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The European Whistleblowing Directive is full of nuances — rights are tightly bound to obligations, and high-profile cases will not be easily resolved. That means that Panama Papers, LuxLeaks would still take years to investigate (with different consequences for whistleblowers). Nonetheless, the EU significantly strengthened whistleblowers rights, and we already can make some conclusions on what to expect and how to report on misconduct. We've answered the most common questions about the Whistleblowing Directive and whistleblower rights for protection — this can help grasp a general idea of new regulations in the field.
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1. Who are whistleblowers? Who can qualify as a whistleblower?
Whistleblowers are persons who disclose information they obtained in a work-related context — their report identifies a threat to public or personal well-being. Persons who report with good intentions and believe that the information they provide is valid qualify as whistleblowers. Without the whistleblower's contribution, the data may remain hidden.
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2. When does the EU Whistleblowing Directive enter into force?
The Directive should be implemented in the national frameworks by the end of 2021 — for whistleblowers, it means their rights will be fully enhanced only in 2022. That shouldn't stop whistleblowers from reporting, since most EU member states already have whistleblowing regulation in place. Check our #law section to know more about a specific country regulation.
3. Who is obligated to follow the Directive?
Every company, regardless of the size, is encouraged to follow the good practice of corporate compliance, but the obligation is only on the companies with more than 50 employees. The EU Whistleblowing Directive covers both the private and public sectors. Those companies operating in banking and finances are subject to additional regulations which are way stricter.
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4. Can the whistleblower stay anonymous?
A whistleblower has the right to be anonymous. However, this option may not be realized in certain countries. Each member state has the right to decide whether anonymous complaints will be assessed — so far, only a few countries have allowed anonymity.
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5. What if we work outside the EU, does the Directive still apply?
The Directive has to be considered if the company is closely cooperating with a European country. The main concern will be data processing and confidentiality — any data breach may result in legal proceedings and financial losses.
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6. What is the penalty for retaliating to the whistleblower?
The penalty can go up to millions of euros depending on the type of retaliation. What can be said for sure is that the current highest penalty is for disclosing whistleblower's identity and breaching data privacy rules.
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7. Does the Directive protect whistleblowers against discrimination?
Yes, and not only. WB Directive's scope is extensive and covers all types of workplace discrimination, work safety, harassment, freedom of expression, right to information and more. With the new regulation, whistleblowers can finally report both public importance issues (money laundering, human trafficking, terrorism) and personal concerns.
8. Can whistleblowers disclose the information related to the trade secret?
Yes and no. The tricky part of the WB Directive is precisely about the ways the whistleblower can obtain information and use it legally. If the whistleblowers used the information to which they usually don't have access, protection still applies. Only if the whistleblower committed a criminal offense to obtain the information, whistleblowers will not enjoy protection. Nevertheless, all the cases will be considered individually by the court. As long as the information is related to public safety, the court will be on the whistleblower's side.
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9. Do whistleblowers get legal aid free of charge?
Whistleblowers are entitled to get the legal assistance under Directive (EU) 2016/1919 and Directive 2008/52/EC. Depending on the whistleblower's case, the person can receive additional financial support and compensation for discrimination and retaliation.
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10. Can the accused person get the information on the investigation and the whistleblower based on 'access to information'?
Despite the common misconception that whistleblowers get a substantial advantage over their employers, employers are equally or nearly equally protected. The accused person can't get the whistleblower's data, but should be informed about the investigation and has the right to reputation protection. Whistleblowing also happens to be malicious, so employers also enjoy protection from reports made in bad faith and resulting in financial losses (due to the reputation damage).
Couldn't find an answer to your question? Ask us, and we'll cover it in the future whistleblowing law FAQ's.
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