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Improving the protection of whistle-blowers all over Europe

Doc. 14958: collection of written amendments | Doc. 14958 | 01/10/2019 | Final version

Caption: AdoptedRejectedWithdrawnNo electronic votes

ADraft Resolution

1The Parliamentary Assembly considers that whistleblowers play an essential role in any open and transparent democracy. The recognition they are given and the effectiveness of their protection in both law and practice against all forms of retaliation constitute a genuine democracy indicator.
2The protection of whistleblowers is also a matter of fundamental rights: it is based on freedom of expression and of information, which entails that everyone is entitled to express themselves freely, without fear of retaliation, within precisely defined limits (which prohibit hate speech and intentional defamation in particular). However, this protection requires specific legislation to take account of the particularity of whistleblowers, who place themselves at risk by pursuing a public interest objective.
3Disclosing serious failings in the public interest must not remain the preserve of those citizens who are prepared to sacrifice their personal lives and those of their relatives, as too often happened in the past. Sounding the alarm must become a normal reflex of every responsible citizen who has become aware of serious threats to the public interest.
4Without whistleblowers, it will be impossible to resolve many of the challenges to our democracies, including of course the fight against grand corruption and money-laundering, as well as new challenges such as threats to individual freedom through the mass fraudulent use of personal data, activities causing serious environmental harm or threats to public health. There is therefore an urgent need to implement targeted measures which encourage people to report the relevant facts and afford better protection to those who take the risk of doing so.
5Accordingly, the term whistleblower must be broadly defined so as to cover any individual or legal entity that reveals or reports, in good faith, a crime or lesser offence, a breach of the law or a threat or harm to the public interest that they became aware of either directly or indirectly.
6The Assembly notes with satisfaction that since its first report on the subject (Resolution 1729 (2010) and Recommendation 1916 (2010)) and Recommendation CM/Rec(2014)7 of the Committee of Ministers to member States on the protection of whistleblowers many Council of Europe member States (Albania, Croatia, Czech Republic, Estonia, Finland, France, Georgia, Hungary, Latvia, Lithuania, Republic of Moldova, Montenegro, North Macedonia, Poland, Romania, Serbia, Slovak Republic, Spain, Sweden Switzerland and the United Kingdom) have passed laws to protect whistleblowers either generally or at least in certain fields.

In the draft resolution, paragraph 6, after the word "Hungary" insert the following word: ", Italy"

Explanatory note

Italy approved the law n. 179/2017 with a new regulation on the protection of whistleblowers. Therefore we think it's necessary to add Italy to the list of the COE Countries having specific rules on whistleblowers.

7It also notes that the European Parliament approved on 16 April 2019 a proposal for a directive aimed at improving the situation of whistleblowers in all of its member States. This draft instrument, broadly inspired by the Council of Europe’s work on the subject, is a real step forward. In particular it permits free choice as to the channel employed to “blow the whistle”, without imposing an order of priority between internal and external channels. The Assembly draws attention to the action taken by the European Parliament to achieve this excellent outcome in the context of the “trilogue” with the European Commission and the Council in March 2019.

01 October 2019

Tabled by Ms Boriana ÅBERG, Ms Ann-Britt ÅSEBOL, Mr Alexander CHRISTIANSSON, Dame Cheryl GILLAN, Mr Andrej HUNKO

Votes: 121 in favor 0 against 13 abstentions

In the draft resolution, after paragraph 7, insert the following paragraph:

"The Assembly, in noting the following proposals, expresses its belief that these measures will only reach their full effect if they are underpinned by free and courageous news media, which cherish and defend their independence, and which are supported by, if possible, constitutionally anchored legislation on press freedom and public access to official records."

