notably after several claims without any success.
federal Constitutional Court have admitted any appeal presented by ffie worker.8
In January 2005, the Berlin Public Prosecutor’s Office discontinued the prelimi
nary investigations against the company. Just some days after, Ms Heinisch was
8ECHR, 21 July 2011,28274/08, Heinisch vs Germany, paras. 1-26.
dismissed with a period of notice because she was repeatedly 111. She brought
162 Chapter 11
3. THE ANSWER FROM THE ECHR
The ECHR answered ffie following questions: i) Was ffiere interference wiffi
a right to freedom of expression?; ii) If so, was the interference prescribed by
law and was the pursuit a legitímate aim?; and iii) Was the interference neces
sary in a democratic society?
The first question was answered positively, as for the ECHR, the parties
accepted ffiat i) the criminal complained ffled by the worker against the em
ployer had to be regarded as whistleblowing on the alleged unlawful behav
iour of ffie employer falling wiffiin the scope of Article 10 of the Convention;
ii) ffie dismissal and ffie court decisíons were related to the right to freedom
of expression. Therefore, ffie dismissal based on her criminal complaint con
stituted an ínterference with the right to freedom of expression [Article 10(1)
of the Convention] .
Regarding the second question, the ECHR considered that ‘it is foreseeable
for an employee ffiat a criminal complaint against lis or her employer may in
principie constitute a compelling ground for dismissal wiffiout notice under
the said provision’ Besides ‘it pursued the legitimate aim of protecting the
reputation and rights of others, namely, the business reputation and interests
ofVivantes.’t° Even though the domestic legíslation allows more ffian one un
derstanding, the interference was deemed approved by law. In offier words,
ffie restriction of the right to freedom of expression was based on a lawfiil
reason and permitted by law.
The answer to the third question was more controversial. First, commu
nication wiffi the public is ffie employee’s last resort. In the une with previous
ruiing, the ECHR considered that the requirement of necessity as foreseen
in Article 10, para. 2° of the Convention, ‘implies the existence of a ‘pressing
social need which gives to the Contracting States a certain margin of ap
preciation in assessing whether such a need exists.’ However, they could not
act without European supervision over the law and the decisions applying
it. Therefore, the ECHR has the authority to look at the interference com
plained of in the light of the case as a whole and determine whether it is pro
portionate to the legitimate aim pursued and whether the reasons adduced
by the national authorities to justify it are ‘relevant and sufficient This ap
Ibidem, paras. 43—46.
10
Ibidem, paras. 48—49.
Whistleblowing and the case of Heinisch vs Germany.
163
proach means that the ECHR should verify if the national authority decided
based on i) rules compatible with the principles established in Article 10 of
the Convention; and ii) acceptable assessment of the relevant facts.’1 Besides,
under Article 10 of the Convention, an employee or civil servant shall en
joy protection in certain circumstances, notably when he or she is ‘the only
person, or part of a small category ofpersons, aware of what is happening at
work and is thus best placed to act in the public interest by alerting the em
ployer or the public at large.’12 Finally, the employee is obliged to regard to the
duty of ioyalty reserve and discretion owed by him to his employer and its
nature and extent in a case ‘has an impact on ffie weighing ofthe employee’s
rights and the conflicting interests of the employer”3 Consequently, the em
ployee shall make it primarily to his or her superior or to other competent
authority or body.’4
Second, ffie assessment of proportionality of the interference in relation
to the legitimate aim pursued shall consider the following factors or circum
stances: i) ffie public interest involved in the disclosed information, bearing in
mmd that Article 10, para. 2.°, leaves limited space for restrictions or debate
on questions of public interest; ii) existence of alternative channels for the dis
closure; iii) ffie authenticity of the information disclosed, since the ‘freedom
of expression carnes with it duties and responsibiities and any person who
chooses to disclose information must carefully verify to ffie extent permitted
by the circumstances, that it is accurate and reliable’; iv) the balance between
the damage suffered by the employer and the interest of the public in having
the information revealed; v) the motive behind the action ofthe empioyee, in
order to avoid acts or behaviours motivated by ‘personal grievance or personal
“
Ibidem, para. 62. See also, ECHR, 25 August 1998, 59/1997/843/1049, Hertel vs Swit
zerland, para. 46; ECHR, 26 November 1991, 13166/87, Sunday Times vs lhe United King
dom, para. 50; and ECHR, 15 february 2005, 68416/01, Steel and Morris vs lhe United
Kingdom paras. 87—88.
12
ECHR, 30 September 2010, 28369/07, Vesna Balenovié vs Croatia; ECHR, 21 JuIy
2011,28274/08, Heinisch vs Germany, para. 62. See also ECHR, 15 february 2008, 14277/04,
Guja vs Motdova, para. 72 (strong public interest); and ECHR, 19 February 2009, 4063/04,
Marchenko vs Ukraíne, para. 46.
‘
As for these duties, the ECHR admits different degrees between the public and the
private sectors. ECHR, 21 JuIy 2011, 28274/08, Heinisch vs Germany, para. 64. See also,
ECHR, 19 February 2009, 4063/04, Marchenko vs Ukraine, para. 45 (union representative).
14
ECHR, 21 JuIy 2011, 28274/08, Heinisch vs Germany, paras. 62—65. See also, ECHR,
15 february 2008, 14277/04, Guja vs Moldova, para. 73.
