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EU Parliamentary Assembly supports whistleblowers

BACK ON 27 June, the Council of Europe Parliamentary Assembly adopted a recommendation encouraging Member States to provide "adequate protection to whistleblowers" in order to better fight corruption.

The Parliamentary Assembly is a slightly peripheral arm of the EU Council, which is where member states gather to exercise their veto, or not, on proposals from the Commission and Parliament. Its Recommendation does not go further than calling for work "identifying the possible needs of member States with a view to developing the exchanges of experience and co-operation activities required to support legislative reform in the fields of the right of access to information and the protection of whistle-blowers".

This development does, however, offer significant symbolic support for the campaign supported by the European Federation of Journalists and reported by the Freelance in November. The petition for that campaign remains open: see below.

Brussels Branch discussion

IN MAY Brussels Branch of the NUJ heard a presentation from Green MEP and transparency spokesperson Benedek Jávor on progress towards an EU directive to provide EU-wide legal protection for whistleblowers. The Hungarian MEP said that the European Parliament had long called for the European Commission to act to protect whistleblowers.

The Commission had usually argued that EU member states should introduce national whistleblower protection, that they opposed EU-wide protection, and that it would be almost impossible to draft sensible EU legislation. However, Jávor reckoned that over the past year or so the Commission had become more receptive to the idea of a directive, probably because of more public pressure and scandals resulting from cases such as "Luxleaks".

Also, the Commission seemed now to have accepted that EU member state protection was inadequate and too patchy across the EU, with too little progress nationally over the years. Luxleaks and other cases had shown the inadequacy of national laws in the face of cross-border whistleblowing, with potential whistleblowers perhaps being intimidated into silence by not knowing what legal regimes would apply to any leaking.

Jávor also said that the Commission needed to be persuaded that there was a strong EU interest in setting up robust EU whistleblowing protection. For example, he pointed to the high level of VAT fraud across the EU; VAT levels affect payments to the EU, so whistleblowing could have a big effect on the whole EU budget.

The Commission could base a Draft Directive on existing treaty articles, such as those that protect employees, but Jávor said that the Greens favoured some overall legislation that helped implementation of existing treaties. The Greens also wanted minimum levels of protection, which member states could go beyond, but believed that no protection would be better than poor protection. The Greens also want a directive to cover both public and private sectors and multiple whistleblowing channels - including the media, institutions and social media - rather than just "official" whistleblowing agencies.

Jávor said that the Commission had abandoned its claim that it would be impossible to draft an EU directive when the Greens slapped their own draft down on to the table (see here).

However, he was not confident that the Commission would produce a draft directive by the end of 2017, as it has promised. He thought later in 2018 more likely. He was, however, confident that an acceptable proposal (acceptable to the Greens, for example) would get through the Parliament. The stumbling block could be the European Council (of heads of states or governments), bearing in mind that some EU states are hostile to the whole idea. Yet he pointed out that the Council had told the Commission to do something about whistleblower protection.

Jávor also said that at least as important as any legislation would be the political climate and the courts' approach to whistleblowing (and protection of journalists' sources). He said that in his country, Hungary, for example, courts had applied the quite strong protection laws fairly, despite political intimidation.

A group of Green MEPs has set up a "secure leaks" platform (but see our our notes on protecting sources). Jávor said that it was not really the job of MEPs to run such a platform and that strong protection was needed instead. The MEPs, with parliamentary immunity, had used some information received - which has been mainly about member state topics rather than EU institutions.

Jávor did not have a firm position on rewards for whistleblowing. Some Brussels Branch members were against rewards, as whistleblowing should be motiviated by the wish to reveal misdeeds rather than to turn a profit: but Jávor said that compensation should be considered as whistleblowers often suffer financially and could find it difficult to get a new job. Some branch members seemed to find compensation acceptable in theory.

As whistleblowers often suffer badly from their leaking, financially and psychologically, Jávor asked journalists not to forget the whistleblowers when following up leaked information. Many thousands of potential whistleblowers needed to know that they would be supported and protected, he said.