8The proposal for a European directive provides in particular for:
8.1a broad definition of the group of individuals protected, including those involved in pre- and post-contractual and non-remunerated professional activities, shareholders and self-employed people (such as suppliers and consultants);
8.2clear reporting procedures and obligations for employers (private or public), who must create safe reporting channels, normally in two stages:
8.2.1firstly, at the whistleblower’s choice, an internal report (via a specially created reporting channel) or an external report to the competent authorities (specialised regulatory authorities, judicial authorities, professional supervisory body);
8.2.2secondly, a public report, including in the media, if no appropriate measure is taken within a period of three months from the initial report or in the event of an imminent threat to the public interest, or if a report to the authorities would not be likely to be effective;
8.3a ban on retaliation against whistleblowers, with no let-out clause and involving the effective protection of whistleblowers acting in good faith against criminal and civil proceedings, including “SLAPP” (gagging) proceedings; the confidentiality of the whistleblower's identity and also the protection of an anonymous whistleblower when his or her identity is discovered;
8.4criminal and civil immunity for acts undertaken for the acquisition of the information reported, provided that these acts do not themselves constitute offences in their own right;
8.5effective legal remedies and relief (compensation, reinstatement, interim measures), with a reversal of the burden of proof concerning the link between prejudicial measures taken against the whistleblower and the reporting of information;
8.6financial penalties against those who try to prevent whistleblowing (“whistleblowing inhibitors”), carry out retaliation against a whistleblower or disclose his or her identity;
8.7effective follow-up within a reasonable period (three months as a rule) with feedback to the whistleblower for all whistleblower reports;
8.8legal and psychological support for whistleblowers;
8.9the gathering and dissemination of information on the impact of reporting by whistleblowers.
9The proposal for a European directive directly covers the reporting of breaches or abuses of EU law (especially in the areas of combating money-laundering, company taxation, data protection, protection of the EU’s financial interests, food security, environmental protection and nuclear safety). However, nothing prevents countries that wish to do so from protecting those reporting on breaches or abuses of their national law according to the same principles. There are no grounds for giving less protection to national law and public interest at the national level than to the law and interests of the EU.
10All EU member countries are legally required to transpose this directive into their national law within two years from its entry into force. However, the member States of the Council of Europe that are not, or not yet, members of the EU also have a strong interest in drawing on the draft directive with a view to adopting or updating legislation in accordance with the new European rules.
11On the basis of its previous work, the Assembly considers that the following improvements aimed at clarifying, implementing or supplementing the draft directive would be desirable in order to reassure and give more encouragement to potential whistleblowers and promote a genuine culture of transparency:
11.1Allowing legal entities (especially non-governmental organisations) to “blow the whistle” on illegal practices or enjoy protection as “whistleblowing facilitators”, in the same way that journalists are able to rely on the protection of their sources; “reporting auxiliaries” must be given increased protection, especially when put under pressure to reveal the identity of whistleblowers;

01 October 2019

Tabled by Mr Nigel EVANS, Mr Pieter OMTZIGT, Lord George FOULKES, Mr Frank SCHWABE, Mr Raphaël COMTE

Votes: 114 in favor 3 against 18 abstentions

In the draft resolution, paragraph 11.1, delete the following words: "(especially non-governmental organisations)".

Explanatory note

Non-governmental organisations have the right to seek, receive and impart information given to them in the same way as journalists. There is a risk this paragraph is misinterpreted as setting a higher threshold for non-governmental organisations. Deleting the words in brackets will minimise this risk.

11.2Ensuring that individuals working in the field of national security can rely on specific legislation providing better guidance regarding criminal prosecutions for breaches of state secrecy in conjunction with a public interest defence, and ensuring that the courts required to deal with the question of whether the public interest justifies “blowing the whistle” themselves have access to all relevant information;
11.3Setting up an independent authority in each country tasked with
11.3.1helping whistleblowers, especially by investigating allegations of retaliation and failure to act on reports, and where necessary reinstating whistleblowers in all their rights, including full compensation for all the disadvantages they have suffered;
11.3.2ensuring that once a matter has been reported there is every chance of it being followed up, whatever the interests at stake, by condemning any action to suppress it; this role is particularly important when powerful economic or political stakeholders become involved and make disproportionate efforts at suppression and/or exert pressure on the whistleblower;
11.3.3providing a link with the judicial authorities as a reliable source, in particular, of material evidence in connection with judicial proceedings. Such an independent authority will therefore be able (in the same way as authorities acting as Defenders of citizens’ rights) to intervene in legal proceedings so as to give its analysis of a case and provide elements of assessment regarding the report made and the action taken by the whistleblower;
11.3.4these independent authorities would be instrumental in establishing a genuine European network that would make it possible to share good practices and exchange experience regarding the stakes involved and difficulties encountered in their work. They would constitute an independent European observatory, which would act on a daily basis to ensure that whistleblowers and the alarms they sound are accorded their rightful place in our democracies. In its own field, this network of independent authorities would be a prime interlocutor for the Council of Europe;
11.4Setting up a legal-support fund, fed by the proceeds from fines imposed on individuals or organisations that have failed to comply with whistleblowing legislation, with a view to financing high-quality legal support for whistleblowers in court proceedings, which are often long, complex and costly; the fund would be administered by the independent authority, which would grant assistance if it considered that the person being prosecuted, claiming to be a whistleblower, met previously established criteria;
11.5Ensuring that whistleblowers and their relatives are also protected against retaliation perpetrated by third parties;
11.6Ensuring that the burden of proof lies with those who attack the whistleblower, by providing in particular that:
11.6.1there is an explicit presumption that the whistleblower has acted in good faith;
11.6.2a person or authority that takes legal action against a whistleblower must prove that genuine harm has been done, including in the field of national security;
11.6.3in the case of a public disclosure, those attacking the whistleblower must prove that the conditions for public disclosure were not met;
11.6.4the reversal of the burden of proof in the whistleblower’s favour also applies in cases of criminal prosecution for defamation;
11.7Avoiding making the protection of whistleblowers subject to subjective and unpredictable conditions, such as the whistleblower’s purely altruistic motivation, a duty of loyalty to an employer or an obligation to act responsibly, without any clear and precise indication of what is expected of the potential whistleblower; it is essential for a whistleblower to be able to have speedy confirmation that he or she meets the criteria required in order to benefit from the specific whistleblowing legislation. While this can be finally determined only by a court decision, the assessment of these criteria at the earliest opportunity (especially by the independent authority) is an important element for keeping the whistleblower safe;
11.8Granting whistleblowers the right of asylum, entitling them in exceptional cases to make their application from their place of residence abroad; the maturity of the legislation for the protection of whistleblowers in their country of origin must be taken into account;

In the draft resolution, at the end of paragraph 11.8, insert the following words: "These procedures specific to whistleblowers could be created through international agreements under the auspices of the Council of Europe; in any case it is essential to give some thought to the right to asylum in order to adapt it to the new challenges surrounding whistleblowers."