164 Chapter 11
antagonism or the expectation of personal advantage’; and vi) ffie severity of
the penalty imposed on the applicant.’5
As for ffie present case, ffie ECHR considered i) ffie information disclosed
‘was undeniably of public interest,’ ii) the external reporting by means of
a criminal complaint was justifiable, provided that the employee had informed
and alerted the management, notably about a possible criminal complaint,
wiffiout any success, iii) the authenticity of the complaint does not directly
depend on the findings of the criminal complaint, nor on the lack ofevidence,
iv) the employee acts ‘in good faith and in ffie belief that it was in the public
interest to disclose ffie alleged wrongdoing on ffie part of her employer to ffie
prosecutor and that no other, more discreet means of remedying the situation
was available to her regardless the fact ffie personal interest of the employee in
the improvement of her own working conditions, v) ‘the public interest in re
ceMng information about shortcomings iri the provision of institutional care
for the elderly by a State-owned company is so important in a democratic so
ciety that it outweighs ffie interest in protecting ffie latter’s business reputation
and interests and vi) the dismissal was disproportionately severe. In sum, ffie
interference with the right to freedom of expression, notably to impart infor
mation, ‘was not necessary in a democratic society Thus, there was a violation
ofArticle 10 ofthe Convention.’6 Finally, ffie ECHR denied any compensation
15
ECHR, 21 July 2011, 28274/08, Heinisch vs Germany, paras. 66—70. $ee also ECHR
10 December 2007, 69698/0 1, Stott vs Switzertand, para. 106 (‘The most careful scrutiny
on the part of the Court is called for when, as ín the present case, the measures taken or
sanctions ímposed by the national authoríty are capable of discouraging the particípation
of the press in debates over matters of legítimate public concern’); ECHR, 20 May 1999,
69698/01, Btadet Tromsø and Stensaas vs Norway, para. 65 (duty to act in good faith);
ECHR, 15 february 2008, 14277/04, Guja vs Moldova, para. 77 (‘It is important to estab
lish that, m making the disclosure, the individual acted in good faith and in the beliefthat
the information was true, that it was ín the public interest to disclose it and that no other,
more discreet, means of remedying the wrongdoing was available to him or her’) and
ECHR, 29 February 2000, 39293/98, fuentes Bobo vs Spain, para. 49 (‘Quant à la gravÍté
de la sanction infligée au requérant, la Cour constate que la TVE lui appliqua la sanc
tion maximale prévue par le Statut des Travailleurs, à savoir la résiiation du contrat de
travail sans droit à indemnisation. Ii est incontestable que cette sanction a revêtu, eu
égard notamment à l’ancienneté du requérant dans Pentreprise et à son âge, une sévérité
extrême, alors que d’autres sanctions disciplinaires, moíns lourdes et plus appropriées,
auraient pu être envisagées’).
16
ECHR, 21 July 2011, 28274/08, Heinisch vs Germany, paras. 71—95. The ECHR re
jected anyviolation ofArticle 6, para. 1°, ofthe Convention (paras. 96—98).
Whistleblowing and the case of Heinisch vs Germany... 165
for pecuniary damages, but awarded compensation for non-pecuniary dam
ages (10.000 €).
4. INTERNATJQNAL AND EUROPEAN LAW
Whistleblowers, as ali citizens, are formally covered by the general body of
international law and by international labour law in particular. Nevertheless,
the legal basis ofthe judgment the Convention’7 does not establish either
— —
ffie specffic rights of workers or the specific protection of whistleblowers. lhe
rights guaranteed by ffie Convention are much more general. ECHR judges of
course also decide labour law cases, but in this instance the legal basis of the
judgments is the infringement of more universal rights, such as the prohibi
tion offorced labour (Artícle 4), the right to liberty (Article 5), and more often
the right to respect private and family life (Article 8), freedom of thought,
conscience and religion (Article 9), freedom ofexpression, freedom ofassem
bly and associations (Article 11) and right to a fair trial (Article 6). So, the im
portance of the ECHR jurisdiction to labour law results from giving outlines
of ffie general borders of the above-mentioned universal rights in relations
between employee and employer, either private or public, as well as between
the state and employer or employee. In the case at hand, it was the freedom of
expression (Article 10).
In view of above-mentioned generality of the Convention, the court, as
in ffie case Guja vs Moldova,18 referred to other acts ofinternational law. lhe
ECHR invoked Article 24 of the Charter’9 and Articles 4 and 5 of the ILO
no. 158 ‘Termination of Employment Convention2° These provisions guar
antee the employees’ right to not have their employment terminated with
out valid reasons. Regarding the provisions of both acts, fihing a complaint
17
Convention of 4 November 1959 for the Protection of Human Rights and funda
mental Freedoms as amended by Protocois Nos. 11 and 14, supplemented by Protocois
Nos. 1, 4, 6, 7, 12 and 13, httP://wwwechr.coe int/Documents/Conventjon ENGpdf (ac
cess: 15.04.20 16).
LO
ECHR, 15 February 2008, 14277/04, Guja us Motdova.
19
The Revísed European Social Charter of 3 May 1996, ETS no. 163, https://wwwcoe.
(access: 15.04.2016).
20
International Labour Organízation Convention concerning Termination of Em
ployment at the Initiative ofthe Employer of 22 June 1982, http://wwwilo.org/dyn/norm
lexJen/f?pNOJUvfLEXpUB.121QO.0..NO..p121OOJLQCQDEClS$ (access: 15.04.2016).
