Will Spain become the first European country o transpose the European Whistleblowers Protection Directive?

Through the initiative of Xnet, a member of the Whistleblowing International Network (WIN), Spain is set to become the first EU country to transpose the European Whistleblowers Protection Directive Español

Simona Levi
1 July 2019, 12.01am
Frans Timmermans, First vice-president of the European Commission for better regulation, iand Vera Jourov EU commissioner for Justice, hold a press conference in Brussels. Wiktor Dabkowski/DPA/PA Image

A legislative proposal drafted by Xnet and registered in the Spanish Congress on May 30, 2019 - as soon as the registry opened - following the usual Xnet Do-It-Yourself methodology, was submitted to Parliament on June 13.

The principle behind this methodology is that true democracy is achieved through collaboration - not subordination - of organized civil society with the citizens’ representatives in the institutions. The draft bill had the initial backing of the deputies who had committed themselves before the elections to support it.

This proposed bill, if passed, would make Spain the first country in the Union to apply the European Whistleblowers Protection Directive, which gathered a broad all-group consensus in the European Parliament last April (591 for, 29 against, 33 abstentions).

MEPs Virginie Rozière, rapporteur for the Directive (Socialists & Democrats), and Eva Joly (The Greens/European Free Alliance) are among the representatives and international organizations supporting the Xnet proposal [see list at the end].

Last April, Xnet welcomed the approval of the European Whistleblowers Protection Directive, the content of which it considers in many aspects its own for it includes many of the amendments it submitted during the drafting and shows the impact of the pressure exerted by the international organizations which Xnet belongs to.

The definition of whistleblower, closely related to the concept of public interest; the recognition of the possibility for his/her anonymity; the prevention of data protection or business secret misuse to invalidate evidence of abuse; and freedom of choice regarding the channels used for denunciation, are some of the main amendments made by Xnet which were included in the final draft of the Directive that was submitted for the rapporteur’s approval.

The Directive and, consequently, the proposed bill under consideration by the Spanish parliament constitute a turning point in the recognition and legal protection of the figure of the whistleblower in Europe. From now on, he/she is endowed with a strong cross-cutting legislation, which benefits not only the fight against fraud and corruption, but also against abuse in all public-interest areas: healthcare, the environment, justice, democracy, consumer protection... This is a spectrum especially relevant for countries where whistleblowers have not enjoyed previously any kind of protection and which, at the same time, suffer from high levels of corruption.

The Directive encompasses both the public and private sectors.

Even though denouncing irregularities is essential to protect the public interest and to preserve accountability and integrity in the public and private sectors, whistleblowers do so at a high personal risk. Reporting abuse should not be a heroic act. It should be part of everyday normality - normality assumed to such an extent that its deterrent effect would make it almost unnecessary. But 70% of corruption cases are unveiled by people who experience retaliation and persecution afterwards.

Anonymity is the strongest, most democratic protection that can be offered to a whistleblowing citizen, as recognized by different provisions of the Spanish legal system

This is why a law is needed that can correct the force asymmetry between citizens on the one hand and institutions or corporations on the other, which makes it impossible for people to comply with their duty as citizens to sound the alarm about crimes and improper behavior, irregularities and illicit activities affecting the public interest without having to fear reprisals as a result.

Xnet's proposed Comprehensive Whistleblowers Bill keeps to the most demanding international standards. It has been drafted taking into rigorous account other countries’ experiences on the one hand and, on the other, adapting the elements of the European Directive and delving into aspects related to its national transposition.

Among them:

1 - In the first place, an extremely innovative legal solution proposed by Xnet which emanates from the spirit of the Directive and is based on its own experience in fighting corruption and deploying mailboxes which citizens can use to "leak" signs of systemic abuse in a safe, anonymous way: the distinction between denouncing and warning, which is a key aspect in the legal characterization of the whistleblower. This law wants to go beyond articles 259 and 264 of the Spanish Criminal Procedure Act, which contemplate a distributed responsibility regarding the protection of the public interest, and correct the difficulty in complying with this, considering the whistleblower's exposure.

Under the new law, the institutions that are responsible for investigating ex officio "public crimes" - that is to say, crimes that affect the public interest - will only require the Notitia Criminis to act. They will not need to expose ordinary citizens in order to fulfill their duty.

2 - The extension of legal protection to warning facilitators - that is, natural or legal persons such as citizen platforms, NGOs or media that allow the whistleblowers’ warning to surface - without prejudice to the right to information and to professional protection. The experience of Xnet with people it has helped and the information it has unveiled is that institutional channels often do not work properly and other channels are required so that the information can be effective on time.

Let us hope that the Spanish parliament will raise up to the opportunity to pass the law and take the lead in this key issue for rights in the European Union.

3 – In order to correct this systemic deficiency, the thoroughness of the warning channels is reinforced through Xnet's pioneering experience consisting in placing Warning Mailboxes in institutional premises - the one in Barcelona City Hall was the first local government anonymous mailbox using Tor anonymity technologies. This experience, carried out with Xnet’s collaboration, is being reproduced in Spanish institutions such as the Anti-Fraud Agency in Valencia and is about to be deployed at the National Commission of Markets and Competition (CNMC).

Anonymity is the strongest, most democratic protection that can be offered to a whistleblowing citizen, as recognized by different provisions of the Spanish legal system, international organizations such as the UN, and now also the EU Directive. This is why the Xnet proposal under consideration by the Spanish parliament describes the characteristics of the channels that guarantee this protection and details the tough penalties that the channels (institutional or otherwise) which call themselves anonymous but are not really will be facing.

4 - The only point in which the initial ambitions have had to be scaled down is the constitution of the Independent Agency. The original intention was to create a Specialized Court, such as the one that has been created in Spain to deal with gender violence. In the end, this possibility proved to be overly ambitious and was ruled out for it would have implied the modification of organic laws.

Let us hope that the Spanish parliament will raise up to the opportunity to pass the law and take the lead in this key issue for rights in the European Union.


Persons and international organizations supporting Xnet's proposition:

Whistleblowing International Network (WIN) - Anna Myers

The Signals - Delphine Halgand

Blueprint For Freespeech – Suelette Dreyfus

Government Accountability Project – Tom Devine European Center for Whistelblower Rights - Mark Worth

Eva Joly – Anticorruption, magistrate and former MEP

Protect – Francesca West

The Ethicos Group Australia - Howard Whitton

Renewable Freedom Foundation - Moritz Bartl

WeMove Europe

Transnational Institute – Fiona Dove

Homo Digitalis – Eleftherios Chelioudakis

Debt Observatory in Globalisation (ODG)

Cristina Flesher Fominaya - Social Politics and Media, University of Loughborough

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