This section describes the campaign by whistleblowing advocates that has influenced the EU Whistleblowing Directive (2019/1937). Figure 1 presents a timeline for that campaign and thus, for the ‘coming about’ of the EU Whistleblowing Directive.
In October 2016 a campaigning platform is launched by Eurocadres, a union for people in management positions, together with other unions in Denmark, France, Spain, and ETUC. This platform would later expand to include unions in other European countries as well as civil society organizations campaigning for whistleblower protection (e.g. Transparency International, WIN, Blueprint for Free Speech) and the European Federation of Journalists (EFJ). I attended that inaugural meeting and became part of the email listserv of the platform.
In February 2017, the S&D group tabled a ‘Resolution on the role of whistleblowers in the protection of the EU’s financial interests’ (2016/2055(INI)), calling the European Commission (EC) to work on a EU Directive on whistleblower protection. In October 2017, it tabled another resolution, now ‘on legitimate measures to protect whistleblowers acting in the public interest when disclosing confidential information of companies and public bodies’ (2016/2224(INI)).
The email listserv of the platform became very active in January 2018. The EC, more precisely DG JUST was working on a justification study for the EU Directive and needed to be lobbied. That justification study was published in April 2018, along with a proposal for a Directive. What followed was a hectic year of lobbying Commissioners, MEPs, EP advisory committees (such as AFCO, EESC, JURI), and ministers at national level, launching petitions, open letters and holding press conferences. All of this was planned and strategized on the listserv. The platform also held meetings in Brussels, which were announced on the platform. Since many of its members could not attend these meetings, minutes of the meetings were also posted on the listserv.
On 15 April 2019, the EP voted-in the EU Directive on whistleblower protection with an impressive majority. This was an amended version of the proposal the European Commission had tabled a year earlier. The campaigning platform believed it had succeeded in significantly improving the Directive. The Directive entered into force after publication in the Official Journal of the European Union on 26 November 2019, as the ‘Directive (EU) 2019/1937 of the European Parliament and of the Council of 23 October 2019 on the protection of persons who report breaches of Union law’.
The research for this paper consists of a document analysis of the two resolutions tabled by S&D in 2017, the EC proposal text for a Directive of April 2018, the actual voted-in text of the Directive of April 2019, and listserv emails of the campaigning platform between January 2018 and April 2019. The document analysis focused on the positions lobbied for by the campaigning platform and how successful these efforts were in establishing freedom in relation to whistleblowing in the EU. The two resolutions from 2017 can be seen as the starting point. The EC proposal from April 2018 is the mid-point, and the final EP text of April 2019 the end-point. The listserv emails contain the debates and struggles faced by the campaigning platform.
The listserv data includes 206 posts made between January 2018 and May 2019. The data provides insights into the strategies of lobbying and the dynamics of collaboration between unions and civil society organizations. It should not be surprising that the conversations on the listserv at times suggest differences in interests and agendas. However, in this paper we focus on two issues the campaigning platform fought for: (1) the material scope of ‘public interest’, and (2) the three-tiered approach to protected disclosure. I present a chronology of that struggle for each of these topics in turn.
Whistleblower protection legislation delineates a ‘material scope’ of wrongdoing for which disclosures are protected. That scope is typically called ‘public interest’, at least in English. Thus disclosures are protected when they are deemed to be a ‘public interest disclosure’. This scope has tended to be restricted to fraud and corruption (Vandekerckhove 2006), and whistleblowing campaigning groups have consistently argued for a widening of that scope. In recent legislation (e.g. in France, Ireland, Serbia) that has been quite successful. In the case of the EU Directive, the scope of public interest was also a site of struggle.
The first resolution (February 2017, 2016/2055(INI)), had the title ‘on the role of whistleblowers in the protection of EU’s financial interests’. The term ‘public interest’ was mentioned twice. The second resolution (October 2017, 206/2224(INI)) had the title ‘on legitimate measures to protect whistleblowers acting in the public interest when disclosing confidential information of companies and public bodies’. The inclusion of the term ‘public interest’ in the title of the resolution is a significant shift, in the sense that it makes clear what the agenda is, i.e. this is a call to make the whistleblowing a legitimate exception to secrecy. It is the public interest that justifies exceptions, and that public interest is wider than merely financial interests. It is also noteworthy that the word ‘freedom’ is not mentioned in the first resolution, but ‘freedom of expression’ is mentioned in six different sections of the second resolution. That in itself is a departure from the clear separation in the Trade Secrets Directive between on the one hand ‘freedom of expression and information’ and on the other hand ‘whistleblowing’. The two are from now onwards inextricably linked.