 Chapter 11 Whistleblowing and the case of Heinisch vs Germany... 167
166
could obviously not have also referred to the newest European legal act in the
or participating in proceedings against an employer do not constitute valid
field, which is the Resolution of the Parliamentary Assembly of the Coundil of
reasons for employment relationship termination. The Charter and the Con
Europe of 2015 on improving the protection ofwhistleblowers.26
vention may cover the case of whistleblowers in the context of employment
European soft law on whistleblowing presents and recommends more
relationship termination provisions. It declares termination of employment
comprehensive regulation of the issue. lhe comprehensiveness mentioned is
unjustified if the case of it was the filing of a complaint or the participa
considered in two dimensions. First, state regulations should cover diverse
tion in proceedings against an employer involving alleged violation of laws
branches oflaw, in particular labour law, criminal law and procedure and me
or regulations or recourse to competent administrative authorities (Article
dia law (see point 6.1.3 ofthe resolution of 2010). Second, internal legal sys
5, une c). What is important, for example, Austria, Germany, Poland and
tems should consist not only of a normative legal framework, but also properly
Raly ratified neither the charter, nor ILO Convention no 158. Besides, Brazil
functioning institutions (insfitutional framework) and an effective judicíary
denounced it on 20 November 1996. On the other side, however, we find
(judicial framework). Where appropriate, coilective labour agreements might
france, Portugal and Spain.21
replace or complement statutory law (point 1.1 of the appendix to the recom
International legal acts, which undertake íssue of whistleblowing more
mendation of 2014).
specffically are conventions on corruption signed under the auspices of the
In reference to the specific provisions of Furopean standards, it shali be
United Nations22 and the Councfl of Europe.23 Generally, conventions impose
underscored that the requirements for internal law definitions ofwhistleblow
their sides to implement in internal legal systems the protection of persons
ing and whistleblowers are set out very precisely. lhe definition should cover
who inform bonafide on violations. lhe legal acts mentioned above were in
at least ali bona fide warnings in the broadly conceived public interest (point
sufficient. This conclusion has led to the development of European soft law
6.1.1 ffie resolution of 2010 and point 1.2 the appendix to the recommendation
on whistleblowers, which includes foremost the Resolution of the Parliamen
of 2014). lhe legal protection of whistleblowers shall be effective (point VII
tary Assembly of ffie Council of Europe of 2010 on the protection of whistle
the appendix to ffie recommendation of 2014) and easily accessible. A very
blowers,24 but also the Recommendation of the Committee of Ministers of
important recommendation is shifting the burden of proof in whistleblow
2014 on the protection of whistleblowers.25 Only ffie former was invoked by
ing cases to the employer. As it is underlined in point 5.1 the resolution of
the court in the Heinisch vs Germany case, as the ruling was in 2011. The ECHR
2010, legal measures shall not be of a nature ffiat offers a false sense ofsecurity
(‘cardboard shield’). ‘Where necessary, criminal law and procedure measures
21
Cf http://www.ilo.org/dyn/normlex/en/f?p=1000:1 1300:0::NO:11300:P1 1300_IN- shall also be exercised. Legal frameworks shall include ffie protection ofwhis
STRUMENT_ID:312303 (access: 10.02.2016). tleblower identity (point 6.2.1.2 the resolution of 2010 and point V appendix
United Nations Convention against Corruption, General Assembly resolution 58/4
to ffie recommendation of 2014). Potential reprisal actions shall be penalised
of 31 October 2003, https://wwwunodc.org/documents/treaties/UNCAC/Pub1ications/
Convention/08-50026_E.pdf (access: 15.04.2016). (point 6.2.6 the resolution of2OlO).
Criminal Law Convention on Corruption of 27 January 1999, ETS No. 173, https:/I Moreover, internal national legal systems shali include incentives for em
rm.coe.int/CoERMPublicCommonSearchServices/DisplayDCTMContent?documentl ployers to introduce internal whisfleblowing procedures (point 6.2.1 the reso
d=090000168007f3f5 (access: 15.04.2016) and Civil Law Convention on Corruption of lution of 2010). Furopean standards envisage diverse forms, or channels, for
4 November 1999, ETS No. 174, https://rm.coe.int/CoERMPublicCommonSearchSer
whistleblowing: internal and externa! channels that are divided to address ap
vices/DisplayDCTMContent?documentld=090000168007f3f6 (access: 15.04.2016).
24
Resolution no. 1729 of 29 April 2010 ofthe Parliamentary Assembly ofthe Coundil propriate organs or the media and special channels ffiat are for whistleblowing
of Europe on protection of ‘whistle-blowers http://assembly.coe.int/nw/xmlJXRef/Xref
XML2HTML-en.asp?ffleid=17851&lang=en (access: 15.04.2016). 26
Resolution no. 2060 of 23 June 2015 of the ?arliamentary Assembly of the Council
25
Recommendation no. 7 of 30 April 2014 of the Committee of Ministers to mem ofEurope on improving the protection ofwhistle-blowers, http://assembly.coe.jnt/nw/yn,J/
ber States on the protection ofwhistleblowers, https://wwwcoe.int/tfdgh1/standardsetting/
XRef/Xref-XML2HTMLen.asp?fileid2 l931&lang=en (access: 15.04.20 16).
cdcj/CDCJ%2oRecommendations/CMRec(2014)7E.pdf (access: 15.04.2016).
