Proceedings

The Defender of Rights’ European Meetings Protecting whistleblowers: a European challenge

Paris | 3 December 2019

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The Defender of Rights’ European Meetings Protecting whistleblowers: a European challenge

Paris | 3 December 2019 COMPARATIVE PERSPECTIVES | PROTECTING WHISTLEBLOWERS: A EUROPEAN CHALLENGE | 2020 Foreword

Since December 2016, the Defender of Rights has been the independent administrative authority responsible for orientation and protection of whistleblowers. As such, it means to play its role to the full in the European Directive of whistleblowers’ transposition into French law.

On 3 December 2019, with three years In substance, in order to provide of expertise to its credit and after issuing whistleblowers with maximum protection, repeated warnings on the weaknesses of special provisions will have to be included, the French system, the Defender of Rights designed to better mitigate the feelings held the first European Colloquium on this of isolation and solitude expressed by subject, bringing together whistleblowers, whistleblowers themselves. To do so, it is sociologists, legal experts, practitioners and important that the institution responsible for public authorities from a dozen European their protection can provide them with the countries. The event provided valuable insight necessary assistance, lending them financial with regard to improving the effectiveness of support if required via the relaxation or whistleblower protection in the context of the extension of existing provisions, guaranteeing upcoming transposition of Directive 2019/1937 that their identity will remain confidential of 23 October 2019 on protection of persons throughout the procedure, and enabling action who report breaches of Union law. to be taken upstream of reprisals through development of legal mechanisms. The role Above all, the Defender of Rights calls for played by NGOs and trade unions called upon preservation of the progress resulting from to lend their assistance to whistleblowers will Law no.2016-1691 of 9 December 2016, known also have to be clarified. as Sapin II, in particular its broad definition of whistleblower including non-work-related Major human and financial resources are individuals, and the more inclusive scope essential to the implementation of these of alerts. It also recommends that the recommendations. Government not content itself with a strict As regards the reports themselves, transposition of the Directive, but go further, improvement of their follow-up and clarifying the role of legal persons (NGOs and processing is of key importance, in particular trade unions) in whistleblowing procedures, by designating external authorities for each and including a special whistleblowing field, competent to take responsibility for mechanism at national level relating to processing reports and keeping whistleblowers questions of national security and military informed. Such bodies will have to enjoy the secrecy. independence required to process alerts It also hopes that the transposition will provide with neutrality and impartiality. Finally, it will an opportunity to establish clear, operational be necessary to ensure compliance with legislation on the subject, accessible to the legislation, in particular by stepping up everyone. In particular, it will be necessary to monitoring of compliance with effective harmonise protection regimes and reporting implementation of report collection procedures mechanisms, and clarify coordination of and making regular assessments of the regime for protection of whistleblowers mechanisms. with the regime for protection of trade union The Defender of Rights will be organising legal representatives. It will also be necessary to workshops bringing together all stakeholders, ensure that the law is better known and inform with a view to developing legally viable citizens of their new rights in clear public technical proposals. fashion.

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Contents

Foreword 03 OPPORTUNITIES PROVIDED BY THE EUROPEAN DIRECTIVE 35 A HUMAN ISSUE 06 Contribution by Antoine Deltour 35 Contribution by Irène Frachon 06 Contribution by Laurent Mauduit 37

A DEMOCRATIC, POLITICAL AND SOCIAL GUARANTEEING OPTIMAL PROTECTION ISSUE 09 AND ENCOURAGING ETHICAL ALERTS 39 Contribution by Francis Chateauraynaud 09 Contribution by Martin Jefflén 39

AN ENVIRONMENTAL AND HEALTH ISSUE 13 Contribution by Marie Terracol 42

Contribution by Marie-Christine Blandin 13 Contribution by Jacques Testart 45

Contribution by Sylvain Waserman 48 AN ECONOMIC AND FINANCIAL ISSUE 16 Contribution by Zeta Georgiadou 50 Contribution by Charles Duchaine 16

Contribution by Patrick Moulette 19 CONTRIBUTION BY JACQUES TOUBON 53 Defender of Rights PRESENTATION OF EUROPEAN SYSTEMS 21 CONTRIBUTION BY NICOLE BELLOUBET 56 Contribution by Kim Loyens 21 Minister of Justice, Keeper of the Seals

WHAT SYSTEMS ARE THERE IN EUROPE? 23

Italy by Laura Valli 23

The United Kingdom by Elizabeth Gardiner 25

The Netherlands by Wilbert Tomesen 28

France by Sébastien Denaja 30

Contribution by Virginie Rozière 32

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A human issue

CONTRIBUTION BY IRÈNE FRACHON

A respiratory phycisian at Brest teaching hospital, Irène Frachon blew the whistle on the dangers of the drug Mediator in early 2007, exposing the industrial policy of the pharmaceutical company Servier as well as the failings of the health authorities. In June 2010, she published a book entitled “Mediator 150 mg, how many deaths?”, with Editions Dialogues. The scandal broke out in November 2010 and culminated in a major six-month trial that opened on 23 September 2019. A compensation process was set up in July 2011 under the French National Office for the Compensation of Medical Accidents (ONIAM), and so far more than 3,700 victims have been acknowledged.

"I THINK OF MYSELF years already. I had been voicing and AS A WHISTLEBLOWER." defending this report since early 2007, and here we were now three years later. In this definition, I was intrigued by the subtle On 12 June 2010, I was forwarded an email differences between the terms. The notion of that had been circulating very widely between ‘whistleblower’ typically refers to the moment all the experts at the Medicines Agency, when we speak out, when we seek to bring to also involving a number of pharmaceutical the attention of the courts, of public opinion, industry leaders, particularly Servier. This what we consider to be a possible crime; email was being shared between the Agency’s whereas a ‘lanceur d’alerte’ (literally, issuer of in-house experts, the chairs of the Medicines an alert) perhaps takes action a little earlier in Agency’s various executive committees and the process of disclosure, by lifting the lid on a the medicine regulators. It levelled scathing potential risk for populations or public health, criticism against the publication of a book, a or the general interest when the concern is not few days previously, entitled “Mediator 150 related to health. mg, how many deaths?”. Various methods of insinuation, retaliation and reprisal in These emails, which were forwarded to me to my regard were mentioned extensively in warn me of what happened on 12 June 2010, these emails which, of course, had not been arrived against a very particular backdrop. A addressed to me. I was particularly struck on few days earlier, the book I had published had reading the words of one of my critics: “She just been censored by the courts following regards herself as a whistleblower apparently a case referral from the pharmaceutical speaking out about irregularities, which are company, especially the subtitle “how many evidently both imaginary and defamatory”. deaths?”. My loyal publishers republished it by lodging an appeal against this sanction I was unfamiliar with the term ‘whistleblower’, imposed by the Brest Regional Court, so I looked it up on Wikipedia. I read that this an appeal that was eventually won. The was the English translation for the already atmosphere was therefore far from cheerful. widely developed French concept, ‘lanceur d’alerte’. I confess that I was completely The disclosure, through the book’s publication, unaware of this notion at the time. And yet had followed the issuing of a report: in the I could relate to all the questions, all the medical context, this is a pharmacovigilance difficulties and all the ethical considerations, measure, which is even a forensic requirement. which I had been grappling with for several

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In February 2007, I noticed that patients As a doctor, we are not authorised to cite were suffering from very serious cardiac and Article 401, as we are not like other civil pulmonary illnesses, possibly connected with servants since we are bound by medical exposure to a diabetes drug, Mediator. secrecy. We don’t have the option of I conducted a pharmacovigilance investigation contacting a public prosecutor, if we are not which doubled up almost as a police ourselves a victim of a side effect, for example. investigation, since I found out that the This meant that the identity of the patients, the company marketing this medicine – an potential victims, had to be revealed. Leaving amphetamine derivative – was lying about its the victims to fend for themselves risked nature so as to keep suspicions of toxicity at turning violently against them, since I had bay. It is now being addressed before the Paris already seen this happen in a previous tragedy court. linked to the same type of product, by the same pharmaceutical company, Servier I therefore began by “issuing” the required – appetite suppressants that were withdrawn pharmacovigilance alerts via administrative in the ‘90s, called Isoméride and Pondéral. declarations. In this respect, being a It still struck me how dangerous it is to whistleblower is a requirement for a doctor or expose these patients to this potential judicial any healthcare professional. This culminated violence and it seemed to me that another in the drug being withdrawn at the end of way had to be found, to give them more 2009, after three years – an abnormally long arguments. In these types of proceedings, it is time – and after encountering widespread up to the client, to the victim, to demonstrate resistance. The process becomes less the evidence, both of the defectiveness of common for a doctor when it comes to the products and the link with the health speaking out. This medicine was withdrawn complications manifested. The burden of proof without any feedback or questions of any sort is extraordinarily heavy and cannot generally – on the problems or on the consequences, prevail – or only with great difficulty. This is the perhaps much greater than we might have situation I had to set right. imagined. A bit like if a car manufacturer withdrew a whole batch because of a braking I had journalist friends who told me they could defect, without warning everyone who had run articles, investigations, special reports bought that car. I was left feeling profoundly in national weeklies, etc. That all struck me shocked. I knew, from my experience working as difficult too, as it would mean I wouldn’t in Brest, that there had been a great many have complete control over the information, victims in Brest. I didn’t see why there wouldn’t which was complex and technical. Any wrong be as many – if not more unfortunately – move could potentially be very dangerous. In across the rest of France, who were completely the end, the idea came to me of publishing a oblivious to it, who were perhaps at risk strictly fact-based, chronological, concrete regarding the diagnosis, and who could also account, referenced for each theme. Over the claim compensation. What’s more, I was also last three years, the investigation into these able to identify behaviour that appeared to medicines had culminated in a number of me to be what I later called “pharma-crime” scientific publications. All of this was grounded Not troubling a pharmaceutical company over in evidence-based medicine, as any proper extremely dangerous practices is of course a journalistic investigation must be, not least danger for the future too. to avoid convictions for defamation. I sought advice from a lawyer who had handled big For all those reasons, I asked myself what I public health cases, and who confirmed the should do. legitimacy of a fact-based account which, whilst not overtly pointing the finger, did so between the lines. This was the publication of

1 Refers to Article 40 of the French Code of Criminal Procedure: “The State prosecutor receives complaints and disclosures and decides how to deal with them, in accordance with the provisions of article 40-1. Every constituted authority, every public officer or civil servant who, in the performance of his duties, has gained knowledge of the existence of a crime or offence, is obliged to notify the State prosecutor thereof at the earliest possible opportunity and to transmit to this prosecutor any relevant information, statements or documents.” 7 COMPARATIVE PERSPECTIVES | PROTECTING WHISTLEBLOWERS: A EUROPEAN CHALLENGE | 2020

the book “Mediator, 150 mg”, with the name Discussions went on throughout the summer of this medicine. The fundamental question of 2010 and, eventually, the Medicines Agency (raised in the sub-title “how many deaths?”) was forced to ask for the number of human was how many victims of this medicine were victims from the Health Insurance Fund which, there? At the time, I didn’t have the answer. with its enormous database, had the resources The book was withdrawn from bookshops to make such an estimation. exactly 48 hours after hitting the shelves. The press conference held on 16 November As soon its publication was announced on 2010 laid bare the awful toll that this medicine Amazon, the court enforcement officers had taken – since we were talking about arrived at the publisher’s for emergency hundreds of deaths. This sparked the scandal interim proceedings to censor the title, and we are familiar with today. therefore the book. Everything had already been printed. The drug was withdrawn at the end of 2009, the scandal erupted at the end of 2010 and it Let me come back to the 12 June 2010 emails. wasn’t until a decade later that a major trial The situation was desperate, since the book finally began on 23 September 2019. To date was pulled and there was no way – even by [3 December 2019], the verdict has still republishing it – of breaking the story, for not been given, and all of the questions all sorts of technical publishing reasons. surrounding this disclosure are being fiercely The Medicines Agency had ties with the debated in court. pharmaceutical companies, and the news was also very grim from the Ministry of Health, Over this past decade, after issuing the alert, at the time headed up by Roselyne Bachelot, I’ve had to continue voicing and defending it in who sided with the Agency and considered order to manage and defend the compensation that I had to deal with Servier on my own. This of the thousands of victims. This has been is where the whistleblower, who is not aware extraordinarily difficult, and it still is to this day. they are one obviously (otherwise they are no I hope that, because I was violently intimidated longer a whistleblower but a watchdog or an by the pharmaceutical company when the analyst), finds themselves in a complicated book came out, denigrated and attacked by the situation. We had anticipated this somewhat, Medicines Agency, which isn’t a crime today, and already had openings in the national press that this will be an aggravating circumstance before the book was censored. There were when it comes to the verdict. I continue to leading interviews in Le Parisien, Le Magazine find that particularly inadmissible, especially de la Santé, a programme on France Inter with coming from the health authorities. Isabelle Giordano, and all that thanks to the To conclude, the trial is due to conclude at press officer my local Brest-based publisher the end of April [2020]. The stakes appear hired and who understood that this was a book enormous, as it is perhaps in the way it will be fighting a cause. written, and in the example set by the penalty, Thanks to these interviews, the case caught I hope, that we will have a before and an after the attention of an MP, Gérard Bapt, who got in Mediator, and that we will be able to say that touch. There is no doubt that it was the efforts there are red lines that cannot be crossed of this MP – who was very committed to health when it comes to harming the general interest, issues and head of the health mission at the the health of our populations. And as incredible French National Assembly – which brought as it might appear, this is still looking far from this alert to the public’s attention. Gérard Bapt, certain today. a trained cardiologist, read the book. He was in a position to demand clarifications and documents from the Agency, which I didn’t have access to.

