Can Europe Make It?

The elusiveness of whistleblower protection across Europe

It is important to interpret the ECHR in an open manner and draw from the European Commission draft directive, as well as European and international non-binding commitments on whistleblower protection.

Grace Favrel
25 June 2018

Antoine Deltour and his lawyers Philippe Penning and William Bourdon at the Criminal Court of Luxembourg, May, 2016. Wikicommons/Ato Grosso. Some rights reserved.In an era where there is an ever-growing thirst for transparency and accountability, whistleblowers who expose threats or harm to the public interest are increasingly important.

Nonetheless, they continue to face retaliation including prosecution, loss of jobs, intimidation, physical assaults and forced exile around the world.

Moves to ring-fence secret spheres in Europe pose an additional threat to the protection of whistleblowers. Indeed, the European trade secrets directive, laws protecting national security, and national case-laws on confidentiality of investigations imperil freedom of expression and the capacity of individuals to blow the whistle when they witness wrongdoings that impact the welfare of the general public.

In this context the Court of Appeal decision of May 25, 2018, acquitting Antoine Deltour of all charges pertaining to the disclosure of a widespread tax avoidance scheme in Luxembourg, known as Luxleaks, is laudable.

Despite this commendable legal outcome,  the long criminal procedure that Antoine Deltour endured threw into relief the many loopholes in the Luxembourg whistleblowing protection system and highlighted the weaknesses of domestic whistleblowing legislation within Europe. These legislations are all too often insufficient to shield whistleblowers.

Weak national whistleblowing legislation

First and foremost, the case revealed that whistleblower protection is often challenged by questions about entitlement to claim protection.

Most laws are overly narrow and limit protection to certain forms of wrongdoing, most preeminently corruption. For instance, in Luxembourg, the protection only applies to disclosures made in relation to corruption, influence peddling and illegal conflicts of interest. A good practice, however, is to extend protection to all forms of actions or threats against the public interest, including issues related to health, environment and infringement of privacy rights. A good practice is to extend protection to all forms of actions or threats against the public interest, including issues related to health, environment and infringement of privacy rights.

Furthermore, most domestic laws require the disclosure to be made in the workplace. This approach goes against Article 33 of the United Nations Convention against Corruption, which does specifically stipulate "that any person who reports in good faith and on reasonable grounds" should be protected.

French legislation provides an example of good practice in this regard. Under French legislation, a person can have encountered the information anywhere, so long as he or she “became personally aware” of the reported wrongdoing.

In the same vein, laws rarely protect public disclosure. In many countries, an individual can only disclose information through dedicated internal mechanisms. Yet in some cases, internal reporting is not sufficient to put an end to wrongdoing. In fact, when important interests are at stake, there is a risk that wrongdoing will not be addressed properly or will even be covered up. A strict prohibition of public disclosure may thus prevent serious harm or threat to the public interest to surface or force whistleblowers to face grave consequences.

The exclusion of disclosures involving matters of national security or official secrets is another point of concern. While it is important to take into consideration the sensitive nature of some information, given recent moves across the globe to broaden the scope of classified information, there is a risk that such limitation will amount to a shrinkage of information pertaining to government decisions and undermine public scrutiny on related issues.

A better approach would be to put in place mechanisms that strike a balance between national interest and accountability and take into consideration the significance of the information disclosed to the public interest. Transparency International recommends the adoption of special procedures that would permit internal disclosures, disclosures to an autonomous oversight body that is institutionally and operationally independent from the security sector, or disclosures to authorities with the appropriate security clearance.

The need for European standards for protection

The Luxembourg case stressed the necessity of a European legislation that will integrate the case-law of the European Court of Human Rights (ECtHR) as well as the principles set out in various European non-binding instruments.

As many domestic legal frameworks remain weak, the ECtHR case-law is often the only protection available to whistleblowers reporting wrongdoings taking place in Europe. Yet the failure of Luxembourg first and second instance courts to protect Antoine Deltour on the ground of the European Convention of Human Rights is evidence of the shortcomings of the Strasbourg Court case-law.

Since the Guja vs Moldova case 2008, the European Court has set out a test comprising of six criteria to establish entitlement for whistleblower protection under article 10 of the Convention. At the heart of the test are the principles of necessity and proportionality. Consequently, public disclosure is protected, but only when there is no other reporting avenue available.

Among the six criteria, the notion of good faith is highly controversial. Indeed, it is construed by the Court of Strasbourg as requiring that whistleblowers have no motives other than that of the public interest. Thus, it fails to protect individuals with personal or multiple motivations, as is often the case. It fails to protect individuals with personal or multiple motivations, as is often the case.

Consequently, there is a need for the adoption of European standards for protection that will build on the ECtHR case-law. The March 2018 -EU Commission proposed a directive to strengthen whistleblower protection across the EU. This is a positive development. More protective than the ECtHR case-law in many respects, the proposed law does not look at the motivations for disclosure to determine whether or not a whistleblower should be protected. Furthermore, under the new law, private and public sector have an obligation to put in place internal reporting mechanisms while competent national authorities have an obligation to establish external reporting mechanisms. In accordance with the Court of Strasbourg, the directive offers protection to public disclosure, when used as a last resort.

On the material scope, however, the proposed directive should align to the ECtHR case-law. Not only should it protect disclosure about breach of law or abuse of law but also any information that is of public interest.

Looking beyond the proposed EU commission directive

The EU Commission proposed directive is certainly a good starting point, albeit limited in its scope. It should be adopted and completed with other legislation. Nonetheless, before the proposed directive becomes a legally binding piece of legislation, and on matters falling outside its mandate, it is important, to interpret the ECtHR case-law in an open manner and draw from the proposed directive, European and international non-binding commitments such as the Tshwane Principles on National Security and the Right to Information. Failing to do so, the protection guaranteed to whistleblowers across Europe will remain an illusory protection. In such a context, whistleblowers should not be encouraged to come forward.

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