168 Chapter 11
in the special forces or when there are secrets protected by iaw.27 Simultane
ously, internal whisfleblowing channels are the most emphasised in European
soft iaw. Such high leveis of the development of standards on whistlebiowing
could not be possible without ffie diverse actions ofvarious non-governmen
tal organisations. The whistieblowing phenomenon is well described not only
in legal writing,28 but also in many studies realised for or supported by inter
national organisations29 and the non-governmental sector.3°
The key probiem wiffi ffiis part of the body of international law is ffie iadc
ofbinding force. Soft law measures did not iead to ffie dynamic deveiopment of
whistleblowing reguiations at ffie state levei. The legal framework for whistie
biower protection has been introduced lii very few states. What is interesting is
ffiat whistlebiower protection is advanced not only in ffie United States, Great
Britain, and Luxembourg, but aiso in Central and Eastern European countries
such as Romania and Slovenia.3’ Nevertheless, countries with advanced whis
tleblower protection are stffl a rarity Thus, it is not surprising that in ffie newest
Resoluüon of 2015 the Parliamentary Assembly of ffie Council of Europe cafis
on European countries to agree on a binding legal instrument of a convention
on whistleblowing protection. The future convention should be based on well
developed soft law, and ffie Recommendation of 2014 in particular.
The pivotai question for ffie paper is what was ffie role of ffie ECHR, íts
jurisdiction, and ffie judgment in ffie case Heinisch vs Germany in ffie devei
opment of whistleblowing procedures? It has to be pointed out that based on
universal and generally formulated rights such as the freedom of expression
(Article 10 ofthe Convention), ffie ECHR not only offered protection to a nu-
27
See also resolution ofthe ParliamentaryAssembly ofthe Coundil ofEurope 19 April
2007 on fair trial issues in criminal cases concerning espionage or divtilging state secrets,
http://assembly.coe.int/nw/xml/XRef/XrefXML2HTMLefl.aSP?fileid=17535&Iaflg
(access: 15.04.2016).
28
See Whistleblowing a comparative study, G. Thusing, G. forest (eds.), Berlim 2016,
—
354.
p.
29
Coundil of Europe, How to protect whisttebtowers?, http://www.coe.int/t/dgM/stan
dardsettmgÍcdcj/Whisileblowers/protectingwhistlebloWerS_efl.aSP (access: 15.04.2016);
G20, Anti-Coruption Action Plan. Protection of Whistteblowers, https://wwwoecd.org/g20/
topics/anti-corruptíon/48972967.pdf (access: 15.04.2016).
Transparency Internatíonal, Whistteblowing in Europe. Legal protections for whistle
btowers in the EU, http://wwwtransparencyorg/whatWedo/pUblication/whiSt1eblowi11g
m_europe_legal_protections_forwhistleblowers_ini.he_eu (access: 15.04.2016).
See Whistleblowing in Europe..., p. 5.
1
j Whisileblowing and the case of Heinisch vs Germany... 169
merous group of whistieblowers, but it also deveioped a set of principies for
ffie adjudication of whistieblower cases. The starting poínt is always the legal
limitations of the freedom of expression such as that ‘prescribed by law that
‘necessary in a democratic society’ and that in the public interest (see Articie
10.2 of the Convention). Yet, in Grifa vs Moldova based on these general pre
requisites and that of what is ‘necessary in democratic society the ECHR set
out expressly six factors to examine whether actions against whistlebiowers
infringe upon his or her freedom of expression and are therefore ilegal in
view of the Convention. These are ffie public interest ofthe disclosed informa
tion, the existence of alternative disclosure channels, the auffienticity of the in
formation disclosed, whistieblower good faith, the detriment to ffie employer
and the severity of the sanctions imposed on whistiebiowers (see above). Each
case demands exercising all of these factors.
One might observe that ECHR jurisdiction and the above-mentioned Eu
ropean soft law measures overlap. The Resoiution of 2010 on whistleblower
protection adopted the most important ECHR judgments, that of Grifa vs Moi
dova, and it included, inter alia, ffie ways of understanding disclosure channeis
(point 6.2.2 and 6.2.3 of the Resoiution of 2010), the veracity of information
(point 6.2.4 of the Resolution of2OlO) and good faiffi (point 6.1.1 ofthe Reso
lution of 2010). On ffie offier hand, the Court, like in the Heinisch vs Germany
case, recalled the Resoiution of 2010 and its provisions in a detailed manner
several times. Moreover, the explanatory memorandum to the Recommenda
tion of 2014 expressly recalls not oniy Grifa vs Moidova and Heinisch vs Ger
many but also Bucur and Toma vs Romania.32 In summation, first, EHCR ju
risdiction is an important factor in formulating and expanding European soft
law regulations. Second, the EHCR stffl recalls and deveiops interpretations of
standards, which has already been expressed in the soft law measures of the
Coundil of Europe.
In Heinish vs Germany, the ECHR reiterates ffie most important of its for
mer allegations on exercÍsing whistleblower cases. What was particuiarly im
portant in the Heinisch vs Germany case, was its underiying tenet that a whis
tleblower deserves protection, aithough he or she reported the empioyer to the
public prosecutor on charges of aggravated fraud and criminal proceedings
were discontinued on ffie grounds of insufficient reason for bringing publíc
charges. The ECHR said expressly that the whistieblower cannot reasonably
32
ECHR, 8 January 2013, 40238/02, Bucur and Toma vs Romania.
170 Chapter 11
anticipate whether investigations will lead to indictments or if they will be ter
minated. Of course, whistleblowers must verify carefully the factual grounds
of criminal complaints. This obligation is derived from duties and responsi
biities that are naturally connected wiffi freedom of expression, which ffie
Court reiterated.
Nevertheless, it is up to law enforcement auffiorities to investigate ffie ve
racity of allegations. The ECHR’s point of view in this field is fully justffied.