Now over to the European Commission’s justification study for an EU Directive. One of the considerations the European Commission (EC) needs to make in its justification relates to the question of subsidiarity. That means that there must be a good reason why legislating on an issue cannot be left to the Member States. More concretely, the EC needs to identify a ‘legal base’, i.e. specific article in the Treaty on the Function of the European Union (TFEU) on which variation in the Member State legislation would undermine the functioning of the European Union. The justification study published in April 2018 includes a cost/benefit analysis for four options: (1) status quo, (2) a Commission Recommendation (non-binding), (3) a Directive on whistleblower protection in the area of financial interests of the EU, and (4) a Directive on whistleblower protection in certain areas of EU Law. The justification study opts for option 4, i.e. the broadest one in material scope.
More precisely, the EC proposal for a Directive sets out as material scope: personal data (Art 16 TFEU), customs cooperation (Art 33 TFEU), agricultural policy (Art 43 TFEU), freedom of establishment (Art 50 TFEU), recognition of diplomas and other formal qualifications (Art 53(1) TFEU), transport policy and safety (Art 91 TFEU), transport by rail, road, and inland waterway (Art 100 TFEU), State aid (Art 109 TFEU), internal market (Art 114 TFEU), health (Art 168 TFEU), consumer protection (Art 169 TFEU), tariff (Art 207 TFEU), combatting fraud (Art 325 TFEU). That means that disclosures about wrongdoing relating to any of these could be regarded as ‘public interest’ and thus protected disclosures.
In May 2018, the platform prepares its first shot at the EC proposal. The coordinating union puts forward a platform text that says that the EC proposal is ambitious but that loopholes need to be closed and that protection of workers and journalists needs to be strengthened. Other unions on the platform disagree with the overall positive tone and request a broadening of the material scope. The platform quickly reaches consensus on getting Art 153 TFEU into the material scope. Article 153 covers working conditions, social security and social protection of workers. Hence, from a union side there is the push to get workers’ rights acknowledged as public interest. From the side of civil society organizations, an open letter states that the material scope must include human rights violations, gross waste and gross mismanagement. The open letter refers to ‘best practices for whistleblower laws’.
Meanwhile the platform is gearing up its lobbying activities. In June 2018 the platform is informed of a meeting between members of the platform and the EP rapporteur, who is taking up a number of requests, but no mention is made about material scope. In September 2018 the platform is informed that employer demands at the European Economic and Social Committee (EESC), an advisory assembly composed of social partners (employer organizations, trade unions, and representative of other interests), were voted down. These demands would have narrowed down the scope, and the platform takes credit for having stopped that. In October 2018 the platform is informed that the EP’s constitutional affairs committee (AFCO) takes the opinion that there cannot be a change to the legal basis of the Directive. Hence, the EP’s committee on legal affairs (JURI) will be crucial. However, their vote has been postponed. The platform is also informed that usually JURI follows the EP proposal but this time there might be an exception: the person providing legal services opinion is Axel Voss (EPP, Germany) who has so far not been favourable to the campaign. There remains however a belief amongst platform members that JURI will be open to the possibility of including Art 153 TFEU. A couple of days later JURI indeed forms the opinion that Art 153 is compatible. A week after that the EESC opinion is also that Art 153 must be considered.
Hence the campaign is gaining momentum. The postponed JURI vote takes place on 20 November 2018. JURI takes on the amendment to expand the material scope, which now also includes: ‘employment, working conditions, workers’ rights on the principle of equal opportunities and treatment between men and women’. On the platform, this news goes out with the title ‘Win in EP!’, and is seen as a good start for the ‘trilogues’.
The trilogues consist of a sequence of substantial and technical meetings between the European Parliament, the European Commission and the European Council. This is where decisions and text are fine-tuned and polished before heading back to the European Parliament to be voted on. In December 2018, the platform is informed of the news that the Council is not in favour of the broad range for the legal basis of the Directive. More precisely, the Council will not want to include Art 153 TFEU without consulting social partners, and there is no time for that now. Given that the EU elections are scheduled for May 2019, an additional consultation round would endanger the whole Directive project. The platform puts its hopes on including Art 153 TFEU in a review of the Directive in 6 years’ time. The resulting material scope for whistleblower protection in the EU Directive is left at: protection of personal data, agriculture, freedom of establishment, recognition of diplomas and other formal qualifications, transport, rail road and inland waterway, internal market, public health, consumer interest, environment and fraud. Gone are State aid and tariff, new is environment.