Explanatory note

The aim of this amendment is to underline the need for the right of asylum for whistleblowers to evolve and to propose that it be addressed in an international convention.

11.9Granting, in connection with whistleblowing, legal privilege to persons delegated by companies or administrative authorities to receive reports, the aim being to provide potential whistleblowers with guarantees that these persons will if necessary be able to protect their identity;
11.10Ensuring that persons delegated to receive and follow up on reports are sufficiently qualified and independent and report directly to the very top of the corporation or administrative authority concerned;
11.11Ensuring that the criminalisation of acts involving the acquisition of information by whistleblowers is limited to actual break-ins for the purpose of gaining personal advantage, having nothing to do with the reporting of information in the public interest;
11.12Gathering and broadly disseminating, in co-operation with the independent administrative authorities of each country, information on the functioning of mechanisms for the protection of whistleblowers (for example, the number of cases, their duration, their outcomes and penalties for retaliation), in order to improve assessment of the functioning of the law in each country and both share good practices and correct bad ones;
11.13Fostering the emergence in civil society of an ecosystem that encourages support for whistleblowers, by drawing in particular on networks of voluntary organisations and the commitment of community volunteers. This ecosystem is essential in order to overcome the isolation faced by all whistleblowers and back them in their efforts, as well as to bring about changes in national legislation. In the context of whistleblowing and the protection of whistleblowers, the drafting of legislation together with civil society is a particularly appropriate approach.
12The Assembly invites:

In the draft resolution, after paragraph 12, insert the following paragraph:

"The Assembly supports and encourages the appointment of a general rapporteur on whistleblowers, who will be able to raise her/his voice when necessary, for instance in individual cases."

12.1Council of Europe member States that are also members of the European Union to:
12.1.1transpose, as soon as possible, the directive of the European Parliament and of the Council on the protection of persons reporting on breaches of Union law into their national legislation in line with the spirit of the directive, which aims to set minimum common standards so as to ensure a high level of protection for whistleblowers, including for those who “blow the whistle” on breaches of national law or threats to the public interest at the national level;
12.1.2put in place, beyond the requirements of the European directive, the measures proposed in paragraph 11 of this resolution, especially the creation of independent authorities responsible for the protection of whistleblowers in order to form a European network and firmly embed the logic of whistleblowing in our democratic systems, as well as foster the emergence of civil society players engaged in this area;
12.2Council of Europe member States that are not members of the European Union, as well as observer States or States whose parliaments have partner for democracy status, to revise their relevant legislation or pass new laws that draw on the proposal for a European directive and paragraph 11 of this resolution, in order to grant whistleblowers in their own countries the same level of protection as those from an EU member State;
12.3all Council of Europe member States to take a decisive step towards the protection of whistleblowers, especially by setting up a European network of independent authorities whose role will be to ensure that whistleblowing and whistleblowers are accorded their rightful place in our democratic societies.
12.4all Assembly members to raise the awareness of their national parliamentary colleagues concerning the importance of improving the management of whistleblowers’ disclosures and giving whistleblowers better protection, to share good practices and to carry out their own appraisal of their laws in order to assess what legislative progress has been made in this area. To this end, they could refer to the self-assessment grid contained in the report.

BDraft Recommendation

1The Assembly refers to its Resolution ... (2019) “Improving the protection of whistleblowers all over Europe”, its Recommendation 2073 (2015) “Improving the protection of whistle-blowers” and the Committee of Ministers’ reply of 25 January 2016.
2It recalls that a proposal for a directive of the European Parliament and of the Council on the protection of persons reporting on breaches of Union law, the aim of which is to set minimum common standards to ensure a high level of protection for whistleblowers in all EU member States, is about to come into force. This draft directive is inspired in large part by the Committee of Ministers’ Recommendation CM/Rec2014(7) on this subject, but it also contains clarifications of, and improvements to, that recommendation. The draft directive addresses an issue of particular importance for democracy, the rule of law and human rights, especially the fight against corruption and the protection of freedom of expression and of information.
3In order to avoid a new legal divide in this area that falls within the Council of Europe’s three priorities, the Assembly reiterates its invitation to the Committee of Ministers to begin preparations for negotiating a binding legal instrument in the form of a Council of Europe Convention as a follow-up to its Resolution 2060 (2015) and its Recommendation 2073 (2015). This instrument should draw on the above-mentioned European directive, taking due account of the clarifications and additions proposed in Assembly Resolution ... (2019).