Whistleblower Protection: EU Directive prevails in Poland despite delayed transposition of the Whistleblowing Directive

Whistleblowing is an essential mechanism for exposing wrongdoing and ensuring accountability within organisations. While the EU Directive 2019/1937 aims to safeguard whistleblowers, Poland has yet to adopt a corresponding whistleblower law. However, recent court decisions have shown that whistleblowers in Poland can still rely on the EU Whistleblowing Directive for protection. 

Delayed implementation of the EU Whistleblowing Directive in Poland 

The EU Whistleblowing Directive, which should have been implemented by member states by December 17, 2021, establishes a framework to protect individuals reporting violations of union laws. Unfortunately, Poland has not yet passed a law to implement the directive, causing uncertainty for both workers and businesses. The delay in adopting the legislation raises concerns about the potential chaos it may create for companies and entrepreneurs. 
 
In the absence of a national law, Polish courts have begun invoking the direct effect of the EU Directive. The direct effect allows individuals to invoke specific provisions of EU law in courts and other bodies. Although this is not an ideal solution, it provides a temporary means of protecting whistleblowers until Poland adopts its own legislation. This interim solution has already been used in some whistleblower cases, highlighting the urgency for Poland to pass a comprehensive whistleblower law. 
 

Court decision reinforces Whistleblower Protection 

A recent court decision in Torun, Poland, demonstrates the court’s recognition of whistleblower protection under the EU Directive. The case involved an employee at a university who raised concerns about the installation of suspicious software, which he believed was spyware capable of stealing confidential data. Despite the employee’s appeal on social media, the university failed to adequately address the issue. In the absence of a national whistleblower law, the court referred to provisions of the EU Directive in its verdict, emphasizing the importance of protecting whistleblowers. 
 

Implications for Businesses and Entrepreneurs 

The delay in adopting a whistleblower law poses challenges for businesses, especially with regard to the short time frame for compliance once the law is passed. According to the latest version of the draft whistleblower law published on 10 January 2024, companies will have only two months for implementing the procedures (the whistleblowing policy) and establish a functioning whistleblowing system. This limited timeframe may affect the quality of procedures and hinder the development of an organisational culture based on trust. 

A call for prompt action regarding the Whistleblower Law 

The Polish legislature must expedite the adoption of the law on the protection of whistleblowers to alleviate uncertainty for entrepreneurs and ensure effective reporting of irregularities. While the court decision highlights the protection offered by the EU Whistleblowing Directive, experts suggest improvements to be made in Poland’s national whistleblower law. Legal professionals advocate for clearer and more precise provisions that take into account the needs of private entities. They also propose establishing a centralized system for receiving and processing whistleblower reports, particularly for entities interconnected by capital. 

The new minister of Ministry of Family, Labour and Social Policy, Agnieszka Dziemianowicz-Bąk, mentioned in a recent interview (December, 2023) that the transposition of the EU Whistleblowing Directive into Polish national law will be one of the priorities for her ministry in the first period. According to the latest information on the Government’s website, it is expected that the Polish Whistleblowing Law will be approved by the end of March 2024. The new Polish government of Prime Minister Donald Tusk was sworn in by the president on 13 December 2023. 

Stronger whistleblower protection needed in Poland 

The recent court decisions and the delayed implementation of the EU directive on whistleblower protection in Poland highlight the pressing need for stronger whistleblower protection laws in the country. The absence of a national law creates uncertainty for workers and businesses alike, puts whistleblowers at risk and hampers the fight against wrongdoing. The Polish government must act promptly to pass comprehensive legislation that guarantees the necessary safeguards for whistleblowers and provides a clear framework for reporting irregularities. 

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