From December 2018 onwards—after the defeat on public interest—the platform focusses its lobbying activities on the mandatory three-tiered sequence of the EC proposal. This mandatory sequence implies that for whistleblowers to be protected against retaliation, they need to first report the wrongdoing inside the employer organisation, before going outside to a regulator, and they could only disclose to the media after they have reported internally and to a regulator. Before describing how the campaign platform fought on this particular topic, it is necessary to discuss the idea more generally.
The distinction needs to be made between on the one hand a descriptive account of how whistleblowing escalates and on the other hand a prescriptive account of which steps must be taken in the escalation process for the whistleblowing to be legitimate. The descriptive account is most univocal: whistleblowing typically is a gradual escalation of reporting wrongdoing from internal to regulator to a public disclosure. The pattern is consistent across different policy models. Donkin et al. (2008) show that gradual escalation is a typical pattern for whistleblowing in the Australian public sector. Vandekerckhove and Phillips (2019) demonstrate the same for whistleblowers from across different sectors in the UK. Austin and Lombard (2019, p. 82), referring to the SEC annual report of 2017, write that even in jurisdictions with a whistleblower bounty programme, the ‘evidence indicates that most whistle-blowers first report internally.’
Prescriptively speaking, there are different approaches. I will demonstrate this multivocality by briefly commenting on three approaches: the US, the UK, and France. In the US, the Dodd-Frank Act provides awards and protection to whistleblowers who report fraud to the SEC. It is important to note—without going into too much detail here—that different law applies to financial award for and protection of whistleblowers, even if both fall within the larger statute of Dodd Frank. Awards are intended to incentivize whistleblowers to come forward, whereas protection programs are intended to provide the whistleblowers with legal remedies as victims of retaliation. The Dodd-Frank legislation itself does not require whistleblowers to have reported internally first. However, the SEC rules do incentivise internal whistleblowing (SEC 2011, p. 231). In deciding what amount the whistleblower will get for their information, the SEC considers favourably when a whistleblower first internally reported the fraud (Austin and Lombard 2019). The rationale is that because the regulator runs an award program for whistleblowers, companies are incentivised to enhance their internal compliance and whistleblowing mechanisms so that the company receives early notification from their workers (Austin and Lombard 2019). Thus, initially the US Dodd-Frank model incentivized internal reporting without making it mandatory. That was different for the so-called ‘gatekeeper professions’, i.e. professions who can disrupt wrongdoing by withdrawing their cooperation with the company where the wrongdoing occurs, such as auditors, certified accountants, lawyers, etc. (Gutter 2010). The SEC initially refrained from awarding money to gatekeeper whistleblowers, unless they had blown the whistle 120 days earlier to the board of the company. Recently, the Supreme Court in Dig Realty Trust vs Somers (138 S. Ct. 767(2018)), relied on a ‘plain reading’ of the Dodd-Frank Act to hold that protection does not extend for internal whistleblowers but extends only to those who report a securities law violation to the SEC’ (Heyman 2019). In September 2020, this case led to the SEC rewriting rule 21F-2(d)(4) to now clearly instruct whistleblowers to directly report to the SEC if they want protection and financial award (NLR 2020).
The UK Public Interest Disclosure Act does not have a bounty program like the Dodd-Frank Act has. It is implemented through employment law, and is sometimes said to have two levels of disclosure: to the employer or the regulator in the first instance, and to the wider public as a second level (Bowers et al. 1999). Initially, protection for first level disclosures required the whistleblower to have reported in good faith (Bowers et al. 1999). Second level disclosures, i.e. to the wider public were protected if the worker reasonably believed she would have been victimised, there would have been a cover-up, or the employer or regulator had failed to act on a previous report by the whistleblower. This sounds like a pretty relaxed regime. However, whistleblowers had a hard time at Employment Tribunal to convince the judge of their good faith when they had gone straight to the regulator. In 2013, the good faith test was taken out and replaced by a requirement that the worker had a reasonable belief their whistleblowing was in the public interest, and that it was reasonable for them to blow the whistle to whom they did. Thus, PIDA remains difficult to predict; it protects those whistleblowers of whom the judge finds that they acted reasonably. The approach in France is more rigid. The Sapin II law provided protection for whistleblowers only when they follow a mandatory sequence: internal, to a regulator, wider disclosures.
