Santoro, D and M. Kumar, A Right to Protection of Whistleblowers. 2018
The EU has been at the forefront of the anti-corruption battle. Through its wide-ranging legislation, it has attempted to control corruption of different kinds. An obvious blindspot in the EU member states is, rather surprisingly, the lack of comprehensive regulations on whistle-blowing protection. This despite the fact that the EU is committed to fighting corruption at all levels, and the role of whistle-blowing in combatting corruption and fraud is now widely acknowledged and accepted. It is only when the EU and its member states provide a wider safety net and protection against personal and professional retaliation that individuals are more likely to come forward with public interest disclosures.
The proposed agreement, which should be signed in May 2019, provides for clear guidelines on establishing safe reporting channels for whistle-blowers, establishes employer obligations, and guarantees the prevention of retaliation and effective protection. Whistle-blowers would also get effective legal, financial, and psychological support. This provisional agreement is a product of long negotiations and advocacy by civil liberty groups, civil society and international organizations that have maintained pressure on the EU. The first attempt at an agreement in April 2018 undermined the main goal of the initiative: it exempted from protection those whistle-blowers who failed to report the disclosure internally before resorting to external disclosures. In March 2019, UN Special Rapporteurs called on the EU negotiators to strengthen the bill; this has now been accepted.
The new EU initiative aims at better protecting whistle-blowers under a wide range of EU laws, including anti-money-laundering, corporate taxation, data protection, environmental protection and nuclear safety. Member States are free to extend these rules into their own legislation. Though they are not compelled to provide for penalties, they are encouraged to establish comprehensive frameworks.
A great step forward in EU legislation
The current move is a great step forward in accepting the critical role of the whistle-blowers in a democracy. This comes in contrast to the earlier stance of the EU institutions. According to the Transparency International European Union Integrity System report, only one of the EU institutions (the European Commission) has a mechanism in place for whistle-blower protection1. Yet these institutions have since 2004 been legally obliged to have these mechanisms in place.
The EU has been at the centre of criticism for its stance on whistle-blowers. Up until now, there has been no comprehensive European legal framework. Many individuals who have reported fraud have faced threats to their personal safety and their professional reputation. One of the famous examples is that of Antoine Deltour who became known for his role in the LuxLeaks case. After revealing a company tax evasion system, in 2012, he was given a 12-year prison sentence in 2014 by the Luxembourg court of justice. He was finally released in 2018 after the case caused a huge uproar in Europe and worldwide, drawing attention to the plight of the whistle-blowers. This was a pivotal case in the struggle for the rights of whistle-blowers at the EU level.
Current regulations are patchy
Apart from the EU-level initiative, EU member states have so far not shown much enthusiasm for incorporating tough protection for whistle-blowers into their national legislation. A comprehensive survey of existing legislation was carried out by the project ‘A Change of Direction. Fostering Whistleblowing in Europe in the Fight Against Corruption’. In the survey, EU member countries were assessed in relation to nine criteria relative to whistleblowing: proper definition of the key terms, provisions for protection against retaliation, provision for compensation in the case of retaliation or provisions for anonymous disclosures... The survey report also assessed the member states based on whether or not the whistle-blowing law required companies and state and non-state institutions to educate their employees about the possibility of disclosure when they see wrongdoing in their own organizations .
According to these criteria, countries were categorized as having comprehensive, partial, or no legislation. According to the survey, up to 2017, only 8 out of the 28 member countries had comprehensive legislation and 7 of the 28 member states did not have even partial legislation. Partial legislation was considered dangerous because it led to vagueness with respect to the legal standing of the whistle-blower. By not defining the proper terms for disclosure, or by making anonymous disclosure impossible, partial legislation, like no legislation, ends up removing incentives for whistle-blowing.
Worse still, seven EU countries did not fulfil any requisites identified by the report. Only four countries (France, Ireland, Malta and the UK) score more than 50 per cent. Ireland scores the highest at 66.7 per cent. Out of the 28 countries, only 9 have a designated public agency to oversee whistle-blower issues.
Whistle-blowing protection in the EU’s interests
Why is it so hard to protect whistle-blowers, when what they are doing can help fight corruption? It is not difficult to understand why whistle-blowing protection has not been top of the agenda for legislators so far. It is only recently, with so many whistle-blowers in the limelight due to media vigilance, social media vibrancy and civil society space, that governments in the EU have started to take note of whistle-blowers.
There are good reasons for the bottlenecks that are created in the path of legislation. Whistle-blowing challenges the informational asymmetry that allows corruption to flourish. It ensures accountability of public officials and corporate agents. As we explain in the first article, one of the ways in which power is manifested and maintained is through its opacity. The more the affairs of those in power are invisible to the public, the more they can wield their power and control the population. Transparency poses a threat by enabling citizens to take a peek at the way power works. Obviously, those in power will resist disclosures that expose their acts of corruption, their subversion of public institutions to serve private interests.
Political philosophers Daniele Santoro and Manohar Kumar argue in a paper ‘A Right to Protection of Whistleblowers’, that whistle-blowers play the role of human rights defenders and should be accorded the same protection that is extended to the latter. Legislation to protect whistle-blowers signals EU commitment to protect whistle-blowers, to ensure transparency, publicity, and accountability. It also demonstrates the commitment to protection of freedom of speech and human rights, given the fact that most disclosures involve cases of human rights violations. Such legislation will also reduce economic losses from corruption and increase trust in the functioning of democratic institutions. It will serve as an example to be replicated by institutions and countries worldwide; the EU has the opportunity to become a leader, and a beacon of whistle-blower protection for the whole world.
With the new proposal, the EU has signalled its resolve to correct institutional deficits that pertain to whistle-blower protection. This resolve needs to be matched by member states’ willingness to apply the protection firmly. This will signify that the EU and member states stand firmly behind those who risk everything to stand up for the truth and to fight for people’s rights.
Manohar Kumar currently serves as Head & Assistant Professor (SSH) of Political Philosophy at the Indraprastha Institute of Information Technology in Delhi. Previous to that he was a postdoctoral fellow at the Aix-Marseille School of Economics (AMSE). Claire Lapique is a scientific journalist at AMSE.
Photos © Randy Colas, Jefferson Santon, Marcus Spiske on Unsplash
Reference : Santoro, D and M. Kumar (2018). A Right to Protection of Whistleblowers. In Archibugi, D and A Emre Benli Claiming Citizenship Rights in Europe, 83-121, Routledge, London.