EU proposes new whistleblower safeguards

On 23 April 2018, the European Commission announced its intention to implement new EU-wide standards to safeguard whistleblowers. The Commission’s proposals aim to strengthen existing laws by increasing the protection of whistleblowers who report violations of EU rules, including breaches of competition law.

According to the Commission the proposed reforms will establish “safe channels” which whistle-blowers can use without fear of losing their job or being demoted. These safe channels will be implemented both within an organisation and in communication with public authorities. This will most likely require additional training for public authorities on how communication with whistle-blowers should be conducted.

The proposed directive consists of a three-tier reporting system, (i) internal reporting channels, (ii) reporting to competent authorities (if internal channels do not work or are not appropriate), and (iii) public / media reporting (if no action is taken after exhausting the first two channels). There will be an obligation for companies and authorities to respond to the reports made by whistleblowers within a period of three months and whistle-blowers will be exempt from liability for disclosing the information.  Remedies are also foreseen to prevent possible retaliation against whistle-blowers and in such cases the burden of proof will be reversed meaning the organisation or person would have to prove they were not acting in retaliation against the whistle-blower.

The proposal is particularly timely given the recent scandals for example concerning Volkswagen and Facebook. Věra Jourová, the Commissioner for Justice, Consumers and Gender Equality has labelled the proposed directive a “game changer”.

From a competition law perspective, the proposal is an interesting development as it may encourage those with knowledge of the existence of cartels, to come forward when otherwise they would not. Only time will tell if this results in an increase in public enforcement as a result. Nevertheless, any improvement in the protection of whistle-blowers who report wrong doing in the public interest should be seen in a positive light.

by Pádraic Burke and Martin Seegers

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