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A democratic, political and social issue

CONTRIBUTION BY FRANCIS CHATEAURAYNAUD

Francis Chateauraynaud is a sociologist and research director at the School of Advanced Studies in the Social Sciences (EHESS) in Paris where he heads up the Pragmatic and Reflexive Sociology Group (GSPR). Bearing primarily on environmental and technological controversies, collective action and political conflict, his work introduced the concept of ‘lanceur d’alerte’ in French (literally ‘issuer of an alert’), in the mid-1990s, to make a distinction with the term ‘dénonciateur’. Both terms are translated as ‘whistleblower’ in English. He is the author of various studies and publications, particularly addressing the issue of alerts and whistleblowers.

"AN ETHICAL ALERT IS A PLEONASM" In the international literature, I had come across the term ‘whistleblower’, which has been in use in the United States for a very long Between 1995 and 1998, I took part in a time, and has legal implications. Its translation research programme with the French National into French, verifiable at the time on the basis Centre for Scientific Research (CNRS)2 on of Canadian law, was the word ‘dénonciateur’. a project called “The prophets of doom”, But this term was no more appropriate than which sought to understand the adoption of ‘prophète de malheur’ (prophet of doom) to minority or atypical stances in the field of describe the situation in France at the time, risks and disasters. It was in this context that, which was marked by health crises, the in January 1996, I met the toxicologist Henri emergence of new risks and the battle around Pézerat, to whose memory I pay tribute, who the precautionary principle. This was above all waged a decades-long battle against asbestos. about alerts contributing to the emergence of We know that the repeated alerts about the a raft of controversial issues, and calling into dangers of asbestos, which began back at the question the conventional expert assessment turn of the 20th century, eventually unleashed a models – especially after the contaminated health scandal, involving tens of thousands of blood affair. The people sounding the alarm deaths and consequences that are still being in this instance, what were they ultimately felt today. For Pézerat, the expression “prophet doing? They were issuing or defending alerts – of doom” immediately struck as too pejorative. defending in the sense that this process may What name can be given to those people who go on for a very long time, as was precisely the take action very early on regarding a health, case for Henri Pézerat. Irène Frachon with the environmental or technological problem for Mediator case can also attest to that. example, when they are not followed up on and have little chance of being heard? At the time, I didn’t think that the notion of whistleblower, which had an analytical function above all, would be taken up by so many stakeholders and institutions.

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There have since been two laws, in 2013 and Let us remember the “mad cow disease” 2016, there’s something about it in the media scandal: vets, researchers and physicians almost every day, with prominent figures the all working together finally characterised likes of Edward Snowden, there’s a national the transmission route of a strange illness, whistleblower centre (Maison des lanceurs a spongiform encephalopathy (TSE), mad d’alerte), a national committee for ethics and cow disease, to humans in the form of a new alerts in public health and the environment variant of Creutzfeldt-Jakob disease. Networks (cnDAspe), a book fair for whistleblowers… of stakeholders, ranging from farmers to And there’s a trial on the drug Mediator, which researchers studying the prions, pieced should set new precedent in terms of health together the evidence through extensive security. Incidentally, the Defender of Rights cross-checking, tracing the cause all the way has been tasked under the Sapin II legislation back to the famous meat and bone meal in with watching over the fate of whistleblowers. the cow’s feed, which enabled them to put And now we have this European directive together the report. It was eventually issued which will have to be transposed. by the British Government. This health scandal had a lasting impact on emerging risk What is a whistleblower? There’s a good management and assessment measures and twenty or so definitions out there. As a systems, especially in Europe. sociologist, I have endeavoured to consider the notion as encapsulating two opposing ideas: As such, when the whistleblower is defined on the one hand, you have the person who as an individual, we are completely missing sees an impending danger or hazard, but is the point, and forgetting the lessons of recent uncertain about how it will happen and what history. All sorts of entities - individuals, its consequences will be; and on the other, groups, institutions, and even, in some cases, you have the person who speaks out against certain animals and plants – as sensitive practices and activities that should be codified beings, any entity capable of perceiving or supervised, and the abusive use of which problematic signs and sending out a signal, is jeopardising a common good, a general can be a whistleblower. Of course, humans interest or a common value. This opposition have an instrumental role to play in the is analysed in an entry of the Dictionnaire reporting process. From this point of view, critique et interdisciplinaire de la participation3, referring to an "ethical report” is a pleonasm. which contains hundreds of articles on A report is for the attention of others, it is concepts and themes to do with participatory ethical by definition. By issuing a report, democracy and the public’s participation you are not only being “discerning” but in assessments, touching on governance, also “showing concern”, and even if there controversies and citizen conferences among are controversial points, uncertainties, on other subjects. Accordingly, there is an entry receiving the message we should take action, on whistleblowers. When this expression refers or at the very least show vigilance. This “us” to someone who sees an impending problem may be of variable geometry. Today, when the and reports it to the authorities, collective IPCC4 maintains that the climate scenarios stakeholders or the media, the challenge lies are increasingly bleak, the “us” is assumed to in the reversibility of a process: avoiding the represent the whole of humanity, since it is worst, we might say. The question of evidence cited on behalf is evidently not the same when making public of the UN. But we also know that there are incriminating evidence on past actions – or huge differences between the national and failures to act. This is no longer about alerting regional entities lumped together in this “us”. but disclosing, or more technically, uncovering. The two cases are often confused, and over time the two concepts have overlapped or become muddled.

3https://www.dicopart.fr

4 1 0 Intergovernmental Panel on Climate Change. COMPARATIVE PERSPECTIVES | PROTECTING WHISTLEBLOWERS: A EUROPEAN CHALLENGE | 2020

In every reporting process, when faced with Accordingly, at the same time as a process of early warning signs or disturbing information, mobilisation, the report leads to a process of the recurring question is often: who should investigation, aimed at establishing tangible act first, who is legitimate to lead the process? evidence or more clearly characterising Reporting it immediately in the media is what is known and what remains unknown, not always effective, as counter-report uncertain or debatable. The whole challenge mechanisms, especially via controversies, of the legal frameworks and rules is to enable can scramble the signals. In any case, a these processes to reach their conclusion, report is above all about taking action, and it without being prevented or diverted by is important to remember that the expression dishonest attempts to influence decisions or ‘whistle-blower’ is made up of two distinct conflicts of interest. Even though the process terms: the report on which the ‘whistle’ is may conclude that the report lacks purpose blown may take on public proportions that go or basis, we will still have learned something far beyond the ‘blower’s’ own experience. This about the environments, practices, networks, means that individuals and groups must be worlds and how to conduct the investigation protected, but the alerts themselves must be in those places. I therefore defend a radically protected too, by giving serious consideration open processing of any kind of report, to the problems or causes the whistleblowers especially since false alerts are a way for us are exposing or defending. to verify our verification ability. This is absolutely fundamental. You are testing your Accordingly, a good, straightforward definition own ability to appraise and investigate, and of blowing the whistle is to spark a process this creates collective supports. Obviously of mobilisation. One of the key thinkers for there are alerts that appear false or poorly grasping issues of public concern is the US orchestrated from the start, and which prove pragmatic philosopher John Dewey. How do to be serious and shift the course of things public problems come about? How, also, do suddenly, sometimes with a delay incurring communities come about which, through liabilities. Once again, the idea is to sound their comparative deliberations and actions, the alarm before it’s too late. A real “issuer of change the way in which citizenship is alerts” is therefore someone who takes action exercised and put the idea of democracy into at the earliest possible opportunity. If you issue practice? Democracy is a continual process a report on the effects of the Iraq war in 2008 involving discussion, questioning, mobilisation or 2009, it’s already too late! and reconsideration of the way in which we frame the problems that arise over time. The second version of someone who issues Among the pragmatic maxims is the notion reports is similar to the English concept of of investigation. This is not limited to police ‘whistleblower’, which is now widely used and investigations, which sometimes take on a refers more to the act of speaking out against pejorative meaning – especially in a world fraud, unlawful practices, corruption or abuses grappling with the implications of surveillance. of power. This definition has been brought to It also extends to collective research, open Europe by groups working more particularly science in the making, to participatory on economic and financial crime. It has ended investigations. Alerts lead to collective up becoming the predominant term, and it is inquiries and, as such, always have something clearly seen in the 2013 Blandin Act and 2016 to teach us. Even false alerts can inform about Sapin Act. If we dig a little deeper, we learn the ways we examine, assess and probe reality. that the American whistleblower also has a From this point of view, science is simply an long political history. The two concepts need organised, rationalised, formalised way of to be regarded by learning to distinguish the conducting investigations, with methods that processes. should be accessible to everyone.

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Because the consequences are different, to build evidence, even for scientists: you need depending on whether you are issuing a report controversies, studies, to check, cross-check, (a ‘lanceur d’alerte’), who takes early action, argue, publish and compare experiments and or you are a whistleblower, who takes action data. It’s a very long process. So we need after the fact, once the damage has already bodies, an institutional ecosystem, groups been done. Above all, the burden of proof is of investigators and above all guarantees of not the same and I would like this aspect to be independence when conclusions are drawn worked on in the transposition of the directive and weigh in on decisions. This is where the that I have read through more than once. This role of the Ethics Committee, the Defender of is a point that must absolutely be clarified. Rights, but also National Whistleblower Center The 2013 Blandin Act incorporated the idea (Maison de Lanceurs d’Alerte), as well as many of uncertainty and the necessary opening other bodies formed based on the subjects at up of research, associated with the proper issue, comes in. What’s important is to be able interpretation of the precautionary principle. to receive reports and examine them by taking If the burden of proof is placed on someone into consideration the necessary distinction issuing a report who only has clues, some between the issuers and the reports, and of the facts or pieces of the puzzle, thereby above all by keeping a close eye out for efforts requiring them to provide proof of what they to influence decisions or conflicts of interest are announcing, they will be put in a very which undermine the expert appraisal and difficult situation. In many areas, it takes years assessment processes.

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An environmental and health issue

CONTRIBUTION BY MARIE-CHRISTINE BLANDIN

Marie-Christine Blandin is a pro-environment politician. Senator in 2001 and member of the Parliamentary Office for Assessing Scientific and Technological Choices, she has co-chaired the biodiversity and GMO groups of the Grenelle Environment Forum. Author of the report on household pollutants, she has played an active part in the senatorial investigation committees on asbestos, managing the flu pandemic and Mediator. She is the author of the 2013 legislation on “the independence of health and environmental appraisal and protection of whistleblowers” and has been appointed Chair of the national committee for ethics and reports in public health and the environment (cnDAspe).

"REPORTS CAN ONLY BE MADE proportionate measures aimed at preventing AND DEFENDED IF THEIR ISSUERS ARE a risk of serious and irreversible damage to PROTECTED BY THE RIGHT TO EXPRESS the environment”. THEIR VIEWS." If we admit that the law and standards reflect the certainties of the time and that the institutions apply them, then the indication Concerning the environment, the question of "lack of certainty” opens the door to other the relevance of protecting whistleblowers issuers of messages and to their consideration. can only be broached after recalling, on the This indication introduces into the public one hand, the emergence of environmental sphere - no stranger to the concept of danger protection in law and, on the other, the close and prevention - the new indications of “risk” connections between the environment and and “requirement to act even without proof”. health, and especially the interdependency between humans and ecosystems. Before the A decade later, the environmental charter, institutional texts, there was such intellectual despite the disapproval of the French output as the publications of the Club of Rome, national academy of sciences, became the as well as grassroots movements. One book, preamble to the Constitution and enshrined Rachel Carson’s Silent Spring, was an effective the precautionary principle. After Article 1, report, which eventually led to DDT being which confirms the right to live in a balanced banned in the US. She personally suffered the environment that does not harm our health, consequences. comes the sentence: “Anyone is entitled to play a part in protecting and enhancing In France, the 1995 Barnier Act transcribed the environment”. We might consider that a the commitments of the Earth Summit, with whistleblower is playing a part, in a specific the indication: “The lack of certainty should albeit necessary way, in this protection. not delay the adoption of effective and

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Finally, the 2009 Grenelle legislation of ill-health, and found that 1.5 million deaths mentions the necessary involvement of all the could be avoided every year, attributable to air stakeholders in the report, and proposes an pollution, water unfit for drinking, hazardous account on the relevance of a High Authority chemicals, polluted acid waste and climate for the protection of whistleblowers, ethics change. But these statements are not widely and expert assessment. This High Authority, acted upon. Just as the emergency crews proposed in the 2013 legislation, would end and funeral homes sounded the alarm about up being reduced to a mere Commission, the heatwave of 2003, so whistleblowers are before being stripped of its mission to monitor lifting the lid on environmental contamination, report messages through the 2016 legislation, new diseases, suspicious deaths, delayed and eventually deprived of any direct links effects, the effects of low exposure over long with citizens in favour of MPs or associations periods, emerging signs and even experts’ which, as legal persons, would be without conflicts of interest. Sea Shepherd is speaking protection from the law. out about the fact that our oceans are dying, and L214 is exposing prohibited practices in The administrative implementation of the slaughterhouses, which ought to be under Environmental Code is based on designated the official authorities’ scrutiny. Asbestos, areas, indicators, inventories, watchdogs agricultural GMOs, the Minamata Bay and even outreach bodies. Flood-risk areas, community which suffered mercury poisoning, thresholds, flood alert levels for a river, the Mediator… the system always plays out the Air Quality Observatory, list of endangered same way. species… provision has been made for all these, but the official safety net cannot provide Initially, the authorities are blind to the all-round protection. It is an employee that has problem, citizens sound the alarm but their just sounded the alarm about the 400 litres pleas are not heard. Then, the authorities of acid dumped into the River Fensch minimise the problem or make reprehensible by ArcelorMittal. choices. For asbestos, a standing committee bringing together manufacturers and Farmers are the ones proving that, after physicians was set up, and use of the pesticides, not all bees die, but they are no carcinogenic product was extended. For longer able to communicate or find the hive. Mediator, the professionals sent Servier’s The climate protests are being led by our representative to the drug monitoring youth. The links between health and the commission. For agricultural GMOs, the environment come down to common sense presentation of an alarming study was for the small child who suggests changing the removed from an international symposium. aquarium’s water when their goldfish begins At the same time, whistleblowers’ lives to look unwell, but the same cannot be said are fraught with problems. Colleagues of the Ministry of Health. And it’s only in the and managers put pressure on both Irène name of multidisciplinarity that, since 2004, Frachon and Christian Vélot, on account of his national health and environment plans have publications on GMOs. Researchers’ funding been drawn up. Unfortunately, the shift to an dries up – as happened to Robert Bellé from environmentally- and health-minded culture is Roscoff (Brittany), who demonstrated the proving difficult. The inspectors’ reports on the pathogenic effect glyphosate has on sea latest plan deliver a distressing verdict. urchins. The epidemiologist William Dab had this to say: “Seldom does a public policy fail at such Next, lawsuits are filed, such as against Pierre a level”. Meneton, who alerted about the effects salt has on our health. Layoffs are announced – as The European Union and WHO hold ministerial happened to André Cicolella, who was the first conferences every five years. The last one to raise the alarm about cases of hazardous addressed the environmental determinants glycol ethers.

