The arrival of whistleblower rights in Europe was a long time coming. As recently as 2013 – when countries such as Jamaica, South Africa, the US and Vietnam already had laws in place – the European Commission closed the door to passing EU-wide whistleblower rules.
Following major cases such as Panama Papers and LuxLeaks, EU officials changed their tune and enacted a strong whistleblower regulation in 2019. Today, EU countries are still in the midst of developing laws and procedures to comply with the new rules.
Helping to lead this effort is the Network of European Integrity and Whistleblowing Authorities. The group’s Barcelona Declaration, issued at its June meeting in Spain, calls on EU countries to “strengthen their anti-corruption and integrity agenda” by developing a “robust whistleblower protection system.”
The Declaration supports this call by noting one of the most pressing issues of our time: “Europe is currently at a crossroad in the defence of the principles that inspire the rule of law as opposed to authoritarian models.”
The first of its kind in the world, the Network was founded in 2019 by Wilbert Tomesen, chair of the Dutch Whistleblowers Authority (Huis voor Klokkenluiders).
“There’s an urgent need for every country to enact strong rights that comply with the EU’s new rules,” Tomesen told WNN. “Actually, I would plead for countries to go beyond these minimum standards and create a comprehensive and coherent whistleblower protection framework. This should include strong public authorities to supervise these frameworks.”
The Declaration makes a series of recommendations to help ensure employees who report crime and corruption are shielded from retaliation:
- pass laws that comply with both the letter and spirit of EU rules without further delay;
- cover not only violations of EU laws but also violations of national laws and any misconduct threatening the public interest;
- enact comprehensive protections, including preemptive protection and corrective measures;
- carry out awareness-raising campaigns to foster a speak-up culture within workplaces; and
- provide public authorities with sufficient resources to assist citizens.
Tomesen says the Network has become a resource for whistleblower protection officials, by identifying and sharing best practices. “We need to make sure officials understand their critical role in ensuring people are not punished for doing the right thing,” he said.
In addition to the Netherlands, public agencies from 21 other countries have joined the Network: Belgium, Bulgaria, Croatia, Czech Republic, Denmark, Estonia, Finland, France, Greece, Hungary, Ireland, Italy, Latvia, Lithuania, Montenegro, Portugal, Romania, Slovakia, Slovenia, Spain and Sweden.
Public agencies and officials in these countries also are being supported by Kohn, Kohn & Colapinto and the National Whistleblower Center, based in Washington, DC; Whistleblowing International, based in The Hague; and the European Center for Whistleblower Rights, based in Berlin.
An Uphill Struggle
Most EU countries have had scant experience in receiving, investigating and responding to whistleblower reports and retaliation complaints. Only a few EU countries have established an official whistleblower office, and none of them have the legal authority to order a victimized whistleblower to be reinstated to their job and compensated for damages.
Only about 10 EU countries have passed new laws to comply with EU rules, none of which include specific mechanisms to protect and compensate employees. This past January and February, EU officials reprimanded 26 of the EU’s 27 countries for failing to meet Brussels’ deadline to pass new laws. The European Commission sent formal notices to every EU country except Malta for missing the December 2021 deadline.
Not just in Europe, but the general failure of countries to protect witnesses in the workplace is a worldwide problem. A 2021 study by the International Bar Association found only 21 percent of people won their retaliation cases in 37 countries with whistleblower laws. In 22 countries, no official cases have been filed at all, the organizations found.
“Even when whistleblowers officially prevail,” the report concluded, “they often ‘lose by winning’ because of small financial awards, high costs and lengthy procedures for resolving retaliation cases.”