What is the EU Whistleblowing Directive?

Whistleblower protection at the EU level can help identify, prevent, and deter corruption, fraud, and other criminal activities that affect the financial interest of the EU. The protection offered to whistleblowers can be vastly different from country to country. Some EU members have comprehensive laws while others have fewer or less robust rules, which can negatively impact the functioning of other EU policies and undermine the market. For example, while many countries already have whistleblower protection, some states only cover sectors such as corruption and the public sector, making protections across the EU inadequate.

Whistleblowers are given protection by the directive when they report wrongdoings in the following areas: public health, food safety, animal health and welfare, consumer protection, transport safety, product safety, environmental protection, nuclear safety, terrorist financing, public procurement, anti-money laundering and financial services, and privacy and personal data. The directive also applies to breaches of union competition rules, potential harm to the EU’s financial interests, and arrangements that lead to tax advantages and go against existing corporate tax laws.

Other channels have become less viable. Using a call centre means speaking to a person who will likely ask in-depth questions, which can reduce the whistleblower’s confidence in disclosing information. Reports made by phone are steadily decreasing and make it difficult to provide support after the disclosure is made. Using an ombudsperson allows you to have a legal expert on hand, but there may be a lack of trust or assurance of anonymity, which can stop potential whistleblowers from disclosing. An anonymous mailbox makes following up with the whistleblower nearly impossible and does not comply with the EU directive.

Feel free to explore our whistleblower blog where we look at other such examples and discuss the ins and outs of everything whistleblowing.

Some disclosures are known as ‘qualifying disclosures’. Qualifying disclosures are any disclosed wrongdoings where the employee believes that they are acting in the public’s best interest and a failure is currently happening, took place in the past, or is likely to happen if nothing is done. These failures can include damage to the environment, a breach of a legal obligation, a criminal offence a danger to the health or safety of a person or a group of people, or a deliberate cover-up of information which indicates any of these failures.

The EU whistleblowing directive provides protection to whistleblowers during legal proceedings about the disclosure of information. The rules are meant to protect whistleblowers from retaliation and charges when they disclose information that is legally protected. The directive provides financial assistance such as covering legal fees and costs for whistleblowers who win their cases. Whistleblowers are also given remedial measures against retaliation such as workplace harassment or firing.

The directive is intended to protect whistleblowers and safeguard the public interest. Malicious whistleblowing is discouraged, and the person or organisation accused of wrongdoing is presumed innocent until proven otherwise. Accused persons and organisations have the right to receive a fair trial and defend themselves. Some EU members have introduced dissuasive penalties for making malicious or abusive disclosures.

No. The whistleblower who meets the threshold for protection is no longer bound by a confidentiality clause. You cannot bind employees to confidentiality clauses or legally pursue them for breaching such agreements if they have disclosed wrongdoing through official channels such as a whistleblowing tool.

A regulation applies to each of the EU member states and is carried out the same way across the EU, although there may be some small differences in the way nations interpret the legislation. On the other hand, a directive sets a minimum standard that must be implemented within national laws. There may be significant differences across EU member states in the way these laws are implemented and interpreted.

As of December 17^th, 2021, the directive has broadened its reach. It now applies to local communities with more than 10,000 residents, all public or private organizations with more than 250 employees, organizations working in finance regardless of size, and organisations subject to AML/TF legislation such as law firms, accountants, notaries, and casinos. As of December 17^th, 2022, any organization with more than 50 employees will also be required to implement a whistleblower program and ensure whistleblowing data protection. Companies may need to work with local labour councils or unions to develop internal whistleblower procedures to ensure collaboration with external whistleblower channels to ensure they are compliant.

A study conducted by the EU commission in 2017 estimated whistleblower protection can save member nations between 5.6 and 9.6 billion euros annually. Results show that the cost of setting up and maintaining whistleblower protection is much lower in comparison with the potential benefits. For example, in the Netherlands for every euro invested there is a potential gain of 22 to 37 euros. Ireland and Romania also have very high favourable ratios. While the economic benefits vary from state to state, all nations see economic benefits when they implement whistleblower protection. That said, stakeholder consultations and more elaborate reporting channels can increase the cost, but also lead to a more effective system.