The way in which criminal proceedings end is unpredictable for a complain
ant and even for his or her lawyer. It must be pointed out that in the case at
hand, Ms Heinish based her criminal complaint on two reports by the super
vising authority and lhe testimony of three witnesses. Her complaint was for
mulated by her lawyer. The second controversial matter, which was stressed in
Heinish vs Germany relates to good faith. Referring to the Court, good faiffi is
not excluded, even whístleblowers have personal motives, such as improving
working standards at employers. The condlition is there should be no doubt
that disclosing information is primarily in lhe public interest. If that is lhe
case, additional personal motives cannot prevail and these wffl eventually
block whistleblower protection.
5. NATIONAL LAWS: POLAND
Apparently, neither the European soft law measures nor lhe ECHRjurisdiction
in the case of Heinisch vs Germany changed affltudes to whistleblowers and
whistleblowing iii Germany or in olher European countries. Taldng into con
sideration lhe Polish example, it should be stressed that the phenomenon of
whistleblowing is perceived in Polish culture negatively. Research on opinions
of Poles on whistleblowers33 indicates that the vast majority (approximately
77%) predicts that employers will have a negative reaction to whistleblowers.
What is more, lhe majority of lhose surveyed (approximately 58%) predicts
that other employees will react negatively. Nearly every tenth Pole considers
lhat whistleblowers would not be welcomed to shake hands wilh fellow em-
Bohaterowie czy donosiciete? Co Polacy my1q o osobach ujawniajqcych nieprawidlo
waíci w miejscupracy?Raportz badaí itotciowych, Fundacja Centrum Badania Opiníí Spo
lecznej na ziecenie Fundacji im. Stefana Batorego, Warszawa 2012, pp. 4—5 and 8, http:II
www.batory.org.pl/upload/files/Programy%2ooperacyjne/Przeciw%2oKorupcji/Raport.
SygnaliscLpdf (access: 15.04.2016).
Whistleblowing and the case of Heinisch vs Germany... 171
ployees. Only approximately 4% of those surveyed thought lhat employers
would utilise information gained from whistleblowers to eliminate problems.
Barely 1% ofthose surveyed could envisage rewarding whistleblowers.
This lhought paradigm is deeply rooted in the coilective consciousness of
generations of Poles. Its genesis is related to lhe disfflusionment associated
with lhe coilapse of the Polish state in 1795, and the subsequent period of
political dependence on Russia, Germany and Austria. From the end of the
eighteenth century and for approximately 123 years Poland did not exist as
a country Then it was occupied during World War II, and from 1945 to 1989,
the Polish state was completely dependent on lhe USSR and its interests.
Throughout ffiese long historical periods, the state as an institution was not
a community of Poles. On lhe contrary it was even hostile towards Poles and
subjected lhem to Germanization, Russification and communisation. Looking
lhrough the prism of’independence elhos’ cooperation wilh lhe hostile state was
impossible. Instead of lhe notion of whistleblowing, lhe Polish consciousness
was flhled wilh lhe notions ofdenunciators, informers, sneaks or delators. More
over, persons who acted against lhe state and its institutions and who abused lhe
law were and stffl are perceived as national heroes (e.g., Michal Drzymala).34 The
problem is that lhese affltudes stffl prevail in Polish society which is not helpftil
in lhe development of lhe Polish state and its laws.
On the olher hand, Polish labour law does not guarantee appropriate legal
protection for whistleblowers, and this is well described in international le
gal writing.35 First, Polish labour law is based on a relatively narrow concept of
labour relations. As a rule, labour law provisions do not regulate civil contracts,
which includes not only contracts for services but also contracts of service and
specific task contacts. Civil contracts are covered only by anti-discrimination,
minimum remuneration and health and safety provisions. There is no pre
sumption of labour contracts. The deftnftion of labour relationships is only
partly regtilated in Article 22, para. 1 of lhe Polish Labour Code.36 The Polish
M. Drzymala, World Heritage Encyclopedia, http://wrwnationa1publiclibran/org/
Articles/eng/Micha%C5%82Drzyma%C5%82a (access: 15.04.2016).
Inter alia D. Skupieú, Whistlebtowing in Potand according to legislation and case taw
[in:] Whistteblowing a comparative study..., p. 221; idem, The legal protection ofwhistle
—
btowers in Poland tini Rapports Polonais. XIX Congres international de droit compare, Vi
enne 20—26 V112014, B. Lewaszkiewicz-Petrykowska (ed.), Lod 2014,p. 257.
36
The act ofJune 26, 1974 Labour Code, consolídated text Journal of Laws 2014, ítem
1502 as amended.
172 Chapter 11
Supreme Court deveioped a comprehensive definition in its jurisprudence
based on the general provisions mentioned above. The definition worked out
in jurisprudence is ffie one and only key to the main body of labour law. The
Polish Supreme Court requires that at ieast the majority oflabour relationship
features be inciuded: subordination, personal performance ofwork, remuner
ation, employer risk, cooperation. Among these features the most important
are subordination, personal performance ofwork, and empioyer risk.
Formulating a contract so as to avoid the last three features creates a way to
remam outside almost ali labour standards. In fact, au employer might choose
to apply labour iaw or not. This choice is of course burdened by the risk of
a court finding that a labour relationship was established. Nevertheless, ac
cording to various estimates, more than 1.5 mfflion Polish employers choose
to not apply labour law. In the material aspects of cases, the choice was made
jointly with employees, e.g., ffiose who did not want ffieir remuneration to
be too heavily burdened by social security contributions. In effect, currenfly
over 1.5 mfflion Poles37 work as empioyees, but without the application of the
labour law, and ffiis number is growing continuously. The numerous group of
eventual whistleblowers can only count on the protection of the labour law
provisionally. The burden of proof is the employee’s, so he or she must first
prove that his or her relationship with the empioyer is one of a labour relation,
and ffien he or she must prove that he or she is a whistleblower.
