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Resolution 2300 (2019)
Improving the protection of whistle-blowers all over Europe
1. The Parliamentary Assembly considers
that whistle-blowers play an essential role in any open and transparent
democracy. The recognition they are given and the effectiveness
of their protection in both law and practice against all forms of
retaliation constitute a genuine democracy “indicator”.
2. The protection of whistle-blowers is also a matter of fundamental
rights: it is based on freedom of expression and of information,
which implies that everyone is entitled to express themselves freely,
without fear of retaliation, within precisely defined limits (which
prohibit hate speech and intentional defamation in particular).
However, this protection requires specific legislation to take account
of the particularity of whistle-blowers, who place themselves at
risk by pursuing a public interest objective.
3. Disclosing serious failings in the public interest must not
remain the preserve of those citizens who are prepared to sacrifice
their personal lives and those of their relatives, as has happened
too often in the past. Sounding the alarm must become a normal reflex
of every responsible citizen who has become aware of serious threats
to the public interest.
4. Without whistle-blowers, it will be impossible to resolve
many of the challenges to our democracies, including of course the
fight against grand corruption and money laundering, as well as
new challenges such as threats to individual freedom through the
mass fraudulent use of personal data, activities causing serious environmental
harm or threats to public health. There is therefore an urgent need
to implement targeted measures which encourage people to report
the relevant facts and afford better protection to those who take the
risk of doing so.
5. Accordingly, the term whistle-blower must be broadly defined
so as to cover any individual or legal entity that reveals or reports,
in good faith, a crime or lesser offence, a breach of the law or
a threat or harm to the public interest of which they have become
aware either directly or indirectly.
6. The Assembly notes with satisfaction that, since its first
report on the subject (Resolution
1729 (2010) and Recommendation
1916 (2010) on the protection of “whistle-blowers”) and
Recommendation CM/Rec(2014)7 of the Committee of Ministers to member
States on the protection of whistle-blowers, many Council of Europe
member States (Albania, Croatia, Czech Republic, Estonia, Finland,
France, Georgia, Hungary, Italy, Latvia, Lithuania, Republic of
Moldova, Montenegro, North Macedonia, Poland, Romania, Serbia, Slovak Republic,
Spain, Sweden, Switzerland and the United Kingdom) have passed laws
to protect whistle-blowers either generally or at least in certain
fields.
7. It also notes that the European Parliament approved on 16
April 2019 a proposal for a directive aimed at improving the situation
of whistle-blowers in all of its member States. This draft directive,
broadly inspired by the Council of Europe’s work on the subject,
is a real step forward. In particular, it permits free choice as
to the channel employed to “blow the whistle”, without imposing
an order of priority between internal and external channels. The
Assembly draws attention to the action taken by the European Parliament
to achieve this excellent outcome in the context of the “trilogue”
with the European Commission and the European Council in March 2019.
8. The Assembly, in noting the following proposals, expresses
its belief that these measures will only reach their full effect
if they are underpinned by free news media, which cherish and defend
their independence, and which are supported by legislation on press
freedom and on public access to official records.
9. The proposal for a European directive provides in particular
for:
9.1. a broad definition of
the group of individuals protected, including those involved in
pre- and post-contractual and non-remunerated professional activities,
shareholders and self-employed people (such as suppliers and consultants);
9.2. clear reporting procedures and obligations for employers
(private or public), who must create safe reporting channels, normally
in two stages:
9.2.1. firstly, at the whistle-blower’s choice,
an internal report (via a specially created reporting channel) or
an external report to the competent authorities (specialised regulatory
authorities, judicial authorities, professional supervisory body);
9.2.2. secondly, a public report, including in the media, if
no appropriate measure is taken within a period of three months
from the initial report or in the event of an imminent threat to
the public interest, or if a report to the authorities would not
be effective;
9.3. a ban on retaliation against whistle-blowers, with no
let-out clause and involving the effective protection of whistle-blowers
acting in good faith against criminal and civil proceedings, including “strategic
lawsuit against public participation” (SLAPP, or gagging) proceedings;
the confidentiality of the whistle-blower's identity and the protection
of an anonymous whistle-blower if their identity is discovered;
9.4. criminal and civil immunity for acts undertaken for the
acquisition of the information reported, provided that these acts
do not themselves constitute offences in their own right;
9.5. effective legal remedies and relief (compensation, reinstatement,
interim measures), with a reversal of the burden of proof concerning
the link between prejudicial measures taken against the whistle-blower
and the reporting of information;
9.6. financial penalties against those who try to prevent whistle-blowing
(“whistle-blowing inhibitors”), carry out retaliation against a
whistle-blower or disclose their identity;
9.7. effective follow-up within a reasonable period (three
months as a rule) with feedback to the whistle-blower for all whistle-blower
reports;
9.8. legal and psychological support for whistle-blowers;
9.9. the gathering and dissemination of information on the
impact of reporting by whistle-blowers.
