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The European Commission has proposed a directive on the protection of whistleblowers in both public and private sector organisations. In addition, a number of whistleblower protection agencies that support whistleblowers and investigate the wrongdoings they report have set up a European network to share knowledge and experience on how to deal with the challenges of whistleblower protection. Will this lead to better protection for whistleblowers? And what can we learn from practices in other countries?

It is all on the agenda of the International Whistleblowing Research Network (IWRN) conference, organised by the Utrecht ľ¹Ï¸£ÀûÓ°ÊÓ School of Governance (USG) on 20 and 21 June 2019, in collaboration with Middlesex ľ¹Ï¸£ÀûÓ°ÊÓ London. The IWRN conference brings together academics, NGOs, and representatives of government institutions that play an important role in whistleblower protection from a large number of countries.

EU proposal: clear procedures, safe reporting, good protection

In March 2019, the European Commission submitted a proposal for EU wide whistle-blower protection that applies to both private companies and public organisations (including governmental organisations). The proposal relates mainly to European legislation, is intended as a guideline for national legislation and has three main principles:

1. There must be clear reporting procedures, that include obligations for employers.
2. There must be secure channels for the internal and external reporting of abuses.
3. The protection of whistleblowers (e.g. against reprisals) must be well-organised.

In the meantime, the has confirmed the proposal. The ball is now in the court of the European Parliament and the national parliaments.

Kim Loyens, researcher at the Utrecht ľ¹Ï¸£ÀûÓ°ÊÓ School of Governance (USG), conducted comparative research into the international differences in legislation and regulations for reporting wrongdoing by whistleblowers and their implementation by whistleblowers authorities and NGOs. She was present at the recent establishment of the network European Integrity and Whistleblowing Authorities and is one of the organizers of the IWRN conference in June. What is her take on the European proposal?

The Netherlands still has to take steps

Reverse burden of proof - now also in the Netherlands

‘The European directive is a very good step towards better protection for whistleblowers,' says Loyens. ‘Countries that do not have a whistleblower protection regulation really need to do something. All the guarantees that experts believe should be present in whistleblowing legislation are also included in the proposal. It is based on best practices,' says Loyens. ‘Nevertheless, there is always a risk that it will not have real teeth. On the positive side, however, countries where protection only applies to the public sector must also provide regulation in the private sector. Whistleblowers in companies are more likely to see improvements.

As for the Netherlands, the whistleblower legislation will have to include a reverse burden of. At the moment, a whistleblower in the Netherlands who makes a retaliation claim still has to prove himself that there is a relationship between the reporting of wrongdoing and the perceived retaliation against him - and that is often very difficult. The reverse burden of proof means that an employer must prove that the disadvantage (e.g. not getting a promotion, being fired or transferred) is not related to the report. This is also included in this proposal. The Dutch Whistleblowers Authority had already proposed this, but the Netherlands still has to take steps,' says Loyens.

‘What I find regrettable is that the proposal does not mention a governing body that will implement it. It is up to the member states themselves to make such arrangements - or not. In practice, this often causes problems when reporting wrongdoing. In Norway, for example, the regulation for whistleblowers is good, but there is no ombudsman or Whistleblowing Authority that actually investigates the report, the wrongdoing or the retaliation claim. Whistleblowers can only go to court there to claim their protection. But then, as a whistleblower, you are often powerless against a team of specialist lawyers of a strong organisation.

If there is an organisation that can carry out an independent investigation, then you stand stronger as a whistleblower. If the case then goes to court, you can appeal to the report and take action against that organisation.’

The European directive states that all forms of reporting must be protected. Internal reporting should be encouraged as a first step, unless this is considered impossible.

Reporting to the media should also provide protection

‘What is also striking in the proposed European directive,' continues Loyens, 'is that it concerns internal reports, reports to inspection services, reports to an ombudsman as well as reports to the media. In some countries, including the Netherlands, there is no provision for the latter. So if you 'leak' to the media, you have no right of protection at the moment. Only if you first report it internally, then possibly externally to the police or an inspection service and thirdly to the Dutch Whistleblowers Authority. The European directive now states that all forms of reporting must be protected. Internal reporting should be encouraged as a first step, unless this is considered impossible‘.

Learning from experience in an international network

In April 2019, the was established on the initiative of the Dutch Whistleblowers Authority. This was also one of the important recommendations of Kim Loyens and Wim Vandekerckhove, following their study The Dutch Whistleblowers Authority in an international perspective. The international network currently consists of eight organisations, equivalents of the House of Whistleblowers. More countries and parties will join. They will exchange knowledge and experience and are expected to work together on the same kind of implementation of the European regulation.

During the conference of the International Whistleblowing Research Network in Utrecht, the international comparison between eleven countries that Loyens and Vandekerckhove have made will also be discussed, particularly with regard to the responsibilities of the whistleblowing organisations and the challenges they face when it comes to the implementation of legislation and regulations. Experts from Australia and the USA also contribute to this debate. In addition, many case studies from different countries will be discussed, in which much attention will be paid to the experiences of whistleblowers with retaliation and their opportunities to discuss this.

IRWN Conference: 20 and 21 June 2019

Read more about the conference on our website. A pre-conference seminar is also organised in collaboration with the Markets and Corporations in Open Societies platform.

Contact

Do you want to know more, or do you have questions about the conference? Please contact dr. Kim Loyens: k.m.loyens@uu.nl.