Whistleblowers in the European Union will be at risk of retaliation unless they can report crimes to regulators and law enforcement without first reporting them internally.
That is the message from Stephen M. Kohn in an article published Wednesday on the website of Whistleblowerprotection.eu. Kohn, a Washington-based lawyer represents Danske Bank whistleblower Howard Wilkinson.
Kohn writes that a fundamental principle in whistleblower law is the protection of employees who come forward.
Common sense dictates that reports directly to government officials must be protected. For example, if you are looking out your window, and see youthful offender mugged a senior citizen, you do not call the young person’s parent. You call the police. The same goes for corporate crime. If a company is stealing from its investors, or engaging in money laundering, illegal secret banking or other offenses, it is clearly important to report these crimes directly to the police as quickly as possible
Kohn called protection for whistleblowers “one of the most important issues now before the Council of Europe.” In Wilkinson’s case, Denmark lacked any protections for insiders who report to regulatory or law enforcement agencies, Kohn writes. Had Wilkerson brought his insider information on money laundering to Danish police or regulators, he would have been at risk of reprisal. And, the requirement for internal reporting can hamper enforcement, he writes.
Unquestionably, the lack of whistleblower protections resulted in a long delay in capturing the criminals responsible for the illegal money laundering identified by Mr. Wilkinson.
In fact, this delay most likely will result in the failure to track down most of the criminal assets that are associated with the case.
In November, Kohn and Wilkerson made similar arguments before the European Parliament’s Legal Affairs Committee.
Kohn notes that U.S. whistleblower laws allow to employees to choose whether to report internally or report directly to the government. U.S. laws do not require that employees file their reports to their employer to be protected from retaliation.
The proposed E.U. whistleblower directive should not undermine the ability of whistleblowers to remain confidential, throughout the reporting process, as this creates the opportunity to intimidate witnesses and may tip criminals off to the evidence against them.
Kohn writes that the EU should instead “build on best practices,” and create “supportive and robust whistleblowers protection legal framework.”
Resources and updates:
- February 8, 2019: Coalition Statement on EU Whistleblower Directive
- February 7, 2019: NWC Letter to the European Parliament on EU Whistleblower Directive