The present material labour iaw does not guarantee proper protection even
for those who are employed in a labour relationship. The notion of whistle
blowing is not specificaliy regulated in statutory iaw. The levei of protection
can be accurately presented by referring to one of the official statements ofthe
Polish Minister of Labour. This statement was based on a truly counterfactual
assumption that ‘one cannot assume that exercising legal rights, or ffie reali
sation of obligations imposed by the iaw [whisfleblowing M.L] could re
—
sult in disadvantageous effects to ffiat person, e.g., within ffie sphere oflabour
relations38 In lhe minister’s point of view, in such cases, the whistleblower
K. Fejfer Na jakich umowach pracujq Polacy?, http://rynekpracy.org/wiado
mosc/976889.htm1 (access: 15.04.2016); J.K. Kowalski, Potska mapa umów o pracç. Nie
wiadomo, ile osób pracuje na s’mieciówkach, http://serwisy.gazetaprawna.pl/praca-i-ka
riera/artykuly/699506,polska-mapa-umow-o-prace-nie-wíadomo-ile-osob-pracuje-na-
smieciowkach.html (access: 15.04.2016).
38
Citation after A. Wojciechowska-Nowak, Ochrona prawna sygnalistów w do.swiad
czeniu sçdziów sqdów pracy. Raport z badaí, Warszawa 2011, p. 5.
J Whistleblowing and the case of Heinisch vs Germany... 173
wouid be protected by anti-discrimination and anti-harassment provisions or
the possibility of a judicial declaration of unjustified dismissai. The problem
is that over 3.2 mfflion Poles work on the basis of fixed-term labour contracts
(approximateiy 27% of all labour contracts).39 It is significant ffiat, according
to Polish iaw, dismissing an employee who is employed on a fixed-term labour
contract does not require a formal indication of the cause of the dismissal
(Articie 30, para. 4 Poiish Labour Code). Furthermore, as a rule, Polish iabour
courts do not examine causes materially. On the other hand, reprisals that
qualify as harassment is rather rare (Article 943 Polish Labour Code). Exercis
ing anti-discriminatory provisions in whistiebiower cases encounter essentiai
practical difficulties.4°
Empiricai research by A. Wojciechowska-Nowak revealed that effective
whistlebiower protection is often iimked or even excluded by factors such as
the practice ofjudicature regarding methods of evaluation of dismissal ‘justifi
cation in particular in cases when causes are not associated wiffi the empioyee
(real re-organization or economically justified decrease in leveis of employ
ment). Other factors include the opposition of judges to adjudicate on the
basis of general principies (such as the prohibition of the abuse of subjective
rights Article 8 ?olish Labour Code) and essential difficulties ffiat employees
—
have with evidence.
The next matter concerns limits of compensation in iabour law cases. Com
pensation cannot be higher ffian au empioyee’s three average monthly remu
nerations (as a rule, based on ali ffie components of empioyee remuneration,
including over-time, night-shift allowances, etc.). This potential possibility is
additionally worsened by the speed of the judicial process. According to sta
tistics pubiished by the Polish Mmnistry of Justice, the median duration offirst
instance cases in labour court in 2015 was 168 days in district courts and 354.3
in regional courts.4’ These statistics do not reflect the real duration of iabour
iaw cases in which there is a conflict, and ffie parties to the case do not come
to an agreement and defend their points of view until judgment. Piotr Grze
byk reports that the median duration of adjudicating labour reiation cases is
J.K. Kowalski, Polska mapa umów.,.
°
A. Wojciechowska-Nowak, Ochrona prawna sygnatistów..., pp. 87—94.
41
Ewidencja spraw w sqdach powszechnych wedlug dzialów prawa i instancyjnos1ci za
rok 2015, Ministerstwo Sprawiedliwoci, Warszawa 2016, pp. 16—23, https://isws.ms.gov.pl/
pl/baza-statystyczna/opracowania-jednoroczne/rok-2o1 5/download,3 169,9.html (access:
15.04.2016).
174 Chapter 11
one yearY However, in ffie author’s experience and ffiat of his coileagues, the
168 days cited from Ministry of Justice statistics are often required just to ob
tain the first hearing in district court.
6. NATIONAL LAWS: PORTUGAL
A whistiebiower faces a dilemma between the rights to freedom ofexpression
and to lodge a complaint against misbehaviours and the duties of loyalty and
confidentiality.43 Portugal does not provide regulations dedicated to ffie pro
tection of whistleblowers or to rule and control whistleblowing proceedings.
Therefore, we need to appiy general labour provisions to assess ffie levei of
security granted to whistleblowers.
