August 8, 2017
Whistleblowers provide a critical checking function in ensuring accountability, fighting corruption and protecting the public interest as they have direct access to valuable information and insights of their organisations. This role is widely recognized by EU institutions and discussions are ongoing for possible EU wide legislation on whistleblower protection. This blog examines whether EU agencies are also following this increased trend for whistleblower protection.
By Vigjilenca Abazi
Recognising the value of whistleblower protection
A series of different initiates have taken place in the European Union in the past year with regard to possibly enacting a dedicated EU law on protection of whistleblowers. In May 2016, the Greens/EFA of the European Parliament presented a draft Directive text on whistleblower protection with the aim to encompass protection for workers both in the public and private sector. In June 2016, the EU Trade Secrets Directive entered into force that foresees whistleblowing as an exception to the legal regime on the protection of trade secrets. In its Working Programme 2017, the European Commission indicated that a legislative act on whistleblower protection would possibly be proposed after examining the legal issues with regard to the EU’s competences in this field. Since March 2017, the Commission opened a public consultation process for a possible legislative act on whistleblower protection applicable across all member states and a few months later the European Parliament’s Committee on Legal Affairs issued a draft report on this matter.
Current fragmented EU regime
These initiatives take place against the background of fragmented rules on whistleblower protection both at the national and at the EU level. For the latter context, the 2014 revised Staff Regulation stipulates protection for whistleblowing and obliges the EU institutions to adopt rules for protection of whistleblowers.
Yet, at the EU level there is a patchwork of standards for protection resulting from the fact that each EU institution has the discretion to adopt its own more specific rules. One such important difference of standards is the scope of protection provided for whistleblowers. For example, whereas the Commission’s rules only refer to ‘internal’ whistleblowers and treat protection of external whistleblowers as a matter of national law, the rules of the European Court of Auditors apply to internal whistleblowers and also to ‘economic operators participating in procurement procedures, as well as to contractors and their staff’.
In addition to fragmented rules, it seems also unclear which rules apply for individuals working at the varied bodies and agencies in the EU. The question arises what protection is provided for whistleblowers by EU agencies which play a very significant role in a broad range of policies including in law enforcement, asylum support or pharmaceutical regulation and hence disclosure of possible wrong doing is of paramount significance.
EU Agencies and Whistleblower protection
The starting point for examining which rules apply for individuals at EU agencies are the Staff Regulations as Article 1A therein stipulates their applicability to officials of agencies. The Staff Regulations define a whistleblower as any official who, in the course of or in connection with his or her duties, becomes aware of facts which give rise to a presumption of the existence of possible illegal activity, including fraud and corruption, detrimental to the interests of the Union, or of a conduct relating to the discharge of professional duties which may constitute a serious failure to comply with the obligations of officials of the Union, and who reports those facts to his institution and/or to the European Anti-Fraud Office.
Beyond this broader protection, it seems that most EU agencies do not have specific set of rules that provide for clear channels of reporting and offer procedures and safeguards for whistleblowers. It is even questionable to what extent this issue is being examined in EU agencies and whether dedicated policies for protection of whistleblowers is deemed necessary. Yet such policies are highly important especially when taking into account previous cases in which EU agencies did not provide sufficient attention to reports by their staff of alleged harassment of whistleblowers, as the case concluded by the European Ombudsman regarding the Fundamental Rights Agency illustrates.
If whistleblower protection is taken seriously in the EU -in addition to discussions on possible legislative acts for protection of whistleblowers in the member states- the policy debate should also focus on ensuring protection and clear reporting channels at the EU level for individuals working in different capacities at EU agencies.
Vigjilenca Abazi is assistant professor of EU law at Maastricht University and research coordinator of the Centre for European Research in Maastricht.Author : TARN