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Finally, the scandal breaks out publicly, the Today, they are out of work. If they’d had the wounded, the dead, the distressed are assurance of fully-fledged whistleblower counted, sentences are handed out and protection, how many women would have been public compensation budgets are passed, but protected from these adulterated implants? identifying the culprits and holding them to To conclude, reports can only be made and account is an uphill struggle. defended if their issuers are protected by the A few legislative improvements are passed. right to express their views, which has, alas, But none of this makes the suffering, the become a derogation in the trade secrets costs, the bitterness go away - lives remain legislation5. Environment, and therefore health, destroyed for the victims and upended for all reports, cannot be lumped in with the Sapin those who dared to say what the system was Act, which manages capital flight but not refusing to. mercury leaks. They must be treated as an altruistic societal contribution, which plays a For the few brave ones whose sincere part in careful monitoring, enriches knowledge indignation drives them to come forward and and qualifies public decisions, guiding them dare to appear disloyal to the institution, how towards a more desirable future. many have stayed quiet for fear of retaliation, loss of respect – if not loss of employment? The employees making the PIP breast implants said after the scandal that they knew.

5 ACT no.2018-670 of 30 July 2018 on the protection of trade secrets. 15 COMPARATIVE PERSPECTIVES | PROTECTING WHISTLEBLOWERS: A EUROPEAN CHALLENGE | 2020

An economic and financial issue

CONTRIBUTION BY CHARLES DUCHAINE

Charles Duchaine is a judge. An investigating judge at Aurillac Regional Court, then Bastia Regional Court before being appointed Vice-Chair in charge of the Economic and Financial branch between 1999 and 2004, he has also been appointed Vice-Chair in charge of investigations at Marseille Regional Court and coordinator of the specialised inter-regional court with special responsibility over economic and financial cases. Named head of the Agency for the Recovery and Management of Seized and Confiscated Assets (AGRASC) in 2014, on 30 January 2017 he was appointed Chief Inspector of Justice, hired out to the Minister of Economy and Finance to lead the French Anti- Corruption Agency.

"THE FINANCIAL STAKES ARE BY NO MEANS services performed for the community, the INSIGNIFICANT, SINCE A REPORT CAN END quality of care administered in hospitals, the A SITUATION AT A COST FOR A COMPANY, security of listed facilities, environmental protection, citizens’ trust in their institutions OR WHICH INCURS THE COMPANY’S and, ultimately, on our own survival and that LIABILITY AS REGARDS THIRD PARTIES." of democracy. Where do whistleblowers come in regarding The stakes are what we risk, what we have to the anti-corruption system? This system, as gain and lose. From an anti-corruption point of defined by Article 17 of the December 2016 view, I ask myself what can be lost or gained legislation on transparency, the fight against in economic and financial terms by claiming corruption and modernisation of economic to protect whistleblowers. Whistleblowers life, comprises a set of eight measures and evidently address economic and financial procedures aimed at preventing and detecting concerns, but it would be a mistake to think integrity violations within an entity, which that the only fallout from corruption is could be a large corporation or a government economic and financial. Unfortunately, the authority. Briefly, part of our Agency’s remit fight against corruption must also, directly or involves ensuring that these measures are indirectly, address a host of other issues. While effectively implemented, and by “effectively” the financial consequences of corrupt people’s I don’t simply mean putting on an outward greed and the resulting squandering of public appearance of that being the case, but resources are obvious, these also have an checking that they are effectively rolled out impact on the objectiveness of scientific across the occupations of the authority in research, the competence of officials recruited question or the company. by public authorities, the quality of work and

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Of these measures, risk mapping, which To ensure that integrity violations come to forms the basis of the anti-corruption system, light, the lawmaker has in fact made provision identifies the risks of integrity violation for several mechanisms according to which existing in an entity and their score in terms the report is aimed at reporting a crime or of occurrence, i.e. how likely they are to occur, offence altruistically and in good faith – this and their impact. Various measures aimed at is Article 8 of the law – by providing the preventing and detecting corruption underpin whistleblower with specific protection against this risk mapping. These preventive measures the discrimination they might endure, or that it include the adoption of a code of conduct is aimed at uncovering a breach of the entity’s which defines and illustrates the different anti-corruption code of conduct – this is what types of behaviour likely to characterise these we mentioned earlier, and is enshrined in offences and thus to be prohibited, training of paragraph II, Article 17. the most exposed staff and managers within Alongside police investigations and self- the company, assessment of the situation reporting, which are encouraged by the regarding customers or tier-1 vendors and Act of 9 December 2016 – not least via intermediaries, as well as oversight and the introduction of a sort of plea bargain assessment of measures implemented under (the judicial agreement of public interest) – the anti-corruption system, which means an whistleblowers are the surest way of exposing audit of its reality and effectiveness. covert crimes, particularly economic crimes. With respect to detection measures, Article 17 This obviously applies to corruption, but also all provides for the organisation of internal and types of economic and financial crime, which external accountancy auditing procedures tend to be rampant yet concealed. as well as the implementation of an internal The resources allocated to police reporting system aimed at collecting reports investigations are pretty meagre. In its made by employees concerning the existence Observation to the government (référé) dated of practices or situations that run counter to 12 December 2018, the Cour des comptes the corporate code of conduct. (supreme body for financial control) found Regarding whistleblowers, the French Anti- that, in light of both the qualitative and Corruption Agency is tasked with checking quantitative development in terms of offences, that the tools are in place, and that they are the organisation and resources allocated by indeed available not just to company staff the Ministries of the Interior and Justice to but also to its partners. Reports are therefore combating economic and financial crime laid a key detection measure, in that they enable bare weaknesses which “partly explained an entity whose preventive system has not the partial and late nature of the criminal been able to stop offences from occurring response”. The Cour advocated better use of to minimise the duration and impact of the the resources existing in the two budgetary corruption that might be committed in-house. missions concerned, in the choice of cases On the basis of ex-post processing of reports, and their processing, and adoption of a the risk mapping process can also be rounded more selective approach that more closely off, corrective measures adapted accordingly addresses the effectiveness and time limit of and, more generally, the system for preventing criminal responses. and detecting instances of corruption updated. The fact is that our statistics-driven society of the past few years has largely fuelled certain behaviours to the detriment of effectiveness.

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As such, the processing of cases which give Only the threat of foreign lawsuits or the fear of rise to visible protests immediately breaching a whistleblower taking action – in a word, the the peace and leading to official observations, fear of a trial or a disclosure – can convince reports or complaints is given systematic businesses of the need to go of their own precedence over the processing of cases, volition to their national court to try and wipe which are usually much more serious, but are clean their corrupt deeds. out of public view. It is important to protect whistleblowers, but In a nutshell, the desire to improve the this is undoubtedly not enough. With respect clearance rate of crimes and offences to combating organised crime, it has long been recorded, to an ever greater extent, and which acknowledged that gaining inside knowledge could cast doubt in voters’ minds over the of the criminal activity was a challenge from authorities’ ability to keep the peace, leads to the outside, and that, to do so, infiltration or the focus being put on visible crimes with no handling of informants was necessary. The interest being paid, unprompted at any rate, principle of systemic, deep-rooted corruption to invisible ones which, known to no one but is that whoever eats the cake drops crumbs their perpetrators, obviously do not end up and that those who pick them up therefore lengthening the list of unsolved offences. have no interest in ratting them out. The system has been designed to last. What’s more, I am not mentioning the lack of sufficient collective determination either, If we want to crack down effectively against which alone could determine the resources, corruption, we need to exploit the weaknesses and the essentially secret nature of crimes of those who, by being in the system violating the duty of integrity, making their themselves, are the best placed to expose detection and bringing to justice uncertain. it. The police, tax and customs authorities Even though self-reporting is encouraged by all have their informants, all of whom are the introduction of the judicial agreement of likely to receive payment. Why does the anti- public interest, it is hardly more effective, since corruption system not remunerate businesses do not tend to voluntarily throw its whistleblowers? This is a question that themselves into the lion’s jaws by confessing needs to be asked. In some countries, it does. their crimes to the Public Prosecutor’s office. We will not restore any kind of balance in relations with the United States if we are not Why don’t they? Because they do not fear the capable of leading the way in prosecutions. courts, because they know that the time that Yet leaders in prosecutions are the ones who has passed will reduce the sentence and that obtain the intelligence first. By financially reticence and lies are not punished. rewarding whistleblowers, United States will maintain the upper hand.

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An economic and financial issue

CONTRIBUTION BY PATRICK MOULETTE

Patrick Moulette is head of the Anti-Corruption Division within the Directorate for Financial and Enterprise Affairs at the OECD (Organisation for Economic Co-operation and Development). After a career at the French Ministry of Finance’s Treasury Directorate, he joined the OECD in 1991 as a member of the Secretariat and then as Executive Secretary of the FATF (Financial Action Task Force), an international body tasked with protecting the global financial system from money laundering and terrorist financing.

"WITHOUT EFFECTIVE LEGAL PROTECTION Why protect whistleblowers? There are AGAINST RETALIATION, WHISTLEBLOWERS major risks across the board. In the sphere REMAIN SILENT." of corruption, one example is the Odebrecht scandal, a sprawling corruption case affecting every single Latin American country – but The OECD is primarily known for its reports on particularly Colombia. A whistleblower, the economy, environment and educational manager of the “Ruta del Sol II” project, Jorge performance of different countries, but Enrique Piziano, and his son, were found dead, perhaps not well enough for its Convention on poisoned by cyanide after the corruption report Combating Bribery of Foreign Public Officials. he had made in this case. Against this backdrop, protection for whistleblowers is a core aspect of the fight Typically, without effective legal protection against corruption. against retaliation, whistleblowers remain silent. In a 2017 poll among more than 28,000 How can corruption offences be detected? people across the European Union, 81% of With great difficulty. Whistleblowers are a respondents had not reported the instances major potential source of information that is of corruption they had witnessed. still not sufficiently leveraged. In reality, where they have effective protection, they can report Regarding the economic and financial aspects, suspected economic and financial fraud in what is at stake for businesses? What is their general, not just in cases of corruption. By financial interest in setting up a protected this I mean suspected fraud that would not reporting framework? Quite simply, if there be uncovered by internal investigations or were protected internal reporting mechanisms, sources, particularly within companies. this would help businesses to learn about embezzlements earlier and perhaps then reduce the loss of corruption-earned profits.

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This is the best-case scenario. Businesses It is important to point out the wide disparity who receive internal reports may also take between States having signed the OECD advantage of the option of reporting them of Anti-Bribery Convention, in terms of their own accord to the judicial authorities protection for whistleblowers. Across several at an earlier stage. And in some countries, countries, whistleblowers are only afforded take action such that the case is brought to partial protection, with the law prohibiting a swifter close, which generally gives rise to workplace harassment and unfair dismissal lesser sentences. for example. In some countries, protection is only applicable to some sectors. The public There are also financial implications for the or financial sectors for example. In addition judicial authorities, which are not insignificant to the OECD Convention, there are other in some countries. In the US, for example, multilateral anti-corruption agreements. All of an account by the Securities and Exchange these instruments recognise the importance of Commission6 (SEC) notes that monetary protecting whistleblowers, but the protection sanctions ordered based on intelligence standards vary from one country to another. obtained from whistleblowers stand at USD 2bn in 2019. This is a significant financial This is where progress needs to be made. figure. There have been breakthroughs, including the new European Union Directive and the What are the potential financial implications G20 principles for the effective protection of of making a report for whistleblowers? Today, whistleblowers, but there is still a long way to only three countries, having signed the go to harmonise standards at global level. OECD convention, grant financial rewards to whistleblowers. These payments can Some figures to conclude: out of the encourage them to report wrongdoing, but 44 member countries of the working group, also provide them with financial assistance which signed the OECD Convention, and the to cover living or legal expenses in the event 19 member countries of the G20, 16 have of retaliation. These countries are Korea, the no form of legal protection. In 6 of the United States and Lithuania. 32 countries that provide whistleblower protection, this is limited to public sector In Korea, between 2012 and 2016 the Anti- employees. Only 2% of cross-border Corruption and Civil Rights Commission paid corruption cases that have been solved or out the equivalent of USD 9.4m for reports of closed were detected following reports by corruption cases. In the US, the figures are of whistleblowers. Much, therefore, remains a completely different magnitude as the legal to be done in this respect. basis is the Dodd-Frank Act7, which is well- known to specialists. This authorises the SEC to grant monetary rewards and encourages it to compensate and reward people disclosing information of their own accord to the Commission who meet the requisite terms. Since the programme launched in 2011, the SEC has paid out more than USD 387m to 67 whistleblowers.

