Whistleblowers: New Protection Rules Within The EU

Author:Ms Anaëlle Idjeri
Profession:Soulier Avocats

The recent Panama Papers and LuxLeaks scandals have illustrated the urgent need to establish legislation to protect whistleblowers, as their revelations have raised awareness of the serious breaches of EU law - particularly harmful to the public interest - and of the precariousness of their status.

The entry into force on December 16, 2019 of Directive 2019/1937 of October 23, 2019 on the protection of persons who report breaches of EU Law is a major step forward in encouraging Member States to go beyond the common minimum standards by creating a harmonized framework within the European Union to provide effective protection to whistleblowers.

While in France and in about ten other EU Member States, a comprehensive protective legislation for whistleblowers already exists[1], the Directive represents a major step forward as it enables the European Union to establish a general framework to protect persons - working in the private or public sector - who have obtained information on breaches of EU law in a professional context.

The Directive is indeed intended to apply to breaches of EU law concerning in particular the fight against money laundering, product and transport safety, health protection, the environment as well as the protection of consumers, privacy and personal data.

However, to enjoy protection under the Directive, reporting persons must (i) have reasonable grounds to believe, at the time of reporting, that the matters reported by them are true, and (ii) comply with the established procedure.

As such, the Directive provides for the establishment of internal and external "reporting channels":

"Internal reporting channels": Member States shall ensure that legal entities in the private and public sector establish such channels. These channels should enable (i) the secure receipt of information by ensuring the confidentiality of the identity of the reporting person and any third party mentioned in the report, (ii) the acknowledgment of receipt of the report within a period of seven days, and (iii) the designation of an impartial person or department competent for following-up on the reports; "External reporting channels" (that may be used by whistleblowers as a complement to, or as a substitute for, internal reporting channels): Member States shall designate independent...

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