What about the EU Whistleblowing Directive? In its justification study, which underlies the EC proposal directive, the EC refers explicitly to Vandekerckhove’s (2010) articulation. This approach stipulates that regulators need to be mandated to receive reports from whistleblowers in order to intervene when organizations they regulate are not able or not willing to stop wrongdoing that occurs under their responsibility. However, whistleblower reports to regulators are not public disclosures; regulators act on the publics behalf. Public disclosures (e.g. to journalists) also need to be protected so that whistleblowers could warn the public of malfunctioning regulators. Vandekerckhove (2006, 2010) aimed to articulate the logic of good governance that implicitly underlies policy models found in the early 1990s in Australia (Queensland and New South Wales), but also the UK. It seems that the EC proposal text interpreted Vandekerckhove’s three-tiered model through a French lens, as rigidly prescriptive. It thus stipulated that whistleblowers would be obliged to blow the whistle inside their organization first before going elsewhere.
The campaigning platform fought this mandatory internal reporting stipulation. This is where civil society organizations got the upper hand within the platform. Before 2018 unions held the view that the mandatory tiered sequence provisions were not the main problem—the material scope was—and that some rewording of exception to the obligation to go internally first would suffice. WIN had first tabled concerns about the mandatory tiered sequence in June 2018. From then on, both material scope and tiered sequence were campaigning positions. In October 2018 WIN provides the platform with a couple of one-pagers, basically argumentative ammunition against a mandatory tiered sequence. The brief states that.
mandatory internal reporting would undermine the Directive’s goal by increasing the opportunities for retaliation and enabling obstruction of justice. It would be contrary to many established justice systems for a whistleblower to lack the certainty that they are able to turn to competent authorities without reprisal. (WIN brief 181017)
WIN had produced these briefs in August 2018, but only now starts to promote these through the platform. As with the material scope issue around this time, EP committees seem prepared to move away from mandatory internal reporting, and so does AFCO.
As already noted, in December the route to a wider material scope is closed off, and the platform now fully takes up the attack on the mandatory tiered sequence. In January 2019 the platform is briefed on how Member States representatives stand with regard to the mandatory tiered sequence. Apparently Germany and France want to keep it. Moreover, the Council text, which forms the bases for the trilogues also keeps the mandatory tiered sequence. In response, Eurocadres and other unions plan to increase pressure by launching a public petition. Early February 2019, Tom Devine from GAP issues a text to the platform on ‘poison pills’ and ‘cardboard shields’ in whistleblower protection. His analysis includes the following:
Mandatory internal reports in any form enable obstruction of justice at bad faith organizations, because they lock in a three month grace period to perfect a cover-up. While the proposal has a relevant exception, there is an inherent chilling effect from barring the clear, free choice of audience. Until the whole case is over, employees would not know whether they waived their rights by going straight to authorities. This is highly uncertain. As the recital explains, at 23, whether the exception applies “will thus depend on the circumstances of each case and of the nature of the rules that have been breached.”
A week later, the platform publishes an open letter on the mandatory tiered sequence, using Devine’s imagery of the shield (see Fig. 2). The platform also issues a call on members to lobby ministers at national level, in particular ministers of justice. Meanwhile, Blueprint for Free Speech launches a parallel public petition, which is not taken all that well by the unions, who call for unity.
At the end of February 2019, the platform signals that there might be a blocking minority in the Council: 10 Member States now oppose the mandatory tiered sequence; Germany and France still want it. At the beginning of March, positions in the Council seem entrenched but the petitions together gathered 250,000 signatories. A couple of days later, Eurocadres reports some opening at COREPER (the committee of permanent Member State representatives) in the Council. On 11 March the platform informs that there is a ‘breakthrough’ on tiered sequence in the trilogues. Germany and France have caved in. The text can now be amended and sent to the EP for voting.
On 15 April there is a huge wave of celebrating messages and mutual congratulations on the listserv after the successful vote in the EP. Four days before this, Julian Assange was arrested in London.