6 Federal US authority for financial market regulation and supervision. 7 The "Dodd-Frank Act" is a US framework act, passed in 2010 while Barack Obama was President, in the wake of the global banking and financial crisis (2007-2008). It entails a sweeping reform across the banking and financial sector, in terms of consumer protection as well 2 0 as corporate governance. COMPARATIVE PERSPECTIVES | PROTECTING WHISTLEBLOWERS: A EUROPEAN CHALLENGE | 2020

Presentation of European systems

CONTRIBUTION BY KIM LOYENS

Dr Kim Loyens is assistant professor at Utrecht University School of Governance (Netherlands). She has conducted extensive research particularly on whistleblowers; inter-organisational cooperation in policy delivery; street-level decision-making in the fight against labour exploitation; and trafficking in human beings by police officers and inspectors. Her work has been published in a book entitled Administration and Society, Innovation, International Journal of Public Administration, Journal of Business Ethics, Regulation (Administration et Société, Innovation, Journal International de l’Administration Publique, Journal de l’Ethique Commerciale, Régulation). Her research has also been published in works on street-level bureaucracy and regulation. She is presenting a study conducted in 2017 and 2018, commissioned by the Dutch Whistleblowers Authority, comparing their external reporting system with other comparable agencies worldwide, which combine prevention missions concerning whistleblowers – advice, investigations and protection – and whistleblowing policies. You can find the study here:https://www.mdpi.com/2076 3387/8/3/30; https://www.uu.nl/en/news/coherent-approach-dutch-whistleblowers-authority- internationally-unique

"CONFIDENTIALITY IS THE MOST That said, in the majority of countries, a work SYNONYMOUS WITH PREVENTION relationship is necessary to secure protection. OF RETALIATION" In some countries, Belgium for example, the scope is limited to the public sector. Protection should therefore be extended to other sectors. The European Directive has a far-reaching Moreover, a number of experts have raised scope. The second part of the Directive forms a concern about the reporting authorities, the cornerstone of our study; it is aimed at the and the European Directive does not address organisation of protection for whistleblowers. this concern regarding agencies that want to It does not provide for a single whistleblower protect whistleblowers and suffer retaliation. protection model; each country must therefore work out how it is going to organise the model How should protection for whistleblowers be itself. organised? In our study, we included not only NGOs but also reporting authorities. We found Who can make a report? Most of the countries that some governmental protection agencies, we have analysed, both within and outside the such as in the Netherlands, performed EU, have a fairly broad scope – anyone can activities and missions which, in other issue a report and be protected. countries, would be carried out by NGOs trying to fill in the gaps.

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We also looked at conflicts of interest in our There is particularly an NGO that trains judges. study. In the Netherlands, for example, the These judges must have a certificate before advice given by agencies has been criticised being able to handle whistleblower cases. for not being neutral enough. This is why in Judges who have received training have other countries, like Belgium, the advice stage a completely different perception to other stops as soon as the investigation begins. judges. This means there is only a pre-advice stage: Are we capable of providing effective the person is told about the procedures, the protection? Can these specific courts really pros and cons of reporting. As soon as the make a difference for whistleblowers? investigation begins, they are then referred Retaliation is one of the main risks for to other bodies, sometimes NGOs, which will whistleblowers. As a result, preventing it monitor and keep advising the person. The would, in an ideal world, be the best possible governmental agency steps back at this point. protection for the whistleblower. But Another conflict of interest may arise when prohibiting retaliation is not enough. The best different types of investigations begin at solution would therefore be to enable the the same time. There may be one on a whistleblower to return to their former position wrongdoing, and another on the retaliation after suffering retaliation. In most countries, suffered by the whistleblower. In many whistleblowers must go to the courts, but countries, these two types of investigation are they can draw on the investigation carried out kept separate. But some countries refuse to by these reporting bodies. Some countries do things this way, on the grounds that these have also introduced alternative solutions investigations are objectively connected, and that bring short-term aid to whistleblowers, should not be separated. Countries that do because of their immediate effect. During conduct the investigations separately explain proceedings before the courts, five or six years that a higher degree of neutrality is called can often go by when nothing happens, when for when investigating wrongdoing only if it the whistleblower’s position is not reinstated. bears on retaliation. This is not how I see it, Provisional reinstatement can take place as in most countries, when we are looking for immediately, but there are other options, such protection, we have to go to the courts. as mediation or the person’s voluntary transfer. So there is little point in having an investigation The whistleblower might not necessarily wish into the retaliation conducted by a body that is to return to their former position, as relations not regarded as neutral. It would be better with their colleagues have broken down. – particularly when retaliation is at issue – So confidentiality is the most synonymous for a neutral body to conduct the investigation, with prevention of retaliation. To conclude, so as to furnish the court with evidence that I will cite one of the respondents to the the retaliation really took place against the survey: "The best protection you can offer a person. whistleblower is to keep their name secret. In some countries, training programmes The law on whistleblowers is only a necessary are organised on how to implement internal judicial safety net in situations where reporting procedures, as well as on how judges everything is going wrong, but it can provide should handle whistleblower cases. real protection.” And the European Directive lays down penalties for people who violate the confidentiality duty as regards whistleblowers.

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What systems are there in Europe?

ITALY BY LAURA VALLI

Laura Valli is senior advisor at the Italian Anticorruption Authority, based in Rome. After graduating in law from the University of Bologna, she initially worked as a judge and prosecutor in Italy for ten years. She then moved to Washington (United States), where she worked at the World Bank Group as a senior investigator and ethics officer for 16 years.

"IN ITALY, THERE IS STILL A LOT OF In terms of retaliation, the law only mentions RESISTANCE REGARDING THE VERY NOTION organisational measures as possible retaliation OF WHISTLEBLOWER ACROSS GOVERNMENT." measures. This limits retaliation to official action and organisational measures of the government department. But the aim is to The notion of whistleblower, as an anti- expand this definition, in keeping with the corruption tool, was introduced in Italy by the directive, to include any action causing harm 2012 anti-corruption legislation. This law only to the whistleblower. The burden of proof is provided for whistleblower protection in the on the employer, in the private and public public sector. The 2017 law strengthened the sectors alike. The employer must therefore protection provided for in the 2012 law, and prove that the retaliation measures observed also extended it to the private sector. are unrelated to the disclosure. This is a very Italy has a good, fairly broad definition of what important measure. can be considered a whistleblower. But this At ANAC, because we are an administrative needs to include jobseekers and volunteers, agency, we are authorised to enforce monetary as stipulated by the directive. With respect sanctions against the perpetrator of measures to protected disclosure, the Italian definition or deeds representing a form of retaliation, is also fairly broad. It lays down a notion of or against the anti-corruption officer of a public interest, which is not invalidated by a government department that had not duly and concomitant private interest. Good faith is not effectively acted upon a report, or had failed to a legal requirement. This is also a notion that set up an action mechanism. the European Directive takes into account. As regards the private sector, protection As regards reporting bodies, there are is limited to companies with compliance several in Italy. Whistleblowers can either programmes in place. This is quite distinctive reach out to ANAC, which is Italy’s central as it is not compulsory, and is limited to these independent anti-corruption authority, or to companies only for now. the anti-corruption officer of each government department. They can also go directly to the judicial authority. There is still no protection for reports to the media.

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But with the European Directive, we will have To conclude, history has shown us that to extend it to all companies with more than 50 whistleblowers are an anti-corruption tool. employees. The European Directive broadens the notion of whistleblowing, which it considers to be What are the figures at ANAC at the end of the expression of a human right to freedom 2019? ANAC received twice as many reports in of expression and freedom of information. I 2018 as it did in 2019. The number is going up believe this is what we need. We need to bear exponentially. By way of comparison, the local in mind the fact that whistleblowing presents anti-corruption office received much fewer an ethical dimension and a political dimension. reports than ANAC. This begs the following This notion is changing, from protection for question: why do employees trust a central disgruntled employees all the way to the authority more than a local mechanism? This dissemination of information to the public. We is one of the observations we can make. need to adapt along with this change through What’s more, there is still a lot of resistance a cultural shift where the notion of a report is regarding the very notion of whistleblower something positive, and which strengthens the across government. Many people tend to think idea that our democracies are fundamentally that this is part of Italy’s cultural heritage, accountable to citizens. and tend to prefer “shooting the messenger”. From their point of view, the problem is the whistleblower and not the malpractice he or she has reported. What does ANAC do and what will it do in the future? The main purpose is to provide training in the public sector and training in schools in liaison with the Ministry of Public Education.

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What systems are there in Europe?

THE UNITED KINGDOM BY ELIZABETH GARDINER

Elizabeth Gardiner joined Protect, the UK’s main whistleblowing charity, as Legal Officer in July 2018, becoming Acting Chief Executive in December 2019. She also draws on her expertise to inform the charity’s policy, and runs training programmes for employers. Before retraining as a solicitor in social law, she worked as a policy officer and in Parliament.

"WE ARE BEGINNING TO SEE SOME In the UK, a worker can benefit from protection CHANGES, BUT THEY ARE SLOW COMING, if s/he makes the disclosure by following the AND THERE ARE STILL MANY GAPS IN appropriate procedure, and this protection will differ depending on whether the disclosure is THE LAW." made to the worker’s employer, a regulatory body or the press. For the first case, there is Protect has been an active charity for 25 years. a test to undertake. But you do not have to It was set up in the wake of a string of scandals contact your employer first. When someone in the UK. It has a twofold role: providing free discloses a matter of concern, they must legal and confidential advice to some 3,000 reasonably believe that the disclosure tends workers a year, and training employers in to show that one of the categories of concern improving practices. Its predecessor, Public is engaged. The further you go, the more Concern at Work, played a part in bringing complicated the test becomes. If you disclose about one of the very first pieces of legislation your concern to the press, the reasonable on whistleblowers, dubbed the “Public Interest belief criterion must apply in all circumstances, Disclosure Act”, in 1998. More than twenty unless it has to do with a particularly serious years later, this Act is very much in need of matter. reform. I’m going to spend a bit of time telling In the UK, protection does not live fully up to its you about our current legislation as well as name. There is a remedy option if you suffer some significant changes that have occurred a loss, i.e. a disadvantage of any sort, or if you in the UK since 1998. have been sacked for raising concerns. This In Great Britain, with very similar provisions is therefore a very personal right, concerning in Northern Ireland, we therefore have this employment, which provides a remedy in the “Public Interest Disclosure Act”, which defines event of wrongdoing. It is worth noting that the six major categories of wrongdoing: a criminal law asks nothing of employers or regulatory offence, the breach of a legal obligation (very bodies. broad category), a miscarriage of justice, a Changes have taken place since this legislation danger to health and safety, damage to the came into force. The first is that the criterion environment and concealment of information concerning public interest has been amended. tending to show any of the above five matters.

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Initially, the Act called for good faith. The There were no reporting channels, nor whistleblower had to demonstrate his or her obligation even for the employer to follow up on good faith. But this was found to be fraught reports. And the law was unclear as to whether with difficulty, both in terms of the employer, employers should be accountable solely for the which tried to discredit the whistleblower, conduct of a whistleblower’s superiors in the and for the courts, which spent a long time latter’s regard, or for the conduct of his or her considering the whistleblower’s motives. So colleagues too. If a whistleblower is intimated this criterion has since been abolished. Public by colleagues, should the employer be held to interest has taken its place. This is not easy account? Once again, the courts have replied to prove. With respect to the UK, it involves in the affirmative, and superiors can also be considering the number of people affected, held personally accountable for harm suffered. the gravity of the concern, if the misconduct is We are beginning to see some changes, but deliberate, and its perpetrator’s identity. they are slow coming, and there are still many Another change that has taken place in the gaps in the law. In other areas, regulatory UK is the extension of the protection scope. bodies are making changes. The British The law provides a fairly broad definition of Government has drawn up a list of more the term “worker”, but many categories – even than 90 people you can report malpractice though they relate to the world of work – are to. It is very difficult for someone to know still excluded, particularly the self-employed, who is competent to take up the matter. And volunteers and non-executive directors for the regulatory bodies have very different example. This has been offset, in a piecemeal processes for managing and assisting manner, by Parliament, and various charities, whistleblowers. Some are only interested in and scandals – in the health service in the facts reported, while others believe they particular – have widened the scope, such that also have a duty to protect whistleblowers. jobseekers are now covered in the healthcare Two sectors, in the UK, stand out in the way sector, but not elsewhere. they are developing change in this area: the financial sector and the healthcare sector. A point about human rights. We recently Regulatory bodies now have rules to follow got involved in a case that went all the way and expectations as regards employers. They to the Supreme Court. A district judge had conduct monitoring and investigations, and spoken out about concerns relating to health the financial conduct authorities can fine and safety at her court, but the inferior court employers who mistreat whistleblowers. decided she was not a worker and therefore was not entitled to whistleblower protection. To end, which way is the UK heading now? At Eventually, the Supreme Court declared that a Protect, we have decided to draft our own bill district judge should benefit from the human as a contribution to updating the legislation. To right to freedom of expression, and that it do that, we are drawing inspiration from best would be discriminatory not to afford her practices worldwide and taking the best points protection. The law must now be interpreted to from the European Directive to prepare a new include judges, but it is difficult to know who piece of legislation, which we will present to else could be covered by similar arguments. the Government after the elections. Accordingly, employers were not initially held to the slightest account in this regard.

