By the end of 2021, all 27 nations within the European Union (EU) must establish whistleblower protection laws in accordance with the EU Whistleblower Directive. These laws must meet the minimum requirements of the Directive but each nation is tasked with drafting its own legislation. According to some whistleblower advocates, proposed legislation in several countries is lacking and would fail to properly incentivize and protect whistleblowers.
In a new article for JD Supra, leading whistleblower attorney Stephen M. Kohn, a founding partner at qui tam firm Kohn, Kohn & Colapinto, outlines six principles which he argues must be adopted by EU members in order for their whistleblower legislation to be effective.
According to Kohn, “[w]hat it takes to adequately protect or incentivize whistleblowers is not a mystery.” He explains that “[w]histleblower laws have been on the books for over 50-years, and numerous studies have been published analyzing these laws. Moreover, law enforcement officials have worked closely with whistleblowers in enforcing anti-fraud and anti-corruption laws for over 35-years, and the track record on these initiatives is also part of the public record.”
Kohn argues that EU lawmakers simply need to look at the United States’ whistleblower laws to see which provisions are necessary for whistleblower legislation to be effective. The six principles that Kohn emphasizes are all found in the False Claims Act (FCA), which has been described by law enforcement officials as the “most powerful tool the American people have to protect the government from fraud.” The six principles are also included in the Dodd-Frank Act (DFA) which established the highly successful Securities and Exchange Commision (SEC) Whistleblower Program.
The six key principles which must be incorporated into EU whistleblower law according to Kohn are:
- “A clear statement of what constitutes a protected disclosure;
- Procedures that permitted whistleblowers to obtain due process consistent with other laws enforced in court;
- Adequate damages to be paid to whistleblowers who suffered retaliation;
- A right to counsel, and a mechanism to pay private attorneys who represent whistleblowers;
- The identification of an office within the government where whistleblowers would file confidential disclosures related to the frauds outlawed by the False Claims Act;
- A process where whistleblowers can obtain compensation and monetary rewards, paid for by the corporate wrongdoers, if their original information resulted in successful prosecutions.”
In his article, Kohn explains why each of these respective provisions is essential and even provides suggested language for implementing each of the principles.
“The importance of effective whistleblower laws as an essential component of any anti-corruption program is also well established by the empirical evidence,” Kohn writes. “It is incumbent that Members of Parliament fully understand the basic principles that underly proper whistleblower laws and insist that the final version of the whistleblower laws being enacted pursuant to the requirements of the Whistleblower Directive follow these dictates.”
The U.S.-based National Whistleblower Center (NWC), of which Kohn is the Chairman of the Board of Directors, has repeatedly offered its guidance to EU lawmakers since the whistleblower Directive passed. In 2018, NWC sent a letter containing detailed recommendations for whistleblower legislation to the then presidents of the European Commission and the European Parliament.