The elusiveness of whistleblower protection across Europe

Antoine Deltour and his lawyers Philippe Penning and William Bourdon at the Criminal Court of Luxembourg, May, 2016. Wikicommons/Ato Grosso. Some rights reserved.In an era where there is an ever-growing thirst for transparency and
accountability, whistleblowers who expose threats or harm to the public
interest are increasingly important.

Nonetheless, they continue to face retaliation including prosecution, loss of jobs,
intimidation, physical assaults and forced exile around the world.

Moves to ring-fence secret
spheres in Europe pose an additional threat to the protection of whistleblowers.
Indeed, the European trade secrets directive, laws protecting national
security, and national case-laws on confidentiality of investigations imperil freedom
of expression and the capacity of individuals to blow the whistle when they
witness wrongdoings that impact the welfare of the general public.

In this context the Court of Appeal decision of
May 25,
2018, acquitting Antoine Deltour of all charges pertaining to the disclosure of
a widespread tax avoidance scheme in Luxembourg, known as Luxleaks, is
laudable.

Despite this commendable legal outcome,  the
long criminal procedure that Antoine
Deltour endured threw into relief the
many loopholes in the Luxembourg whistleblowing protection system and
highlighted the weaknesses of domestic whistleblowing legislation within Europe. These legislations are all too often
insufficient to shield whistleblowers.

Weak national
whistleblowing legislation

First and foremost, the case revealed that
whistleblower protection is often challenged by questions about entitlement to
claim protection.

Most laws
are overly narrow and limit protection to certain forms of wrongdoing, most
preeminently corruption. For instance, in Luxembourg,
the protection only applies to disclosures made in relation to corruption,
influence peddling and illegal conflicts of interest. A good practice, however, is to extend protection to all forms
of actions or threats against the public
interest, including issues related to health, environment and infringement of privacy rights. A good practice is to extend protection to all forms of
actions or threats against the public
interest, including issues related to health, environment and infringement of privacy rights.

Furthermore, most domestic laws require the
disclosure to be made in the workplace. This approach goes against Article 33
of the United Nations Convention against Corruption, which does specifically
stipulate "that any person who reports in good faith and on reasonable
grounds" should be protected.

French legislation provides an example of good
practice in this regard. Under French legislation,
a person can have encountered the information
anywhere, so long as he or she “became personally aware” of the reported
wrongdoing.

In the same vein, laws rarely protect public disclosure. In many countries, an
individual can only disclose information through dedicated internal mechanisms.
Yet in some cases, internal reporting is
not sufficient to put an end to wrongdoing. In fact, when important interests
are at stake, there is a risk that wrongdoing will not be addressed properly or
will even be covered up. A strict prohibition of public disclosure may thus
prevent serious harm or threat to the public
interest to surface or force whistleblowers to face grave consequences.

The exclusion of disclosures involving matters
of national security or official secrets is another point of concern. While it
is important to take into consideration the sensitive nature of some
information, given recent moves across the globe to broaden the scope of
classified information, there is a risk that such limitation will amount to a
shrinkage of information pertaining to government decisions and undermine public
scrutiny on related issues.

A better approach would be to put in place
mechanisms that strike a balance between national interest and accountability
and take into consideration the significance of the information disclosed to
the public interest. Transparency International recommends the adoption of
special procedures that would permit internal disclosures, disclosures to an
autonomous oversight body that is institutionally and operationally independent
from the security sector, or disclosures to authorities with the appropriate
security clearance.

The need for European
standards for protection

The Luxembourg case stressed the necessity of
a European legislation that will integrate the case-law of the European Court
of Human Rights (ECtHR) as well as the principles set out in various European
non-binding instruments.

As many domestic legal frameworks remain weak,
the ECtHR case-law is often the only protection available to whistleblowers
reporting wrongdoings taking place in Europe. Yet the failure of Luxembourg
first and second instance courts to protect Antoine Deltour on the ground of
the European Convention of Human Rights
is evidence of the shortcomings of the Strasbourg Court case-law.

Since the Guja vs Moldova case 2008, the
European Court has set out a test comprising of six criteria to establish
entitlement for whistleblower protection under article 10 of the Convention. At
the heart of the test are the principles of necessity and proportionality.
Consequently, public disclosure is protected, but only when there is no other
reporting avenue available.

Among the six criteria, the notion of good
faith is highly controversial. Indeed, it is construed by the Court of
Strasbourg as requiring that whistleblowers have no motives other than that of the
public interest. Thus, it fails to protect individuals with personal or
multiple motivations, as is often the case. It
fails to protect individuals with personal or multiple motivations, as is often
the case.

Consequently, there is a need for the adoption
of European standards for protection that will build on the ECtHR case-law. The
March 2018 -EU Commission proposed a directive to strengthen whistleblower
protection across the EU. This is a positive development. More protective than
the ECtHR case-law in many respects, the proposed law does not look at the
motivations for disclosure to determine whether or not a whistleblower should
be protected. Furthermore, under the new law, private and public sector have an
obligation to put in place internal reporting mechanisms while competent
national authorities have an obligation to establish external reporting
mechanisms. In accordance with the Court of Strasbourg, the directive offers
protection to public disclosure, when used as a last resort.

On the material
scope, however, the proposed directive should align to the ECtHR case-law. Not
only should it protect disclosure about breach of law or abuse of law but also
any information that is of public interest.

Looking beyond the
proposed EU commission directive

The EU Commission proposed directive is
certainly a good starting point, albeit limited in its scope. It should be
adopted and completed with other legislation. Nonetheless, before the proposed
directive becomes a legally binding piece of legislation, and on matters
falling outside its mandate, it is important, to interpret the
ECtHR case-law in an open manner and draw from the proposed directive, European
and international non-binding commitments such as the Tshwane Principles on National Security and the Right
to Information. Failing to do so, the protection guaranteed to whistleblowers
across Europe will remain an illusory protection. In such a context,
whistleblowers should not be encouraged to come forward.