EU Whistleblower Protection Directive: 2 years to get ready for the new reporting rules

The new important EU Directive on Whistleblower protection (2019/1937) of 23 October 2019 gives the Members States two years, until 17 December 2021 to transpose its provisions into national law. The main goal of the Directive is to introduce a harmonised procedure to deal with whistle blowing and to offer whistle blowers a certain level of protection against retaliation.

The provisions of the Directive aim to protect whistle blowers who report breaches of Union law concerning the following areas: public procurement; financial services, products and markets, and prevention of money laundering and terrorist financing; product safety and compliance; transport safety; protection of the environment; radiation protection and nuclear safety; food and feed safety, animal health and welfare; public health; consumer protection; protection of privacy and personal data, and security of network and information systems. This list does not include any employment legislation, but the Directive allows the Member States to extend the protection offered and recital 21 states that the Directive should not affect the protection afforded to workers who report breaches of Union labour law. Furthermore the Directive clearly states that it does not affect national rules on the exercise by workers of their rights to consult their representatives or trade unions, and on protection against any unjustified detrimental measure prompted by such consultations as well as on the autonomy of the social partners and their right to enter into collective agreements.

The Directive is applicable to companies of 50 or more employees and municipalities with more than 10.000 inhabitants and provides protection to a wide scope of persons working in the private or public sector who acquired information on breaches in a work-related context irrespective of the fact that they are employees, self-employed, freelance or civil servants.

The Directive demands the introduction of an internal reporting procedure to deal with whistle blowing in order to prevent direct leaks to the public or press. In this way, companies are obliged to confirm the receipt of a complaint within seven days and will have to give feedback to the reporter within three months. Also external reporting processes to the authorities have to be made clear and easily accessible (by the Member States) and finally reporting publicly (to e.g. the media or online) is addressed as a possibility when the reporters have reasonable grounds to believe that there is an imminent or manifest danger to the public interest or a risk of irreversible damage.

Most interestingly, the Directive offers a protection for whistle-blowers against any form of retaliation, including dismissal, negative evaluation, suspension, demotion, discrimination etc. This protection is awarded to reporters even if they reported anonymously (and were later identified) or if they had reasonable grounds to believe that the information was true at the time of the reporting (even when it turned out to be incorrect). Companies and authorities also have a duty of confidentiality relating to the identity of the reporters.

Although the implementation deadline of the Directive is still two years away, companies can already start to prepare the introduction of their reporting procedures. However, for companies of 50 to 249 employees, the rules will only apply from 17 December 2023 onwards.

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