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We are asking people to consider the issue Finally, we suggest creating the position of an and tell us which are the key areas, in their independent commissioner for whistleblowers, view, that we should develop or to which the who could investigate when an employer or protection scope should be widened, so that a regulatory body either does not take the many more people are covered by the law. We report seriously, or has failed to prevent the want applicable standards for businesses to whistleblower from suffering retaliation. be drawn up with input from employers and Whatever the UK’s future within or outside the regulatory bodies. In order to ensure adequate European Union, we remain fully committed to protection, we want employers to be required ensuring that the UK aligns with the very best to protect whistleblowers from harm, rather practices worldwide. than leaving individuals to have to find a solution on their own when things have already taken a turn for the worse.

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What systems are there in Europe?

THE NETHERLANDS BY WILBERT TOMESEN

Wilbert Tomesen has chaired the Dutch Whistleblowers Authority since July 2018. From 2011 to 2018, he was a member and deputy chair of the Dutch Data Protection Authority. Prior to 2011, he worked as principal state counsel at several Dutch courts, as well as prosecutor at Aruba, in the Dutch West Indies.

"I CALL ON ALL MEMBER STATES TO ENACT Moreover, the current legislation entitles LEGISLATION MEETING THE HIGHEST employees to confidential advice, from a legal POSSIBLE STANDARDS" advisor, prior to any report. On our website, we have published a practical guide this year – which is also available in English. The European Directive is a great opportunity for our countries to improve protection for In the Netherlands, the reporting system whistleblowers and to contribute to the comprises three stages. Individuals must make integrity of our society. an internal report within their organisation first, before being able to contact the external As regards the system in force in the authorities, such as the public ministry. Netherlands, similarities can already be Finally, they take their report to the Dutch observed with the Directive, even if further Whistleblowers Authority. But this system change is required. The Netherlands has is poised to change. Whistleblowers will be had specific legislation on whistleblowers entitled to contact the dedicated authorities for more than three years, passed in the directly, whereas this is something they cannot summer of 2016. The most important provision currently do. in this legislation is legal protection for whistleblowers. In the public or private sector, What are the missions of this Authority? anyone who reports potential wrongdoing in We were behind the legislation on good faith should not suffer retaliation. whistleblowers passed three years ago. We are an independent public body. We In the Netherlands, every employer of a public have three main tasks. First, we give or private organisation with over 50 employees whistleblowers confidential advice. We must implement secure internal reporting investigate malpractice, cases of retaliation channels for whistleblowers. One year after and, naturally, we try to promote integrity. This this requirement came into force, half of range of missions – advice, investigations and employers in the Netherlands have fulfilled prevention – places us, in the Netherlands it. This requirement is also upheld in the at any rate, centre-stage when it comes to European Directive. whistleblowers and integrity.

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One of the reasons why we commend There is another possible improvement this directive is that, across all of the EU I should like to highlight: the financial Member States, the idea is that specific assistance that the directive promises State authorities will be designated to protect whistleblowers. Based on our experience whistleblowers and investigate their reports. in the Netherlands, when whistleblowers Indeed, we hope to see other centralised encounter problems, these are always partly structures come about in Member States over financial. In my country, the Ministries of the the next two years. Interior and Justice and MPs are putting this part of the directive into practice. But this This directive advocates international financial assistance should not be seen as a cooperation. To strengthen this, we created reward. It is a way of providing whistleblowers a network, which we have called NEIWA8, with financial support and the legal aid they and which has already met on two occasions. need. This is society’s responsibility, for it is During the second meeting, in Paris, we money well spent in my opinion. Our countries welcomed new members. We began with have already organised this type of financial seven, we now have 14, and we hope that assistance, and it works, we also need to do it even more will join us in the future. We have in the Netherlands. published a joint statement which asks all EU Member States to be ambitious and we, We need to learn from each other. as alert authorities, will do the preparatory work and protect whistleblowers who report wrongdoing. Personally, I call on all Member States to enact legislation meeting the highest possible standards to ensure the best possible protection for whistleblowers.

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What systems are there in Europe?

FRANCE BY SÉBASTIEN DENAJA

Sébastien Denaja is a doctor of public law. Since 2019, he has been a lecturer in public law at the University of Toulouse 1 – Capitole and member of the Maurice Hauriou Institute. From 2012 to 2017 he was a Hérault département MP. As a member of the Laws Committee, he was particularly the rapporteur for the Act on substantive gender equality (2014) and the Act on transparency, the fight against corruption and modernisation of economic life (2016). He has been the author of amendments establishing the legal status of whistleblowers and the proposal for organic legislation on the competence of the Defender of Rights to guide and protect whistleblowers.

"WHISTLEBLOWERS ARE OFTEN INDIVIDUALS institutions, which was entirely justified in IN AN EXTREMELY VULNERABLE STATE light of what was the Corruption Prevention MENTALLY AND MATERIALLY SPEAKING." Service at the time – only four people, and no conviction of legal persons for corruption.

The background to the drafting of the Act on This is why the so-called "Sapin II” bill is first transparency, the fight against corruption and and foremost a cross-cutting text. An Act modernisation of economic life, promulgated which created the French Anti-Corruption on 9 December 2016, is important. This was Agency, has regulated lobbying, further after the Charlie Hebdo terror attacks. The empowered financial judges and financial Government and Parliamentary majority were prosecution offices, and endeavoured to wondering how to engage directly with French improve the situation for whistleblowers. The citizens on the matter of trust, which had bill contained almost nothing on whistleblowers been eroded. I am one of those who believed initially – other than elements concerning their that more was needed in terms of the 2013 protection in the financial sector. legislation and the laws that followed on the This is why I wished to seize this opportunity transparency of public life, the Act for the fight to suggest a common pillar of whistleblower against tax fraud and avoidance, which created rights, and thereby try to bring together the French Financial Prosecution Office (PNF). everything that was scattered across This movement chimed with minister Michel incomplete, sector-specific texts in a bid to Sapin’s determination to finish his own work, pave the way to more effective protection dating back some two decades by now, with the for whistleblowers. Of course, the question so-called "Sapin I” Act on corruption prevention of whether this protection should be sector- and the transparency of economic life and specific or, on the contrary, part of a single public procedures. system, is still under debate. This little anecdote aside, the backdrop and the We could never have drafted this text facts were grim. 23 years after the Sapin I Act, without the help of the Conseil d’État report our country still had a long way to go in rooting submitted to the Prime Minister, in the thick out corruption. France was drawing recurring of the parliamentary discussions, or the help criticism from the specialist international

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of nonprofits like Transparency France & Regarding reports, there is still room for International, which had made significant substantial improvement in the text, even if headway on the subject. This was a very we have managed to relax what the Conseil difficult text to write – it took several attempts. d’État proposed along with the different And even that wasn’t enough to end up with a reporting channels: the comments are often satisfactory text on all accounts. mistaken in that respect. There is a great deal of flexibility, in fact. In the law we have defined The aim was to define what a whistleblower an ideal procedure with, first of all, an internal was and to address the question of how the channel, so as not to undermine the authority of report is dealt with. To define the general supervisors, and then an external channel. But philosophy, we drew inspiration from the it is quite possible to go through the external work of the Conseil d’État, which talked about channel directly under some circumstances. “ethical reports”. This is where the notion The authorities and businesses are obliged to of general interest comes in, for at the time set up internal reporting procedures. the inclination was that these would not be remunerated people. We also wanted practical support to be given to whistleblowers, and this is why we had Within this definition, each term addresses made provision for financial support. I was this general philosophy. “An individual”, for we disappointed that the Constitutional Council didn’t want to start looking at the collective quashed this provision. This is a crucial aspect implications of a report – even if new synergies which the authorities will have to reconsider, with the trade unions could be envisaged for as whistleblowers are often individuals in example. “Altruistically”, because the French an extremely vulnerable state mentally and MPs did not want to broach the idea of materially speaking. remuneration at the time. “In good faith”, a term to be used with all the flexibility that must be Lastly, who was going to protect whistleblowers given to this legal expression. had to be determined. The Government was in favour of setting up a new independent The scope of the report is extremely wide. It authority. In line with the recommendations can apply to any offence, crime, violation of of the Conseil d’État and Transparency in a national or international text, so European particular, we preferred to entrust this mission by definition, as well as harm or a threat to to the Defender of Rights. the general interest. This covers everything: the environment, loss for government Today, I am among those who do not regret finances, health threats, etc. Conciliation with that choice. The Defender of Rights is the protected secrets exists, as does exemption highest constitutional independent authority from criminal liability for the whistleblower in the institutional landscape of independent who, in good faith, reveals a secret in certain authorities in France, the most trusted areas. Making obstruction of disclosure an authority by citizens as well as, perhaps, offence is also a key element in the protection the first whistleblower – especially were the offered to whistleblowers. Finally, protection Government not to give it the requisite support of the identity of whistleblowers, protection for taking action. The lawmaker thus sought to against retaliation, with fast-tracked judicial entrust this protection to the soundest, most proceedings in particular, emergency interim firmly established authority in the French proceedings for labour disputes and the institutional landscape, because we were also ajustement of the burden of proof – which thus at the end of a five-year term, and the authority no longer lies with the whistleblower but with – itself deprived of resources no doubt – was the structure s/he is in. under major threat.

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What systems are there in Europe?

CONTRIBUTION BY VIRGINIE ROZIÈRE

Virginie Rozière is a former Member of the European Parliament. Committed to the question of whistleblower protection at European level, she was appointed European Parliament rapporteur on the draft directive, for which she oversaw and concluded negotiations in April 2019. She did not stand for a second term and is now an elected member of Occitania’s Regional Council. She continues to work with public bodies and NGOs in monitoring the transposition of the European Directive on the Protection of Whistleblowers.

"THE DIFFERENCES BETWEEN EUROPEAN Trade secrets, which were considered as a LEGAL CULTURES HAVE GIVEN RISE means of incriminating Deltour and Halet TO MUCH DEBATE, IN PARTICULAR ON during their trial. The attention that was already being paid to the case crystallised, THE NOTION OF "GOOD FAITH" AND THE became increasingly focused, and finally DEFINITION OF AN ALERT." mobilised public opinion, the MEPs that we were, and, of course, NGOs on the question. As French rapporteur for the European As a result, the European Commission ended Directive on the protection of people who up by agreeing to hear a number of arguments. report breaches of Union law, I had the The evolution of certain Member States, and opportunity to work on development of better of France with the work carried out around whistleblower protection in Europe. The the Sapin II Act, certainly contributed to this. mission brought me up against a number of So conditions were finally right to obtain a challenges. The first was to obtain agreement proposal for a directive a year before the end of to the principle of a European Directive. At first, the mandate. Given the time available, we had the European Commission didn’t make things to work under pressure, which played a part in easy for us. It took the combination of a context shaping the end result. with several tax avoidance scandals such as the LuxLeaks scandal. Antoine Deltour and The second challenge was to combine Raphaël Halet were emblematic figures and extremely different situations and cultures played a part in mobilising public opinion, as around the question of whistleblower the very embodiments of what might become protection. To start with, relatively few national of whistleblowers: acting in the general interest frameworks existed. At the beginning of the and getting dragged before the courts. mandate, in 2014, only 6 countries had any kind of protection in place. But the subject led We were also helped on our way by the to action being taken in various countries and adoption of the Trade Secrets Directive just we saw significant developments take place, in as the LuxLeaks scandal was breaking. particular in France, Italy and the Netherlands.

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The differences between European legal Yet distinguishing reporting channels means cultures have given rise to much debate, in creating potentially restrictive conditions particular on the notion of “good faith” and the under which whistleblowers may be afforded definition of a report. On this latter point, we protection. I initially proposed the abolition wanted to adopt the most protective terms of any prioritisation of channels, rather than possible while reaching a compromise. For any form of strict prioritisation allowing example, obtaining a proposal of a horizontal for exceptions. For if the legitimacy of not directive rather than an accumulation of complying with any prioritisation of channels sectoral measures was our key concern when is only assessed at the end of proceedings, confronted with a European Commission via the judge, protection is only afforded once which argued that there was no legal proceedings have been concluded. It will basis in European treaties. The European therefore have been refused throughout the Parliament’s determination to obtain the most time during which the whistleblower should comprehensive framework possible finally have been protected. The compromise that prevailed after a series of heated exchanges was found, following a fierce tussle with the between the lawyers and academic experts Council, is similar to the system in force in put into play by the various institutions the Netherlands. It results in there being concerned. But the adoption of a horizontal no prioritisation between channels internal approach raised a new question: that of its to the organisation and external channels scope of application. As we’re dependent on via an independent authority. Prioritisation the European Union’s competences as defined is maintained with regard to use of public in the treaties, we’ve obtained a scope of channels, but with presumption of the application that differs from those in place whistleblower’s good faith. So now there’s the in certain States. We had a lengthy debate on a priori benefit of protection, even in cases of the inclusion of such social aspects as worker public revelation, which may be withdrawn protection law in the scope of application, later if it’s shown not to have been legitimate, which was not included in the end. As we’ve if conditions for exception were not met. drawn up non-regression clauses, we hope The European Commission played its role of that the scope of application that will be facilitator and enabled a compromise to be adopted in the various transpositions will be reached that will constitute an interesting as wide as possible. starting point for further improvement. Such In addition to the material scope of application, will be the case for the 18 Member States that the personal scope of application was also as yet have no protection, and which will have discussed, in view of whistleblowers’ differing to provide it. It will also be an opportunity for personal situations. In effect, in the Directive harmonising the systems of various States there must be an economic link – not that already provide protection. necessarily a direct one – with the organisation Of course, the Directive doesn’t solve called into question, in order to be protected. everything, in particular questions of States’ Here too, its transposition may enable wider internal organisation as regards methods of action of the personal scope of application. collection of reports, whistleblower protection The conditions for initiating protection also and processing of alerts. It’s difficult for constituted a major challenge. The Directive a European text to put forward a single adopts a tiered approach, according to the framework with any level of detail on questions channels through which a report is issued – that remain essentially within the competence internal to the organisation, external via an of Member States. Obviously, we’re well independent authority, or public via the press, aware that the scope remains completely for example. open and will be of crucial importance to the effectiveness of the protection provided.