10. The proposal for a directive directly covers the reporting
of breaches or abuses of European Union (EU) law (especially in
the areas of combating money laundering, company taxation, data
protection, protection of the EU’s financial interests, food security,
environmental protection and nuclear safety). However, nothing prevents
countries that wish to do so from protecting those reporting on
breaches or abuses of their national law according to the same principles.
There are no grounds for giving less protection to national law
and public interest at the national level than to the law and interests
of the EU.
11. All EU member countries will be legally required to transpose
this directive into their national law within two years from its
entry into force. However, the member States of the Council of Europe
that are not, or not yet, members of the EU also have a strong interest
in drawing on the draft directive with a view to adopting or updating
legislation in accordance with the new European standards.
12. On the basis of its previous work, the Assembly considers
that the following improvements aimed at clarifying, implementing
or supplementing the draft directive would be desirable in order
to reassure and give more encouragement to potential whistle-blowers
and promote a genuine culture of transparency:
12.1. allowing legal entities to “blow
the whistle” on illegal practices or enjoy protection as “whistle-blowing
facilitators”, in the same way that journalists are able to rely
on the protection of their sources; “reporting auxiliaries” must
be given increased protection, especially when put under pressure
to reveal the identity of whistle-blowers;
12.2. ensuring that individuals working in the field of national
security can rely on specific legislation providing better guidance
regarding criminal prosecutions for breaches of state secrecy in
conjunction with an exception for defence of the public interest,
and ensuring that the judges required to deal with the question
of whether the public interest justifies “blowing the whistle” have
access to all relevant information;
12.3. setting up an independent authority in each country, tasked
with:
12.3.1. helping whistle-blowers, especially by investigating
allegations of retaliation and failure to act on reports, and, where
necessary, reinstating whistle-blowers and restoring all their rights, including
full compensation for all the disadvantages they have suffered;
12.3.2. ensuring that once a matter has been reported there is
every chance of it being followed up, whatever the interests at
stake, by condemning any action to suppress it; this role is particularly
important when powerful economic or political stakeholders become
involved and make disproportionate efforts at suppression and/or
exert pressure on the whistle-blower;
12.3.3. providing a link with the judicial authorities as a reliable
source, in particular, of material evidence in connection with judicial
proceedings. Such an independent authority will therefore be able
(in the same way as authorities acting as defenders of citizens’
rights) to intervene in legal proceedings so as to give its analysis
of a case and provide elements of assessment regarding the report
made and the action taken by the whistle-blower;
12.3.4. establishing a genuine European network with other independent
authorities, making it possible to share good practices and exchange
experience regarding the stakes involved and difficulties encountered
in their work. They would constitute an independent European observatory,
which would act on a daily basis to ensure that whistle-blowers
and the alarms they sound are accorded their rightful place in our
democracies. In its own field, this network of independent authorities
would be a prime interlocutor for the Council of Europe;
12.4. setting up a legal support fund, fed by the proceeds from
fines imposed on individuals or organisations that have failed to
comply with whistle-blowing legislation, with a view to financing
high-quality legal support for whistle-blowers in court proceedings,
which are often long, complex and costly; the fund would be administered
by the independent authority, which would grant assistance if it considered
that the person being prosecuted, claiming to be a whistle-blower,
met previously established criteria;
12.5. ensuring that whistle-blowers and their relatives are
also protected against retaliation perpetrated by third parties;
12.6. ensuring that the burden of proof lies with those who
attack the whistle-blower, by providing in particular that:
12.6.1. there is an explicit presumption that the whistle-blower
has acted in good faith;
12.6.2. a person or authority that takes legal action against
a whistle-blower must prove that genuine harm has been done, including
in the field of national security;
12.6.3. in the case of a public disclosure, those attacking the
whistle-blower must prove that the conditions for public disclosure
were not met;
12.6.4. the reversal of the burden of proof in the whistle-blower’s
favour also applies in cases of criminal prosecution for defamation;
12.7. avoiding making the protection of whistle-blowers subject
to subjective and unpredictable conditions, such as the whistle-blower’s
