Transposition of the EU Whistleblowing Directive still not completed 

The official deadline for all 27 EU Member States to transpose the Directive on the protection of whistleblowers was 17 December 2021. Only eight countries adopted legislation in time, and more than a year after the deadline, only 17 have passed new Whistleblower protection laws.  

Infringement procedures 

In July 2022, the European Commission initiated infringement proceedings against 15 Member States by sending them reasoned opinions. This is a formal request to comply with EU law. The country in question must also inform the Commission of the measures taken, within a specified period (usually two months). A second request was sent in September 2022 to four Member States, for failing to communicate what has been done to fully transpose the Directive.  

Member States referred to the Court of Justice 

Eight Member States did not provide satisfactory replies to the formal requests: Germany, Luxembourg, Poland, Hungary, Estonia, Italy, Czechia, and Spain. As a result, in February the European Commission decided to refer them to the European Court of Justice for failure to transpose and notify national measures for transposing the Whistleblower Directive.  

Financial penalties 

When an EU country fails to communicate measures that implement the provisions of a Directive in time, the Court of Justice may choose to impose penalties. If the court finds a country has breached EU law, national authorities must act to comply with the court judgment. If the country still does not rectify the situation, they may be referred back to the court. When a country is referred to the Court for the second time, financial penalties can be imposed either in the form of a lump sum, and/or a daily payment.  

New whistleblower protection laws  

Another member state, specifically Spain, approved new legislation on the protection of whistleblowers only one day after being referred to the Court of Justice. With the approval of Law 2/2023, there will be sanctions of up to one million euros for those who retaliate against whistleblowers. Spain became the 18^th country to implement the Directive.  

Germany, on the other hand, fell short right before the finish line. The draft law on the protection of whistleblowers was approved by Federal Cabinet in July 2022 and approved by Bundestag in December. After being rejected by the Federal Council, the law cannot enter into force in April as planned. Arguments presented in the Bundesrat against the draft law mainly reflect the opinion that the law would place an undue burden on small and medium-sized companies. 

The German draft law will now be passed to the mediation committee to make amendments to the law and reflect a compromise agreement.  

You can read more about National Whistleblower Laws here.  

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