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Of course, the reality of protection depends on In this respect, I think that the work carried out the legal bases that can be provided in order by the Defender of Rights is a guarantee that to define the framework, but there’s also a these fundamental issues will be taken into practical aspect, enabling whistleblowers to full account. In the two years that lie ahead of have access to information, know their rights us for transposition of the Directive, it will be and be provided with the right guidance and on the basis of this work that France and all advice, and the way in which we’re able to European States will, I hope, be able to provide guarantee them that their reports are properly protection to whistleblowers that meets the processed. goals we’ve set.

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Opportunities provided by the European Directive

CONTRIBUTION BY ANTOINE DELTOUR

A former auditor at PricewaterhouseCoopers (PwC), Antoine Deltour blew the whistle on tax avoidance practices implemented in Luxembourg. The financial scandal broke in November 2014, and was dubbed “LuxLeaks”. It raised the question of tax justice within the European Union by revealing the content of several hundred advantageous tax agreements concluded by audit firms with Luxembourg’s tax authorities on behalf of international multinationals. Antoine Deltour was prosecuted in Luxembourg for “domestic theft, violation of professional confidentiality, violation of business secrets and laundering of acquired data” and sentenced in first instance to 12 months’ imprisonment suspended, and then, upon appeal, to 6 months’ imprisonment suspended and a 1,500-euro fine. He was finally acquitted by Luxembourg’s Court of Cassation and recognised as a whistleblower in 2018. Now a member of the Board of Directors of the non-profit whistleblower centre (Maison des Lanceurs d’Alerte), Antoine Deltour continues to work for the recognition and protection of whistleblowers.

"TAX OPTIMISATION SIMPLY CONSISTS Luxembourg had a law that protected OF EXPLOITING ALL THE LOOPHOLES whistleblowers, but it didn’t cover my case. IN THE LEGISLATION." If I won in the end, it was only by application of the European Court of Human Rights’ case law, in other words, of supranational law. As it stands today, not all European States Whence the need today to reinforce protection protect whistleblowers in the same way or in order to harmonise European States’ in the same situations. I experienced this for regimes. myself as a whistleblower in the LuxLeaks case. I had to face lengthy legal proceedings in The European Directive’s interest and Luxembourg, which ended with my acquittal advantages are of particular importance to on all charges to do with the report, but only me. For example, in future, whistleblowers will after an appeal hearing, cassation and a benefit from independent advice provided free second appeal. If they’d taken place in France of charge. This may not be much in itself, but prior to enactment of the Sapin II Act, these it may stop them taking pointless risks. The long, stressful and expensive proceedings Directive also provides for whistleblowers’ would have taken very much the same course. exemption from criminal liability, which After the Sapin II legislation, the fight would’ve would’ve been of major benefit in my case. been easier.

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And finally, it reverses the burden of proof in Society needs to provide protection for the event of retaliation and also provides for whistleblowers who report things that are full compensation for harm suffered. This is all not necessarily offences. very good news for future whistleblowers The main challenge in transposing the in Europe. Directive is the extension of the strong What then are the European text’s protection it affords to all threats and serious limitations? First of all, there’s its definition harm to the general interest in accordance of whistleblower, which is much inferior to with a wider definition, such as that provided the definition provided by the Sapin II Act. by the Sapin II Act. The Directive aims to prevent breaches of I should also like to emphasise another European law. This implies that citizens challenge in its transposition – the absolute must know what comes under European necessity of excluding all conditions on the and international law. A distinction also has acquisition of documents. In order to copy to be made between what comes under the the LuxLeaks documents and communicate law and what does not exist in law. Here, the them to a journalist, I had to break a number very role played by the whistleblower comes of criminal laws. I was prosecuted for theft and into question. For example, in the LuxLeaks fraudulent access to and use of an IT system. case, I blew the whistle on tax avoidance Do these breaches of criminal law justify behaviours that did not constitute an actual prosecution or not? The Directive provides no breach of the law. Tax optimisation simply explicit answer to this question, in particular consists of exploiting all the loopholes in the by stipulating that acquisition of information legislation. I very much hope that, in the future, constitutes a separate criminal offence. whistleblowers report cases of general interest, Great care must therefore be taken during its concerning practices that haven’t yet been transposition in order to ensure that conditions covered by the legislature, precisely in order to under which whistleblowers can access change the law and correct imperfections in protection are not too restrictive. legal and regulatory frameworks. For example, when a substance proves to be dangerous, a whistleblower has to report the danger of using it before its use becomes illegal.

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The opportunities provided by the European Directive

CONTRIBUTION BY LAURENT MAUDUIT

Laurent Mauduit is an investigative journalist specialising in economic affairs and social and economic policy. After spending many years working in the Libération and Le Monde newsrooms, he cofounded the Mediapart information website in 2008, for which he still works today. Laurent Mauduit is also an author and has published some fifteen works and essays. The latest, published in 2018, is entitled La Caste. Enquête sur cette haute fonction publique qui a pris le pouvoir.

"IT’S THANKS TO WHISTLEBLOWERS In the first major progressive law on the THAT JOURNALISTS HAVE GOT TO KNOW press, enacted in 1881 and still governing its ABOUT ALL MAJOR CASES OF FRAUD AND operation, the spirit of liberality endures. It is summarised by Article 1: “Printing houses and IRREGULARITIES." bookshops are free”. And yet I have the deep- seated feeling that this consensus is cracking, In my profession as a journalist, the notion that a whole series of bills and threats are of “right to know” underpins the freedom of impacting the freedom of the press. There the press. It’s not a journalist’s privilege but was the law on fake news, the attempted raid a major right of all citizens: there can be no on Mediapart, journalists being summoned strong democracy without well-informed to appear before the Directorate-General citizens. Freedom of the press has now of Internal Security (DGSI), and the trade brought whistleblowers’ revelations into public secrets law. With this law we saw a reversal debate. From this standpoint, I’d like to tell you of the philosophy espoused by the law of of my worries and hopes alike. 1881, which enacted a principle of freedom My main worry is that one or other of the two and transparency and punishes any eventual pillars constituted by freedom of the press abuses. Now it is opacity that prevails, and the and whistleblower protection may be showing law provides for possible exceptions. signs of weakening. As far as freedom of the How truly pernicious the trade secrets law press is concerned, I have the feeling that is was made clear by the “Implant Files” we’re living in a period of historical regression case. Requests made by journalists from Le after having lived for so long in a period of Monde who were working on an investigation consensus. Yet, as Camille Desmoulins put it, concerning major public health questions were “the press is the watchdog of democracy”. objected to by the Commission for Access to Administrative Documents (CADA) in the name of trade secrecy, even though the enterprise concerned was a public company.

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This provision is all the more damaging One of the most emblematic such cases in that it impacts journalism focusing on resulted in the highest ever fine imposed by companies. Such reporting is already largely the Financial Markets Authority (AMF): muzzled in France, unlike the UK, which has 35 million euros, which has just been reduced a press specialising in financial investigative to 20 million euros by the Conseil d’État journalism. Trade secrecy has therefore been (highest administrative court in France). added to the constraints in a world where the Nonetheless, the whistleblower concerned press is already highly restricted. was sacked. Yesterday, I wrote a column about a particularly serious case concerning How truly pernicious the trade secrets law the same bank; once again the whistleblower is was made clear by the “Implant Files” was sacked. I’m well aware that the Sapin II case. Requests made by journalists from Le Act has resulted in progress being made in Monde who were working on an investigation France. These days, the Financial Markets concerning major public health questions Authority keeps a register of whistleblowers, were objected to by the Commission for which has certainly had a protective effect as Access to Administrative Documents (CADA) whistleblowers can now avail themselves of in the name of trade secrecy, even though the certificates delivered by the AMF. But it’s clear enterprise concerned was a public company. that progress is still very slow. This provision is all the more damaging in that it impacts journalism focusing on As a journalist, I pay close attention to work companies. Such reporting is already largely and debate on the European Directive’s muzzled in France, unlike the UK, which has transposition. I’m hoping for a good a press specialising in financial investigative transposition, one that will maintain the journalism. Trade secrecy has therefore been Directive’s major advances, safeguard the added to the constraints in a world where the progress resulting from the Sapin II Act, press is already highly restricted. and incorporate the Council of Europe’s recommendations. Once again, citizens’ Nonetheless, I welcome the European fundamental right to knowledge is at stake. As Directive with considerable satisfaction. It is Victor Hugo said, in a fine speech he made to highly progressive overall and, in France at the Constituent Assembly on 11 September least, it provides a counterpoint to what we are 1848: “The principle of freedom of the press currently experiencing as regards freedom of is no less essential and no less sacred than the press. In order to carry out investigations the principle of universal suffrage. They in certain sectors, journalists must have are two sides of the same coin. These two whistleblowers to turn to. For example, how do principles are inseparable and complement you carry out a journalistic investigation of a each other. Freedom of the press, alongside bank? It can’t be done without a whistleblower. universal suffrage, means freedom of thought Only the CEO possesses all the information. for everyone, which implies enlightened Counterpowers are weak and aren’t informed government for all. Undermining one is until long after decisions have been made. tantamount to undermining the other”. It’s thanks to whistleblowers that journalists It would be good if nobody forgot that. have got to know about all major cases of fraud and irregularities. I spent years writing about French financial life in Libération, and a long time at Le Monde, where I headed the Companies Department. Over the course of eight years, I provided countless details of serious irregularities committed by banks, which, each and every time, led to whistleblowers being sacked.

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Guaranteeing optimal protection and fostering ethical reports

CONTRIBUTION BY MARTIN JEFFLÉN

Martin Jefflén has been the President of Eurocadres since 2013, one of the six multisectoral social partners recognised at European Union level. As such, he represents European executives in all branches of industry, public and private services and administrative services. Martin Jefflén previously held successive posts as advisor, democracy secretary and international secretary at the Swedish trade union Unionen, in the TCO Confederation. He was also elected President of the UNI Europa Federation’s “Professionals & Managers” group, and worked as international secretary and organisation secretary at the Swedish Federation for LGBTQI Rights.

"EACH EXTRA CRITERION THAT A ethics, corporate social responsibility and WHISTLEBLOWER HAS TO MEET IN ORDER questions of compliance, while maintaining TO BE ABLE TO BENEFIT FROM PROTECTION key performance indicators and ensuring achievement of project goals. DECREASES THE LIKELIHOOD OF THEIR BEING ABLE TO BENEFIT FROM IT." When whistleblower protection became the most debated part of the trade secrets directive in 2014-2015, we wanted to make Eurocadres is a European trade union that sure that civil societies and trade unions represents some 6 million executives. As remained active, in particular with regard such, we take part in the EU’s intersectoral to the question of whistleblower protection. social dialogue by negotiating with employers. We therefore took the initiative of creating a We’ve been active in the field of whistleblower platform, whistleblowerprotection.eu, bringing protection since 2013, and the Trade Secrets together some 90 trade unions and NGOs. Directive has led us to take action with Since then, we’ve advocated for people to regard to legal protection of whistleblowers make the very most of the European Directive in the European Union. The executives who on whistleblower protection. make up our membership are often the first to discover wrongdoings that need to be It’s a good Directive that’s also been reported in the public interest. We therefore significantly improved by negotiations between need to find a balance between professional Council, Commission and Parliament.

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In particular, we’ve done our utmost to As regards trade union interests, if we don’t guarantee the right to approach the competent obtain fully horizontal implementation, we authorities directly, without having to make a would at least like to see inclusion of working prior internal report. conditions, non-discrimination, and health and safety at work. The Directive covers a great What are our main recommendations many areas, including animal welfare and regarding the transposition procedure? First public health. Let’s take the example of public of all, each extra criterion that a health. If you sound an alert on the safety whistleblower has to meet in order to be able of patients, they are at risk of being harmed to benefit from protection decreases the because staff make mistakes. But staff make likelihood of their being able to benefit from mistakes because they are heavily overworked it. The Directive aims to ensure that more and because the Work Time Directive is not reports are made so that European legislation being complied with. So you can issue a report can be better applied. It’s therefore essential on public health, but you get no protection on to ensure that whistleblowers really feel safe the subject of health and safety at work. This enough to make a report. This is why we must gap needs to be filled. ensure that national legislation becomes fully horizontal, that it isn’t divided up into different Another aspect of the material scope of thematic areas, as is the case with the application is the general exception made for Directive as it stands at present. The directive national security, which doesn’t come under must be complete, covering a wide range the EU’s competence. We must therefore of areas, and also comprehensible so that ensure that, for certain national security citizens understand it. questions, national legislation includes national confidentiality, with special notification The Directive is based on application of procedures. Community law. Hence, it only covers reports relating to Community law. The first thing to As a trade union, we obviously want to ensure include during its transposition, of course, is that we’re able to represent our members, national legislation. France is one step ahead and that they can come to us for advice. on this point, thanks to the Sapin II Act. In this National legislation must make it clear that sense, the non-regression clause is one of the approaching a trade union isn’t the same thing Directive’s positive aspects. It prevents any as publishing on Facebook. Why bring up such lowering of protection standards in a Member a simple example? Because approaching a State, which might make use of the Directive’s trade union isn’t the same thing as making an implementation as a pretext for doing so. internal report in the company or organisation No one stands to gain by making sure that concerned. Nor is it an external report, as it European legislation alone grants protection isn’t made to the competent authorities. And to whistleblowers. This would make the law then there’s the last option – alerting the dangerous for whistleblowers, giving them a public. This needs to be clarified. The right to false sense of security. approach a trade union must be granted and must not be understood as a public report. Another question on which France is one step ahead, as regards the question of the The right to go and see a trade union must be material scope of application, is that of the granted. As trade unions, we must also ensure, public interest. The Sapin II Act also includes in particular during setup of internal reporting reporting in the public interest. This is one channels, that we have a tried and trusted of the most important things to introduce social partner fully committed to dealing with in all Member States during the Directive’s them. transposition, so as to ensure that it’s in line with the European Council’s recommendations.