purely altruistic motivation, a duty of loyalty to an employer or an
obligation to act responsibly, without any clear and precise indication
of what is expected of the potential whistle-blower; it is essential
for a whistle-blower to be able to have speedy confirmation that he
or she meets the criteria required in order to benefit from the
specific whistle-blowing legislation. While this can be finally
determined only by a court decision, the assessment of these criteria
at the earliest opportunity (especially by the independent authority)
is an important element for keeping the whistle-blower safe;
12.8. granting whistle-blowers the right of asylum, entitling
them in exceptional cases to make their application from their place
of stay abroad; the maturity of the legislation for the protection
of whistle-blowers in their country of origin must be taken into
account; these procedures specific to whistle-blowers could be created
under the auspices of the Council of Europe; in any case, it is
essential to give some thought to the right to asylum in order to
adapt it to the new challenges surrounding whistle-blowers;
12.9. granting, in connection with whistle-blowing, legal privilege
to persons delegated by companies or administrative authorities
to receive reports, the aim being to provide potential whistle-blowers
with guarantees that these persons will if necessary be able to
protect their identity;
12.10. ensuring that persons delegated to receive and follow
up on reports are sufficiently qualified and independent and report
directly to the very top of the corporation or administrative authority
concerned;
12.11. ensuring that the criminalisation of acts involving the
acquisition of information by whistle-blowers is limited to actual
break-ins for the purpose of gaining personal advantage, having
nothing to do with the reporting of information in the public interest;
12.12. gathering and broadly disseminating, in co-operation with
the independent authorities of each country, information on the
functioning of mechanisms for the protection of whistle-blowers
(for example, the number of cases, their duration, their outcomes
and penalties for retaliation), in order to improve assessment of
the functioning of the law in each country and both share good practices
and correct bad ones;
12.13. fostering the emergence in civil society of an ecosystem
that encourages support for whistle-blowers, by drawing, in particular,
on networks of voluntary organisations and the commitment of community
volunteers. This ecosystem is essential in order to overcome the
isolation faced by all whistle-blowers and back them in their efforts,
as well as to bring about changes in national legislation. In the
context of whistle-blowing and the protection of whistle-blowers,
the drafting of legislation together with civil society is a particularly
appropriate approach.
13. The Assembly invites:
13.1. Council
of Europe member States that are also members of the EU to:
13.1.1. transpose, as soon as possible, the directive of the European
Parliament and of the Council on the protection of persons reporting
on breaches of Union law into their national legislation in line
with the spirit of the directive, which aims to set minimum common
standards so as to ensure a high level of protection for whistle-blowers,
including for those who “blow the whistle” on breaches of national
law or threats to the public interest at national level;
13.1.2. put in place, beyond the requirements of the European
directive, the measures proposed in paragraph 11 of this resolution,
especially the creation of independent authorities responsible for
the protection of whistle-blowers in order to form a European network
and firmly embed the logic of whistle-blowing in our democratic
systems, as well as to foster the emergence of civil society players
engaged in this area;
13.2. Council of Europe member States that are not members of
the EU, as well as observer States or States whose parliaments have
partner for democracy status, to revise their relevant legislation
or pass new laws that draw on the proposal for a European directive
and paragraph 11 of this resolution, in order to grant whistle-blowers
in their countries the same level of protection as those from an
EU member State;
13.3. all Council of Europe member States to take a decisive
step towards the protection of whistle-blowers, especially by setting
up a European network of independent authorities whose role will
be to ensure that whistle-blowing and whistle-blowers are accorded
their rightful place in our democratic societies;
13.4. all Assembly members to raise the awareness of their national
parliamentary colleagues concerning the importance of improving
the management of whistle-blowers’ disclosures and giving whistle-blowers
better protection, to share good practices and to carry out their
own appraisal of their laws in order to assess what legislative
progress has been made in this area. To this end, they could refer
to the self-assessment grid contained in the report.
14. The Assembly supports and encourages the appointment of a
general rapporteur on whistle-blowers, who will be able to speak
out on the matter when necessary, for instance in individual cases.