EU member states need to enhance their whistleblower protection laws

As the year draws to an end, we reflect on two significant challenges shaping our future, climate change and corruption. Addressing these issues requires a collective commitment to the common good over private interests. Whistleblowers play a crucial role, exemplified by those who revealed that the United Arab Emirates intended to leverage their hosting of the UN Climate Change Conference (COP28) for oil and gas deals. They are essential to safeguard the public interest.

To effectively confront the hurdle ahead, we need more individuals with the courage to blow the whistle. Unfortunately, those witnessing wrongdoing frequently lack the necessary support to step forward, fearing personal, professional or legal repercussions, and even physical harm.

In 2019, the European Union adopted a directive binding the 27 EU member states to protect whistleblowers. The directive gave them until December 2021 to meet these new EU standards on whistleblower protection. Every year since, we look at the progress made by countries to pass laws to comply with EU requirements.

It is now two years since the deadline has passed and we continue to be deeply worried that some EU states do not take whistleblower protection seriously, considering only five countries had adopted whistleblower protection laws by the deadline, and 14 member states had still not done it one year after the deadline. All but two EU countries have adopted whistleblower protection laws. Thus, we decided to investigate these laws to assess whether whistleblowers would indeed be better protected and heard, at least on paper. While the legal protection of whistleblowers has improved in most member states, we still found reasons for concern.

When scrutinising the new whistleblower protection laws of 20 EU member states, we found that 19 fell short of crucial EU requirements. Encouragingly, many countries, in some instances, exceeded EU standards for protection. However, none meet best practices in all critical areas. Despite the strides taken, there's a pressing need for further improvements in whistleblower protection laws across the EU.

The scope of a whistleblower protection law is pivotal. It determines what types of wrongdoing a whistleblower can report in order to benefit from the protection of the law, and to trigger a response from the organisation or authority that receives it. If a whistleblower protection law excels in all other aspects but has a restricted scope, it becomes ineffective, as it will only apply to a handful of specific situations. In essence, the law's effectiveness hinges on its inclusiveness, ensuring it covers a wide array of potential wrongdoing scenarios.

Eight EU member states have adopted legislation with wide material scope. In the other 12 countries the scope of the law is fragmented or limited to various extents. It will be difficult for whistleblowers in these countries to discern whether what they want to report will fall under the protection of the law. This ambiguity often leads to uncertainty, prompting many to opt for silence rather than risking unprotected disclosure

There is also a lack of general protection for whistleblowers who report corruption, and no obligation to examine their reports in several EU countries, such as Greece, Hungary and Romania.

Seven of 20 EU countries’ whistleblower protection laws do not ensure that whistleblowers receive full compensation for the damage they suffer as a result of retaliation. This means that individuals who decided to report wrongdoing despite the risks suffered adverse consequences, fought – often through legal battles – and succeeded in getting their rights recognised, will still lose in the end. Given the potential personal and professional consequences, many will understandably think twice before speaking up.

In the laws governing whistleblower protection across 20 countries, only 12 have provisions that impose penalties for all forms of violating whistleblower protection. These violations include retaliation, vexatious proceedings against a whistleblower, interference with whistleblowing and breach of confidentiality over the whistleblower's identity. In contrast, in all but one, the same laws establish penalties for knowingly reporting false information. Worse, in three countries, the penalties for knowingly reporting false information are significantly higher than some of the penalties for violation of whistleblower protection. It conveys that dissuading knowingly false reporting is more important than dissuading wrongdoing against whistleblowers.

Only 10 of 20 EU countries require their authorities to accept and follow up on anonymous whistleblower reports, and only nine require public and private organisations to do so. This is a missed opportunity because anonymous reports can provide valuable information about wrongdoing that puts an organisation or the public interest at risk. Additionally, the possibility of reporting anonymously can empower individuals to speak when they would not do so otherwise for fear of exposure and negative consequences.

If adopted, the Anti-Corruption Directive under current deliberation by EU policy makers will require many EU member states to extend the scope of their whistleblower protection laws so that whistleblowers can report most types of corruption. This is good news, as more corruption acts will come to light in these countries. It will also be an opportunity to improve other aspects of the laws to ensure all whistleblowers who speak up in the public interest are protected.