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Because of the special reporting procedure This is similar to a “test of good faith”. At the provided for by the Directive, use of such same time, if you have reason to believe that reporting channels is also a criterion. National your “alert” comes within the Directive’s scope legislation needs to be clarified on this point. of application, you’re covered by the Directive. For example, if you approach one of your Whatever definition is adopted, reasonable directors or your company’s human resources belief must be similar to what a colleague – in manager, you can’t lose your protection simply other words a comparable individual, not an because you’ve used the wrong channel. expert – would believe if he or she was in the Reporting might also be made mandatory. And same situation. once this is the case, protection should be Secondly, a word on the burden of proof in granted. the event of retaliation. There’s an excellent We dealt with a case having to do with article in the Directive that concerns reversal acquisition of documents. And it’s Member of the burden of proof following retaliation. States’ job to settle such problems, which Nonetheless, we must ensure that the recital, implies criminal liability for obtainment of which is clearer than the article itself, prevails documents. The Directive stipulates that in national implementation. national law must define whether or not this Finally, there’s the question of cultural change. incurs criminal liability and it’s essential to Changing a culture is never easy. We must make sure that obtainment of documents is make sure that we have the funding required included. If you don’t have the information for our mission of information. In this respect, in your possession, you can’t disclose it. it should be borne in mind that transparency Obtainment of documents is an integral part of and responsibility are never free of charge. the reporting process. Three final aspects. First of all, in two places, the Directive speaks of “reasonable belief”, in other words, belief that what has been reported is true.

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Guaranteeing optimal protection and fostering ethical alerts

CONTRIBUTION BY MARIE TERRACOL

Marie Terracol is coordinator of the Ethical Whistleblowing Programme implemented by Transparency International, a global movement with over 100 divisions across the world committed to combating corruption. She coordinates Transparency International’s work on advocating improvement of protection of whistleblowers across the world, so that they can report corruption and other wrongdoings in complete safety. She is the author of Transparency International’s Guide to Best Practices with regard to legislation on whistleblower protection, published in 2018.

“THE EU’S MEMBER STATES MUST NOT In order to guarantee truly effective protection SIMPLY TRANSPOSE THE of whistleblowers who defend the general DIRECTIVE, THEY MUST ALSO GO BEYOND interest, and encourage ethical reports, the EU’s Member States must not simply ITS PROVISIONS." transpose the directive, they must also go beyond its In the United States, a procedure for the provisions. impeachment of the President was recently The EU Directive is a very good instrument, opened following a whistleblower’s report on an excellent starting point. It establishes robust abuse of power for personal advantage. This minimum standards. We’ve welcomed it at is a very serious matter, and I imagine that Transparency International as an innovative most of us would agree that it’s in the general legislative text. interest to reveal possible abuses of power by a Head of State. However, as it stands • It applies to public and private sectors alike at present in most EU countries, the in the same way, which is important. whistleblower would not be protected. Nor • It not only protects reports of illegal activities, would he be protected by the newly adopted but also those that go against the aim and European Directive. If there had been a similar purpose of existing rules. This includes case in Europe, we’d have known nothing abusive practices that don’t seem illegal, about it as the whistleblower wouldn’t have such as those revealed by Antoine Deltour made a report for fear of reprisals and because in the LuxLeaks case. there were no adequate reporting channels available to him.

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• It takes no account of the whistleblower’s Widening the material scope of application reasons for making a report, and rightly so. The American whistleblower in my example The focus must be on the report’s content, wouldn’t be protected in Europe due the not on the reason why the whistleblower Directive’s fragmented and limited scope came forward, which, in France, might mean of application (a result of the EU’s limited removing the altruism requirement. competences). The Directive only protects • The Directive protects whistleblowers’ whistleblowers who report breaches identities in most cases, with clearly defined of Community law in certain areas. A exceptions. It also protects anonymous whistleblower who reports breaches of whistleblowers. Community law in areas other than those listed in the Directive, or breaches of “simple” • The Directive provides for several different national legislation, isn’t protected by the reporting possibilities: in addition to making directive. Transposing the Directive as it an internal report to their organisation, stands would therefore create inequalities and whistleblowers can also approach the legal uncertainty. Not knowing whether or not competent authorities directly. This is a they are protected, individuals with knowledge step forward for whistleblower protection in of breaches that might harm the general France and the Netherlands, for example. interest might decide to keep their mouths Finally, in certain circumstances, they can shut. As a result, their organisations, the make public revelations. authorities and the public may remain ignorant • The Directive establishes the obligation of wrongdoings harmful to their interests. to follow up whistleblowers’ reports and Transparency International therefore keep them informed. This is a major recommends that, when they transpose the encouragement to ethical reports. After all, Directive, European States adopt a horizontal whistleblowers won’t come forward if nothing approach and cover as wide a scope of happens afterwards. In addition to fear of wrongdoings as possible, so that all cases of reprisals and not knowing who to make reporting are covered and all whistleblowers their report to, one of the main reasons for are protected. The Directive certainly specifies individuals deciding to keep quiet is that they that a country may adopt legislation with a think that reporting won’t change anything. wider scope of application, and the European And unfortunately, that’s often true. Commission encourages them to go beyond All these constituents, and much else in the the Directive. There’s therefore no excuse for Directive’s content, are essential to definition not doing so. of a sound legal framework for ethical reports, French citizens may think that none of this and Member States should ensure that these applies to them, as the scope of application is provisions take full effect when they transpose already quite wide in France. That’s true, but the Directive. Nevertheless, this won’t be only if we avoid the pitfall of creating a second enough to protect ALL whistleblowers who parallel protection regime, with a system in speak out in the general interest. To remedy which people can approach the authorities this, Member States must go further. In directly without having to prove their altruistic particular, national legislation on whistleblower motives alongside a system for all other cases. protection must have a much wider scope of Of course, that would create absurd levels of application. complexity and uncertainty, and is therefore a path to steer clear of.

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Designating a national authority responsible • It should keep a close eye on and examine for whistleblower protection the operation of laws and policies governing whistleblowing, including in companies and Adopting a law on whistleblower protection is public institutions, in particular via collection only a first step. In countries where legislation and publication of data. has already been in existence for several years, we’ve observed that, in order to provide • It should raise the general public’s awareness whistleblowers with effective protection so as to encourage whistleblowers’ take-up of and encourage ethical reports, the law must protection. If people don’t know that a law or a be properly implemented and applied. This system exists, they won’t come forward. requires a national authority responsible for In conclusion, European countries have until overseeing its implementation and application. December 2021 to transpose the European Such authority might be a new body specially Directive. This provides them with an excellent created for the occasion. However, countries opportunity to bring their national legal may simply extend the competences of an framework into compliance with international existing authority, such as the Defender of standards and best practices. In order to do Rights in France, for example. The authority this, they shouldn’t simply comply with the concerned must be independent and possess Directive’s provisions, but improve on progress the powers and resources required to operate made by going beyond what it provides for. effectively. In terms of competence: Transparency International has published a It should provide whistleblowers with free • report containing a series of recommendations advice and support. aimed at filling gaps and reinforcing the • It should ensure that whistleblowers’ reports whistleblower protection provided by the are communicated to the competent Directive during the transposition procedure: authorities so that they can take all necessary Transparency International, Building on the measures. EU Directive for Whistleblower Protection: Analysis and Recommendations (2019): • It should receive, investigate and process complaints concerning retaliation and www.transparency.org/whatwedo/publication/ inappropriate follow-up of reports. building_on_the_eu_directive_for_ whistleblower_protection

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Guaranteeing optimal protection and fostering ethical alerts

CONTRIBUTION BY JACQUES TESTART

Jacques Testart is co-founder and Honorary President of the Sciences Citoyennes association, and a member of the Maison des Lanceurs d’Alerte (France). After training as an agronomist and biologist and taking a Doctorate in Science, he became a researcher at INRA and teacher/researcher (University Paris 7), and then Director of Research at INSERM. Jacques Testart has devoted himself to problems of natural and artificial procreation among animals and humans. Responsible for the first “surrogate mothers” among bovines (1972), and then, with his biomedical team, for France’s first successful in-vitro human fertilisations (1982), human embryo cryopreservation (1986), and IVF with spermatozoid injection (1994).

A word on the Maison des Lanceurs d’Alerte. We were very well received by the public First proposed by Sciences Citoyennes at large and there appears to be general and Amnesty International France in 2009, satisfaction on the part of whistleblowers. France’s non-profit whistleblower centre What is the current situation as regards was finally created by 17 associations and whistleblowers? The Sapin II Act enacted in trade unions in October 2018, with a view to 2016, along with creation of the Maison des assisting whistleblowers in their procedures Lanceurs d’Alerte and wide media coverage of and mitigating their often dramatic isolation. a number of reports, have certainly improved The aim is to provide whistleblowers with legal, their situation in 2019. But there’s still much to psychological, financial and media support. It be done in order to ensure real protection and ensures reports are followed up and advocates effective consideration of all reports. We want improvement of legislation on whistleblowers, to continue this movement, in particular by who act on behalf of the general interest. drawing on the European Directive of October The Maison des Lanceurs’ d’Alerte currently 2019, but also on the Council of Europe’s has 2 to 3 employees, who are assisted by Resolution 2300 of 1 October, and requesting several dozen volunteers, above all in legal and the incorporation of a number of their psychological areas of competence. Our first proposals into French legislation. assessment, following 13 months of activity: 97 files were received, a third of which concerned matters unrelated to work.

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As regards the integration of recent European In addition, the Council of Europe’s proposals, the Maison des Lanceurs d’Alerte recommendation advocates the role of a is responsible for the open letter to Emmanuel facilitator, which might be an NGO providing Macron on the status of whistleblowers sent assistance to the whistleblower, including on 7 November 2019, a letter co-signed by outside the professional context. The 54 NGOs echoing the European Directive of Maison des Lanceurs d’Alerte, which already 23 October 2019, which owes a great deal performs this function, would like its role to the trade unions and NGOs that rallied to to be recognised, along with that played by the cause. The demands contained in the the associations and trade unions that have letter include adjustment of the burden of brought whistleblowers out of the shadows. proof, provision of legal assistance, retaliatory Of course, there are provisions in French sanctions, and creation of a whistleblower law that need to be preserved. For example; support fund to be provisioned by fines. We although the 2019 European texts situate also request the right of asylum for threatened whistleblowers in the professional context whistleblowers, and reinforcement of the alone, the Sapin II Act provides a wider Defender of Rights’ missions and resources. definition of alerts that threaten the general The Maison des Lanceurs d’Alerte believes interest. Its definition must be kept, whatever that some of the recent fundamental European area a report concerns. provisions amending the Sapin II Act are The most important but also sorely neglected absolutely essential. Chief among them is the question is the monitoring of reports. One of definition of whistleblower as a natural or legal the Blandin Act’s key recommendations was person. This provision is necessary to ensure lost in 2016; it related to the processing and that vulnerable, isolated individuals do not monitoring of reports, to be carried out by a suffer too much exposure. dedicated Independent High Authority with On its side, the European Directive institutes possible referrals to health and environmental a two-tier procedure rather than the three- agencies. The Blandin Act bears on health and tier version in the Sapin II Act, so enabling the environment, while the more recent texts whistleblowers to sound the alert internally address new reports in the economic field, or directly to the competent authorities, which above all seek to combat corruption and such as the Defender of Rights in France, fraud and aim to ensure transparency. before any revelation to civil society. Let’s When the environment and health are in avoid the wall of the hierarchy in companies danger, vigilance is more than just a legal and administrations, along with unsecured requirement. Scientific appraisal of reports is systems. If we do, we’ll be able to open up therefore just as important as whistleblower numerous reporting procedures that are often protection, as we’ve seen when there have discouraged. been reports warning of the dramatic effects The European Directive also clarifies of chemical substances and medicines. Such conditions for recognition as a whistleblower, monitoring requires implementation of an setting aside such subjective criteria as exemplary appraisal procedure, including the having altruistic motives and personal adversarial process and multidisciplinarity, knowledge of the facts revealed, preferring often in order to dismantle official appraisals good faith and compliance with the procedure and reduce conflicts of interest that have led in their stead. By doing so, we avoid legal to situations justifying reporting. interpretations, which are often unfavourable to whistleblowers.

