On Wednesday 4th of May, Libera Brussels attended at the European Parliament the presentation of the new directive which disciplines the whistle-blowers’ regulation.
Article by Vania Putatti
“The European Union legislation has several problematic concerns when it comes to its criminal law regulation (for those who are following the development of anti-corruption and anti-criminal organization policies this point is quite clear). In few words, different legislations and different law regimes give many opportunities to commit several sorts of crime or illegal behaviours, varying from fraud to corruption, from clienterism to budgetary “wastes”.
As the volume of crime gets higher, it tends to get easier to avoid getting caught. The are many reasons to explain this phenomena, we can mention some such as the lack of transparency norms, institutionalised secrecy, different national juridical systems, huge financial resources and so on.
As Julia Reda (Greens/EFA) remarked, we do not live in a perfect democracy and it is utopian to believe that we can create a perfect democracy, but we can work to reduce the threats to the public interest.
In this case, the protection of whistle-blowers consists in a powerful weapon against all form of corruption because it allows passing through the obstacles mentioned above by fighting the problem from inside.
When we talk about whistle-blowers, we talk about a person whodiscloses information on an act that affects (or potentially affects) the public interest. Whistle-blowers are individuals that are involved in an (illegal) activity without willing to carry it on. Instead, they want to report the problem, but at what price? The disclosure of “sensitive” information endangers whistle-blowers’ careers, reputation and privacy, or causes strong criminal prosecution for exposing or attempting illegal behaviours. In other words they are extremely exposed to retaliation.
Surprisingly (or maybe not), most European countries tend to avoid the proper protection of whistle-blowers. Many countries have negative perceptions of these individuals, considering them more as snitches than corruption-fighters. Other countries consider that whistle-blowers could have ulterior motives that would be hard to detect (i.e.: secret alliance with political or business enemies) and hard to believe.
Because of this in many EU countries whistle-blowers have none or only partial protection. To be more precise, only four countries in the EU have a proper and effective policy on this issue (Luxembourg, Romania, Slovenia and United Kingdom) and seven countries provide none or very limited legal protection for whistle-blowers (Bulgaria, Finland, Greece, Lithuania, Portugal, Slovakia and Spain).
As Carl Dolan (TI EU) observes, while the reasons around the argumentation mentioned above could be understood, the fact thatwhistle blowing could prevent scandals and/or disasters (includingdeaths), is a fact that does not have to be underestimated. In the past, whistle-blowers could have saved lives, money and time, and all effort should be put into properly using this importanttool.
The result of a few years of political debates and pressure of several anti-corruption entities, such as Transparency International or Libera and side campaigns such as Restarting the Future, has lead to the elaboration of the first draft of the directive for “whistle-blowers protection in the public and private sector in the European Union”.
On the basis of the art.4(2)(b) of TFUE, in conjunction with the art. 151 and 153(2)(b) of TFUE, and with all the support of the United Nations, the Council of Europe and the OCDE, the European Commission initiative of legislation acknowledges the issue of whistle-blowers’ protection. The draft includes the exemptions from criminal proceedings related to the protected disclosure, exemptions from civil proceedings and disciplinary measures, and prohibitions of other forms of reprisal, including inter-alias dismissal, demotion, withholding of promotion, coercion, intimidation, etc. The directive also foresees that the whistle-blower must be granted anonymity and confidentiality in their protected disclosure”.