First, the employer must not oppose, in any way, the exercise ofthe labour
rights of the empioyee or dismiss him or her, appiy to him or her other sanc
tions, or treat him or her unfavourably because of such exercise (Article 129,
para. 1, une a), ofthe Portuguese Labour Code). The breach ofthis prohibi
tion constitutes a very serious administrative offence punishable by a fine
and additional penaities (e.g., the disclosure to the public of such an infringe
ment) (Articles 129, para. 2, and 562 ofthe Portuguese Labour Code). Thus,
the employee can claim against working conditions (e.g., health and safety
at work, demotion, change of workplace, harassment, discrimination, pres
sure to enter into an alleged termination agreement) and cannot be placed
at a disadvantage because of such behaviour (e.g., suffering harassment or
discipiinary sanction), unless ffie empioyee knew or ought to have known
that the allegation was false or incorrect. ‘flue claim may be presented before
the employer or its legal representatives, but this can also be brought before
the authority for working conditions and the labour courts. As a ruIe, the
employee can present the claim to ffie employer in person, through an at
torney, in a meeting or through an e-mali or letter. Nonetheless, when the
subject is quite sensitive (e.g., sexual harassment, discrimination or ifiegal or
42
P Grzebyk, Analiza orzecznictwa sqdowego w sprawach o ustatenie istnienia sto
sunku pracy. Zatrudnienie pracownicze a zatrudnienie cywilnoprawne (Analysis ofcourtju
risdiction in cases regarding ascertaining the existence of labour relations), Warszawa 2015,
s. 77, https://www.iws.org.pl/pliki/files/IWS_GrZebYk%20P._UStaleflie%2oistflieflia%20
stosunku%2opracy.pdf (access: 15.04.2016).
J.M. Víeira Gomes, Um direito de alerta cívico..., p. 139.
Whistleblowing and the case of Heinisch vs Germany...
175
criminal behaviours) or the author of ffie misbehaviour concerned is, for ex
ample, a coileague or a direct supervisor, the empioyee could drop lis or her
lodging of a complaint because of fear of the consequences at work or even
in his or her life outside of work. In these cases, an internal dedicated chan
nel for complaints could be a good instrument to avoid reprisals or retalia
tions, while also maldng the employer aware of the facts and circumstances,
which would permit actions to be taken to correct the misbehaviour without
harming its public image.44 As for the Portuguese ruling, a complaint lodged
before an external entity upon internal alert or a grievance without any reac
tion by the employer, does not constitute a fair cause for dismissal,45 unless
it interferes with the honour and private and family life of an immediate su
perior and of au employee, which is deemed unnecessary for the exercise of
the right of criticism.46
Second, any disciplinary sanction including dismissal is deemed abu
— —
sive, notably when it is since ffie employee i) has legitimately claimed against
work conditions, ii) refuses to comply with an order to which he or she does
not owe obedience or iii) exercises, has exercised, intends to exercise or
There are two different and conflicting modeis: purely ethical (the complaint as
a right to fight against illegalities) or merely pragmatic (duty to complain as a mechanism
to prevent and to combat ifiegalities) J.M. Vieira Gomes, Um direito de alerta cívico...,
—
pp. 133—135, 159—160). Since 2009, the Portuguese Authority for Data Protection lias an
inexplicably strict view on the admissibiity of internal channels for the communícation of
management misbehaviour. Apparently, this only allows such a mechanism to prevent and
to suppress misbehaviour in lhe following fields: accounting, internal accounting controis,
audít, anti-corruption and banking and financial crimes, available at https://wwwcnpd.
pt/bin/orientacoes/DEL765-2009_LINHASETICA.pdf (access: 10.01.2016). The Recom
mendation of lhe Committee ofMinisters of2014 on the protection ofwhistleblowers may
show a different and a more adequate approach to this topic and particularly with regard to
the right to report or disclose public interest concerns.
PSC, 3 March 2004, 03S2731, Judge-Rapporteur Vítor Mesquita, available at wwwdgsi.
pt (access: 12.02.2016). In the other hand, statements on social networks could be deemed as
fair cause for dismissal: ECA, 30 January 2014, 8/13.6TTfAR.E1, Judge-Rapporteur José fe
teira; LCA, 24 September 2014, 431/13.6TTFUN.L1-4, Judge-Rapporteur Jerónimo freitas;
and PCA, $ September 2014, 101/13.5TTMTS.P1, Judge-Rapporteur Maria José Costa Pinto,
available at wwwdgsi.pt (access: 12.02.20 16).
46
The external entity was the chairman ofthe board of directors ofthe parent company
controlling the employer and lhe applicant was a trade union delegate (PSC, 4 July 2013,
7583/1 1.8T2SNT.L1.S1, Judge-Rapporteur Maria Clara Sottomayor, available at wwwdgsLpt
(access: 12.02.2016).
 176 Chapter 11
invoke their rights and guarantees (Article 331, para. 1, lines a, b and d, of
the Portuguese Labour Code). Additionally, dismissal or any other disciplin
ary sanction is presumed abusive when applied allegedly to punish a labour
infraction within the following timeline: i) up to six months following any
ofthe events mentioned above; and ii) up to one year upon lodging a com
plaint or any other form of the exercise of rights regarding equality and non
discrimination (Article 331, para. 2, of the Portuguese Labour Code). In
cases of abusive sanction, ffie employee is entitled to receíve compensation
from the empioyer for damages suffered (Article 331, para. 3, of the Portu
guese Labour Code). In case of dismissal, the employee may choose between
reinstatement in the business unit and compensation to be determined by
the court from 30 up to 60 days of base salary and seniority allowance per
fuil year or a fraction thereof, taidng into account i) the amount of the re
muneration, ii) the degree of unlawfulness,47 and lii) ffie time lapse between
ffie dismissal and the res judicata ofthe court decision (Articles 331, para. 4,
391, paras. 1 and 2, 392, para. 3, ofthe Portuguese Labour Code). In case of
a financial penalty or suspension from work with loss of remuneration and
seniority compensation shall not be lower ffian ten times the amount ofthe
financial penalty or lis or her loss ofwages (Articles 331, para. 5, of the Por
tuguese Labour Code).48 The imposition of an abusive sanction constitutes
a serious administrative offense punishable by a fine and, in certain circum
stances, by additional penalties (e.g., the disclosure to the public of such
an infringement) (Articles 331, para. 7, and 562 of the Portuguese Labour
Code). Therefore, when an employee lodges a complaint, openly or through
an internal channel, and ffie employer applies a disciplinary sanction based
For such purposes, the court shall consider the following order: i) ifit is dueto politi
cal, ideological, ethnic or religious reasons, albeit with invocation of a different motive; ii) f
the reason for dismissal is dedared unfounded; iii) if it is not preceded by the respective
procedure; and iv) iii the case of a pregnant worker, a pregnant or breastfeeding woman or
a worker during the initíal parental leave, in any of its forms, unless the prior opinion of
the competent authoríty in the area of equal opportunities for men and women is requested
(Artide 391, para. 1, and 381 ofthe Portuguese Labour Code).
