The EU Whistleblower Directive deadline is here! Where are countries up to in adopting the Whistleblowing Directive? Get an update on national whistleblowing laws here.
The EU Whistleblowing Directive (2019/1937) came into effect on Friday 17th December.
What does this mean?
It’s the day all EU member states should adopt the Directive into national law.
And have they?
Let’s take a look at where countries are up to in introducing a national whistleblowing law.
Latest update: June 2022
Initial discussions with government departments and federal states resulted in a first internal draft for a law, that has not yet been publicly published. After a considerable delay, the draft law was sent for review for six weeks, as announced by the Federal Government in the beginning of June 2022.
A joint progress report published by Transparency International and the Whistleblowing International Network February 2021 found that Austria has made minimal progress in adopting the Whistleblowing Directive and that the process has been neither transparent nor inclusive.
There has been little, if any, development in the implementation since last summer (2021), but recently Belgium has seen some progress on the transposition of the EU Whistleblowing Directive into national law. Currently, the Federal Government has been developing legislation specifically for the private sector. This would cover whistleblowing relating to fiscal and social fraud (but not mentioning corruption). Another draft to cover the public sector might be published by the end of May. This suggests Belgium could complete the full legislative process at some point this autumn.
Following public consultation on a draft whistleblowing law, the Ministry of Justice has published opinions submitted. Various aspects of the proposed framework were analysed, including:
A new law on whistleblower protection has been passed, making Croatia the ninth country to adopt a national whistleblowing law. The ‘Law on the protection of reporters of irregularities’ was published on 15 April and entered into force on the 23 April. Although Croatia has had a whistleblower law since 2019, significant amendments were required to comply with the minimum standard in the EU Whistleblowing Directive.
On 22 January 2022, the Cypriot Parliament passed a new national whistleblower protection law titled; ‘The protection of persons reporting breaches of Union Law and National Law of 2022’.
The new law relates primarily to violations that could harm others or damage the environment. It also covers third parties connected to that person who may suffer retaliation.
The law requires organisations to implement in-house reporting channels and processes which preserve the whistleblower’s anonymity. It will become a criminal offence to obstruct someone from making a report, to retaliate against a whistleblower, or to try remove the protection of the whistleblower’s anonymity.
A new draft was published in May 2022 which outlines the requirement to narrow down the scope of reporting (only infringements of EU law and offenses, thus removing administrative offenses from the scope). The obligation to accept anonymous reporting is omitted and the scope of individuals who are allowed to use the internal reporting channels is limited to their own employees.
The new bill includes an obligation to implement a whistleblowing solution by July 1, 2023.
The first country adopting the Whistleblowing Directive into national law. The new Whistleblower Act, called “Lov om beskyttelse af whistleblowere”, was passed in June 2021, and has now come into force (December 2021).
The Danish Act extends the scope of the EU Whistleblower Directive beyond reports of breaches of just certain EU law, it also includes Danish law. And reports of a serious nature such as sexual harassment or other severe personal conflicts at work. It doesn’t however include protection for reports relating to national security or medical information covered by the Health Act.
A new draft law on whistleblower protection has been approved by the Estonian Government. The bill has been sent to Parliament where it passed its first reading. It was estimated that the new law would come into force in June 2022.
Public consultation on the draft Government Bill closed in August 2021. The draft proposal was originally expected to be presented in Parliament in September 2021. Following feedback on the draft Government Bill, the working group preparing the Finnish legislation have twice delayed the deadline as they look at implementing changes to the draft.
France Parliament has adopted new legislation – Loi n° 2022-401 visant à améliorer la protection des lanceurs d’alerte also referred to as the Wasermann Law, on February 22. The new law goes beyond France’s Sapin 2 law, and the minimum requirements of the EU Whistleblowing Directive. Including sanctions and personal liability if organisations fail to comply.
For more, read this post on the new French law.
Following the rejection of the draft that was originally presented December 2020 by the CDU/CSU party, a draft bill is reportedly being progressed in Germany. This was due to proposals in the draft going beyond the minimal EU requirements.
The upcoming German Government has stated commitment to a responsible transposition of the EU Directive on Whistleblowing, saying the aim, “was to improve the enforceability of whistleblower rights”. It’s possible that sanctions will be introduced if organisations fail to comply.
Introduction of a new whistleblower protection law in Greece has been delayed, with civil society organisations stating that the necessary legal reforms have lacked transparency and inclusiveness. The Ministry of Justice has not yet provided any information on the process.
Hungary remains the only member state not to start transposition of the Directive. Civil Society organisations have expressed their concerns that Hungary is the only country in the EU not to initiate any steps towards adopting the EU Whistleblowing Directive.
A new whistleblower protection bill was published in Ireland in February 2022. The Protected Disclosures (Amendment) Bill 2022 seeks to transpose the EU Directive into Irish national law by amending the current Act from 2014.
Transparency International Ireland raised concerns that some measures could actually weaken existing protections for Irish whistleblowers. This would put Ireland in breach of the Directive which states that transposition of the Directive should, under no circumstances, reduce the level of protection already afforded by Member States. The legal framework was given more time for consideration following recommendations from the Finance Committee.
On 8 May 2021, the law of 22 April 2021 n. 53 entered into force. This law means the Italian Government is obliged to adopt, pursuant to art. 1 of the same provision, the legislative decrees for the transposition of European directives and the implementation of other European Union acts.
This includes adopting the EU Whistleblowing Directive. However, by the end November 2021, it became official that Italy will be late with its adoption.
Transparency International Italy and the Good Lobby held a press conference to comment on the lack of transparency in developing the law, and also called for a push to proceed with more inclusivity and openness in the coming stages.