48
Ia case of abusive sanction because the employee exercises or applíed to exercise of
a position in a coilective representation structure, the compensation increases to double
the amounts mentioned. Ia the case of a dismissal, the employee is entitled to compensa
tion corresponding to no less than twelve times the base salary and seniority allowance
per fuil year or fraction ffiereof(Article 331, para. 1, line c, and para. 6, ofthe Portuguese
Labour Code).
Whistleblowing and the case of Heinisch vs Gerrnany... 177
on such behaviour or on another, but within a period established in the law,
the sanction is qualified as abusive or presumed abusive, respectively, with
the consequences mentioned above.
We may raise the question whether this regime awards a good or, at least,
reasonable levei of protection. In our view, the Portuguese system is in une
with ILO Convention no. 158 and provides a minimum levei ofprotection for
whistieblowers.
7. CONCLUSIONS
Whistleblowing is a very controversiai issue. The ECHR jurisdiction and ffie
—
Recommendation of ffie Committee of Ministers of 2014 on ffie protection of
whisfleblowers couli be a cornerstone for the deveiopment of whistleblower
—
protections and its limits. Based on the very general provisions of ffie Conven
tion regarding the freedom of expression, ffie court provides protection to a nu
merous group of whisfleblowers. Exercising the same legal basis, it also set out
standards for the adjudication of whistleblower cases. Those standards were
iater reflected in the soft law acts of the Coundil of Europe (the Resolution of
2010 and ffie Recommendation 2014). Cases iilce Heinisch vs Germany are very
important steps towards a better understanding of the nuances ffiat appear in
whisfleblower cases. In ffie case at hand, the Court underlined ffiat even if the
public prosecution office terminates proceedings that started based on a whis
tlebiower’s compiaint, on the grounds ofthe iack ofsufficient reasons, it does not
mean ffiat ffie whistieblower does not deserve protection. The Court observed
very well that decisions ofpublic prosecutors are not predictabie for a complain
ant, even if he or she consults a lawyer. The ECHR ruling also points out the
importance of creating internal communicatíon channeis to promote the dis
dosure of information flrst within the labour organization and providing time
to management to identify in due course the wrongdoings and to implement ffie
necessary conective measures.
Neither European soft law nor the Court’s jurisdiction reversed attitudes
towards whístleblowers in European countries. The situation of this vulner
able group of citizens is shifting very slowly. The Resolution of 2015 states
appropriately that there is a pressing need for an international hard law
convention on whistleblowers. Of course, not ali problems wffl be soived
by a convention on whistiebiowing, e.g., the speed of judicial proceedings.
178 Chapter 11

Albeit, hard law measures would surely contribute to the implementation of

international standards at the state levei more appropriately.
The two national experiences show different stages of protections regard
ing whistieblowers. However, the national systems should start a paffi towards CHAPTER 12
the regulatíon of whístlebiowing procedures and the protection of whistle
blowers while bearing in mmd the inevitable risks of ffie abuse and misuse of CHANGES IN WORKING TIME ARRANGEMENTS
the legal framework. AND THE RIGHT TO PAID ANNUAL LEAVE
(JUDGMENT OF 11 NOVEMBER 2015, GREENFIELD,
C-219/14, EU:C:2015:745)

Helena Ysàs Molinero, David Gutiérrez Coiominas

ABSTRACT
lhe right to paid annuat leave is one of the principies ofEuropean Union social law. Its
configuration in dfferent situations lias generated a range of Court oflustice ofthe Euro
pean Union (dE U) judgments that consotidate theprotective view ofthis right. lhe latest
is the GreenfieidJudgment of 11 November 2015, Greenfield, C-219/14, EU:C:2015:745,
that resolves a probtematic situation that, at the time, had had no clear solution: the
calculation ofpaid annual teaveforpart-time workers where there is an increase in their
working hours.
lhe aim ofthispaper isto analyse the decision ofthe CJEV taking into account the
previousjudgments on paid annual leave, in order to spot the present trend. Iii addition
to this European view, we witl also analyse the judgment effects in the Spanish legal
system and how the Greenfield judgmentfits in with Spanishjurisprudence.

1. BACKGROUND: THE COURT’S PREVIOUS JUDGMENTS

ON PAID ANNUAL LEAVE

Paid annual leave is an issue that lias, over the last decade, generated a consid
erable number of decisions from the CJEU. Directive 2003/88, of 4 November,
concerning certain aspects of ffie organization of working time inciudes an
Article (number 7) devoted to paid annual leave. The provision fixes a paid
annual leave period of, at least, four weeks, ‘in accordance with the conditions
for entitiement to, and granting of, such ieave laid down by nationai legisiation