On 20 January 2022, Latvia passed a whistleblower law into national law. The Latvian ‘Law on Raising Alarms’ has received praise for including protection specifically for climate whistleblowers. Latvia is an emerging leader on climate issues, as shown by its ambitious National Energy and Climate Plan. So far, Latvia is the only country to explicitly include protections for whistleblowers that bring forth evidence of a climate crisis. The new law also expands the scope of the Directive to protect not only breaches of Union law, but also national illegality and unethical behaviour.
‘Seimas’, the Lithuanian Parliament, adopted a new whistleblowing law just ahead of the EU deadline on 16 December 2021. The new law, which amends the Whistleblower Protection Act No. XIII-804, entered into force on 15 February 2022. Lithuania opted for different deadlines compared to the EU Directive. The whistleblower shall receive confirmation of the receipt of information within two working days and feedback on the progress of the case must be submitted to the whistleblower no later than within 10 working days.
Luxembourg missed the EU deadline but has since presented a draft whistleblowing protection law to Parliament and the media. This is now being reviewed by whistleblower protection experts to determine if its in line with the EU Directive’s requirements and also best practices.
The draft bill is indicating that it will expand on some of the minimum standards set out in the Directive, including protection going beyond reports of breaches of EU law.
A new draft Bill, called ‘Protection of the Whistleblower (Amendment) Act 2021´ (No. 249) has been published, without stakeholder or public consultation. The draft Bill proposes amendments and expansions to Malta’s current whistleblowing legislation (Chapter 527 of 2013), to ensure it’s in line with the minimum standards of the Directive.
The amendments appear to follow the Directive’s minimum requirements regarding an improved legislative framework that protects the whistleblower. The Bill puts strong emphasis on confidentiality and data protection, which must be in line with GDPR and Malta’s Chapter 586.
On April 12, an updated draft of the Ministry of Family and Social Policy law on the protection of whistleblowers appeared on the website of the Government Legislation Center. The draft was referred to inter-ministerial consultations and opinions.
The most important changes that were raised in the Polish draft are as follows:
Law No. 93/2021 was published on 20th December 2021, adopting the EU Directive on Whistleblowing.
This new law provides the general framework for the protection of whistleblowers. This includes requiring organisations to establish internal whistleblowing channels and to not retaliate against whistleblowers. Failure to comply with the new legal framework leads to liability for administrative offences.
In some instances the law goes beyond the minimum standards set out in the EU law. For instance, it includes not only breaches of Union law, but also violent crime and highly organised crime, as well as the offences referred to in article 1(1) of Portuguese Law no. 5/2002 of 11.
The new law entered into force on 18 June 2022, 180 days after its publication.
Romania was amongst the first European states with a whistleblowing legislation in place, law 571/2004 providing protection for disclosures related to the public sector only.
The Romanian Government has adopted a draft law on whistleblower protection and submitted it to Parliament in February 2022. The deadline for the new law was set to 31 March 2022, however this appears to be delayed. The Proposal expands the minimum standards required by the Directive.
The draft bill suggests the National Agency for Integrity, already in charge of the public sector´s reports, will be the authority in charge of the private sector too thus expanding their prerogatives. The draft also proposes that reports to be kept for 5 years.
The Slovak Government has released a proposal – Draft Amendment to Act. No 54/2019 which is currently being considered by the Government. The law was expected to be effective on 1 May 2022 but the process has been delayed.
In December 2021, a whistleblower protection law proposal was published for stakeholder consultation. On January 22 2022, Transparency International (TI) Slovenia responded to the proposal commenting that the current bill be improved to provide adequate protection to the widest possible range of whistleblowers.
Although Spain was delayed in adopting the EU Whistleblowing Directive, a preliminary draft law was approved by the Government on 4 March, 2022. The draft law foresees creation of an Independent Authority for the Protection of Informants, endowed with sanctioning power.
The Spanish law aims to issue sanctions for cases where complaints are silenced, reporting channels not implemented, or the anonymity of the whistleblower is not protected. The fines for employers range from €100,000 up to 1,000,000 euros for very serious infringements.
To date, the fines contemplated by the Spanish draft are the highest in Europe.
The implementation of whistleblowing channels has received a significant boost after the 2015 reform of the Criminal Code. This introduced a clause (art. 31) of exemption from criminal liability for those legal entities that had adopted an effective model prevention of criminal risks prior to the detected irregularities.
The second member state to adopt the EU Whistleblower Directive into national law. Swedish Parliament approved the Government’s proposal for a new law that protects people who report workplace misconduct, on 29 September 2021.
The new Whistleblowing Act, Lag (2021:890) om skydd för personer som rapporterar om missförhållanden’ (“Visselblåsarlagen”), goes beyond the minimum requirements of the EU Directive. Whistleblower protection can occur when there is a breach of ‘general interest’, not just Union law, and incorporates municipalities with less than 10,000 inhabitants.
Organisations with more than 249 employees will have to establish internal whistleblowing channels by July 17, 2022.
For more on this > Sweden transposes the EU Whistleblowing Directive into national law
The Netherlands already has legislation relating to whistleblowing, the “House for Whistleblowers Act”. This is therefore being amended to bring it in line with the minimum standards of the EU Directive. The new Dutch draft law, the “Whistleblowers Protection Act”, was published on 1st October 2021, and is still under consideration in parliament.
NGO Transparency International Netherlands has said the Government needs to “prioritise quality rather than urgency to meet the deadline”.
To get more updates on all member states, please also visit the EU Whistleblowing Monitor.
For more information on the transposition in your region or how the EU Whistleblowing Directive impacts you, please get in touch and your local Territory Manager will be in touch soon.
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Philippa Johnsson, Whistlelink
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