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In 2008, because the monitoring of scientifico- precautionary principle, and would also enable technical reports is indissociable from their scientific defence of whistleblowers to be expert assessment, the Sciences Citoyennes based on democratically established evidence. association had proposed the creation of And finally, there’s one more, as yet an independent High Authority for Expert unexplored, field that merits attention: Assessment and Alerts, with the power to upstream research, when whistleblowers oversee the way in which authorised agencies worry about the ethical or anthropological carry out expert assessments. Reporting is in consequences of work that is nonetheless the public interest and is more than simply encouraged by institutions, even before it is denouncinging illegal practices. Creation of completed. Hence, assuming that his about- a High Authority for Expert Assessment and turn did not come too late, was Oppenheimer Alerts, or the allocation of such function to a whistleblower when he was worried about a body such as the National Commission the risks to humanity posed by development on Ethics and Alerts, provided with real of the atomic bomb? And would he be independence and full investigatory resources, defended today, how and by whom would his would express an all too often trivialised report be appraised?

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Guaranteeing optimal protection and fostering ethical alerts

CONTRIBUTION BY SYLVAIN WASERMAN

Sylvain Waserman is a French Member of Parliament (MoDem), Vice-President of the National Assembly and Vice-President of the French Delegation to the Council of Europe Parliamentary Assembly – CEPA (which brings together parliamentarians from the Council of Europe’s 47 countries). It is in this context that, in January 2018, he obtained the signatures of 50 parliamentarians from a variety of political and national groups in order to draft a study report on effective protection of whistleblowers in Europe – a report adopted on 1 October 2019.

“PROTECTION IS PROBABLY TO Each one of us, civil society as a whole, WHISTLEBLOWERS WHAT FREEDOM has a role to play in developing such law. IS TO THE PRESS.“ 13 proposals came from it; including the proposal to define independent authorities’ exact objectives and prerogatives. I must I’m convinced that whistleblower protection stress the importance of a network of has become a true democratic marker. European authorities, such as the Defender Dissemination of reports is no longer a major of Rights in France, in terms of democratic obstacle. However, it’s because they find it sharing of case law, as well as the possibility difficult to identify the risks they’re exposed of transferring a report to a legal person. to that whistleblowers need greater protection Whistleblowers’ isolation is all too real and on the part of States. In the context of the proposals on the burden of proof are important, report presented to the Council of Europe, in particular against gag orders, as is the we organised an event entitled “48 Heures possibility of creating legal defence funds, Chrono : Lanceurs d’alerte” (48 hours by the provisioned by fines imposed on organisations clock: Whistleblowers) in which we collected that don’t follow the rules. As far as I can see, the various viewpoints expressed by 130 two subjects are yet to be covered by the law experts, whistleblowers, Edward Snowden in and should be given greater thought: the right videoconference, journalists, political jurists, of asylum and military secrecy. etc., with a view to raising the question of the “next step” as regards the law. This report’s first conclusion is that European law on the subject is not stabilised.

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Such organisations as the Maison des Recognition of whistleblower status is a Lanceurs d’Alerte exist in order to facilitate question that must be raised at the very the essential emergence of a whistleblower beginning of the procedure in order to know ecosystem in civil society. whether or not an individual can legitimately benefit from it. Whistleblower status is by no The report ends with a self-assessment grid means self-proclaimed, and the law must be so that each member of the Council of Europe precise in order to minimise risk. Parliamentary Assembly can assess their national law in the light of its performance as As I see it, we therefore have a dual challenge regards whistleblower protection. It’s a subject as legislators. The first is to lead the way with central to democracy, and one that each and regard to whistleblower protection and the every member of parliament must take fully to second is to have the humility to acknowledge heart. that we have little legislative objectivity and little precedent to draw on. The time for the Directive’s transposition is fast approaching. It’s a democratic In this field, perhaps more than any other, it is opportunity that must not be missed. And essential to forge ahead in collaboration with during the transposition, the vision that we civil society. We have an opportunity to create must promote as legislators, three years an ecosystem with an associative sector of after the advances achieved by the Sapin II wide competence, able to provide invaluable Act, is to accord whistleblowers their rightful opinions to guide this legislative endeavour on place in our democratic models, in order its way. It will have to be given its rightful place. to construct a robust democratic edifice. We have a real challenge to meet collectively Democracy will be all the stronger for it in its – that of making the democratic marker fight against large-scale corruption, serious of whistleblower protection emblematic environmental damage and infringements of France’s democratic model, so creating of civil liberties, in particular in the digital momentum at European level. field. Our democracy will be all the stronger if we grant whistleblowers their legitimate place in our society. Protection is probably to whistleblowers what freedom is to the press. In both cases, it is for the Rule of Law to guarantee protection of freedom. In a society where many of our fellow citizens have doubts about our democratic system, it’s essential to restore trust, and whistleblower protection is of key importance if we are to do so. Therefore, when we transpose the Directive, we must adopt a stance that is both ambitious and audacious, one that strives to ensure perpetuation of a robust democratic edifice, in which whistleblowers are nothing less than cornerstones. Our work will have to be precise, accurate and meticulous as the law on the subject is complex and there are a great many pitfalls to be avoided. Protection isn’t a blank cheque.

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Guaranteeing optimal protection and fostering ethical alerts

CONTRIBUTION BY ZETA GEORGIADOU

Zeta Georgiadou has been Deputy Head of the “Fundamental Rights Policy” Unit at the European Commission’s Directorate-General for Justice and Consumers since 2016. After working at the EU Court of Justice, first as a lawyer linguist and then as an advisor at the former President of the Court’s Office, she worked at the European Commission in the fields of asylum, citizenship and freedom of movement within the EU.

"IT’S IN ALL COUNTRIES’ INTEREST We are delighted that the Council of Europe TO PROTECT WHISTLEBLOWERS." Parliamentary Assembly is encouraging its Member States that are not members of the European Union to draw inspiration from The fact that the Directive was adopted in the Directive in order to adopt or modernise record time testifies to the strong political their legislation. We are also pleased to note determination at European level to grant the Assembly’s invitation to the Committee whistleblowers high and coherent levels of of Ministers to make a start on preparations protection. It should be borne in mind that for negotiating a convention inspired by the the European Parliament and the Council European Directive. agreed on the final text in less than a year after presentation of the Commission’s proposal. At present, the Commission’s main priority A result that owes a great deal to the action is to lend its support to Member States’ taken by citizens and NGOs. transposition of the new rules. To this end, we’re going to create a group composed of With adoption of the Directive, the European experts representing the national authorities Union has become a leading light in that will be responsible for the transposition. whistleblower protection at global level. The group will enable its experts to discuss any Whereas whistleblowers have so far been problems that emerge at national level and will exposed to unequal, fragmented and even act as a platform for exchange of experience non-existent protection depending on country, and expertise, with a view to sharing best the European Directive provides essential practices and correcting bad ones. harmonisation that will replace the existing legislative patchwork.

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As we’ve already heard, a number of Member In the context of the transposition, thought States, including France, have already enacted must be given to the role and competences horizontal legislation, which they now have the to be assigned to national mediators in opportunity to improve. Even though they may accordance with their mandates, in particular be familiar with the concept of a protection in order to assist whistleblowers, via provision mechanism, most Member States only have of guidance, support and advisory services, sectoral protection. They will now have to for example, by investigating allegations adopt new legislative machinery and introduce of retaliation or allegations of the public new notions into their legal systems. authorities failing to follow up reports. As for us, we’ll seek to ensure that the As a next step, after the Directive’s Directive’s various concepts are properly transposition, targeted measures might understood and interpreted, and implemented be considered and adapted with a view in all 27 Member States. Our main goal to activating all the levers contributing to is to prevent incomplete, incorrect or effective protection on the ground. Through delayed transpositions that might result in provision of guidelines and best practice infringement proceedings against Member guides to companies and industrial concerns, States before the European Union Court for example. Provision of support measures to of Justice. We’ll also aim to maximise the companies might also be considered, medium- effectiveness of the Directive’s rules in sized companies in particular, which might practice. There are various measures and have need of financial or practical assistance strategies that Member States can implement in implementing and managing whistleblowing in order to activate all the levers that might channels. contribute to effective protection on the Given the essential role that the Directive ground. assigns to social partners, I should like The Commission’s communication, published to stress the need to provide trade union in April 2018 at the same time as the proposed representatives and works council members directive, and the Directive itself highlight a with adequate training. It’s also crucial for whole range of measures and best practices; in journalists to be trained, so that they can particular, during transposition, we encourage reassure whistleblowers that contact them: Member States to consider extending the even if their identity is exposed, they’ll be scope of application of the Directive’s rules protected from retaliation. The training to other areas and, in general, to guarantee of judges and legal practitioners is of a coherent, comprehensive framework particular importance, as it ensures effective at national level. In compliance with the implementation of the Directive. subsidiarity principle, the Directive establishes More generally speaking, the Commission whistleblower protection measures covering encourages Member States, once they’ve application of Union law in specific areas. But enacted the laws transposing the Directive, ultimately, it’s in the interest of all countries to to consider organising awareness-raising and protect those who report breaches of national information campaigns targeting the public at law and threats to the public interest at large. Such campaigns should provide general national level. information on available reporting channels and protection, and also promote a positive perception of whistleblowers as individuals who act in the public interest and through loyalty to their organisations and society as a whole.

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Such campaigns would also further reassure Effective protection of whistleblowers and encourage potential whistleblowers, and helps guarantee the protection of all these promote a genuine culture of transparency. fundamental values, and so deserves unreserved commitment and collective In conclusion, I should like to quote Article 2 effort on the part of the European Union’s of the Treaty on the European Union, which institutions, Member States and stakeholders. enshrines the values on which the Union is founded. They are the values of respect for As for us, we’ll be more than happy to assist human dignity, freedom, democracy, equality, and support transposition procedures, with a the rule of law and respect for human rights. view to ensuring that the Directive comes into full effect.

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Contribution by Jacques Toubon

Defender of Rights

The whole of Europe is represented in this In the law, there's a prohibition of professional room, and that bodes very well for the rest of retaliation, along with an innovative and our mission. I welcome the members of the absolutely crucial mechanism of criminal non- NEIWA network, who met for the first time in liability for having revealed a secret protected The Hague at the end of May at the instigation by Article 109 of the Criminal Procedure Code, of our Dutch counterpart. Then the second a professional secret for example. meeting took place yesterday in Paris. Its goal Nonetheless, France still appears to be in was to ensure that the institutions responsible midstream. Everyone agrees that the Sapin for whistleblower protection in Europe agree II Act hasn’t had all the effects that were on the common recommendations made expected of it. As Defender of Rights, and on the subject we’re focusing on here, the being responsible for guiding whistleblowers transposition of the Directive. Today, it’s a and ensuring protection of their rights and done deal, and, as the 14 current members of freedoms, I soon realised that, taking account NEIWA, we’re very proud of having adopted the of the multifold difficulties in interpreting the Paris Declaration, which aims to commit our text and as the applicable legal regimes had respective countries’ public decision-makers not been harmonised or coordinated, people to action. likely to come forward as whistleblowers had Through this common Declaration, we join a hard time determining whether or not they forces to recommend that all the European complied with all the rules set by the law Union’s Member States make use of all the enabling them to benefit from the protection options offered by the Directive to provide for a regime resulting from it. system to protect whistleblowers everywhere, Such uncertainty is even more of a deterrent in all countries, accessible to all, highly for whistleblowers – usually men or women protective, and, as was stated at the end of our acting on their own – in that the regime has discussions, backed up by adequate resources. not been accompanied by any action on the Ten countries already have fully-fledged Government’s part aiming to spread knowledge protection regimes, including France, since the of the system beyond the small circle of those law of 9 December 2016, the so-called Sapin II in the know and interested parties. I published Act, has implemented a general whistleblower a guide on the Internet, which is pretty much protection regime essentially based on a the only instruction manual on the law of 9 wide definition of whistleblower and a tiered December 2016 currently in existence. Lack reporting procedure, as the Conseil d'État of knowledge was so widespread that, in the (highest administrative court in France) had course of 3 years, I only received 240 referrals proposed in a report communicated to the – relatively few in view of the breadth of the Government in spring 2016. subject.

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In a good many cases I had to act as educator I believe it is necessary to approach this and explain what conditions had to be met in transposition with a great deal of ambition. order for the facts reported to qualify as an Even though the Sapin II Act brought about alert. Many complainants didn’t know that advances that must be preserved, in particular the whistleblower protection regime does not its wide scope, wider than in many other apply when, for example, they are in personal European countries’ legislations and in the conflict with their employer, or, broadly Directive itself, the transposition calls for a speaking, when the altruistic character of their complete overhaul of the French system, not report has not been established. This is one simply a series of minor modifications. of the reasons why, in public law, I advocate Firstly, its overhaul must seek to make the abolition of the subjective criterion of altruistic regime a great deal clearer, and I speak from motive after the Directive’s transposition. experience and as the operator of the present Some complainants, supposed whistleblowers, system. A regime with a great deal more clarity are helpless faced with the complexity of the in order to keep whistleblowers safe when they law. Others, for example, report facts they have step forward and do away with the dissuasive no personal knowledge of, as a preventive effect of any uncertainties. This can only come measure, contrary to what the law requires; about by harmonisation of existing protection that’s the other subjective criterion – “personal regimes. knowledge of the facts reported” – that Secondly, the transposition must be the result should be called into question. Faced with this of interministerial collaboration, in order to situation of uncertainty, we’ve often advised better ensure that the final text is as coherent complainants to proceed with caution. as possible; it must not be overseen by the I have repeatedly requested the public Ministry of Finance alone, as the Ministry authorities to amend the legislation concerned, of Justice is also the Ministry of Law and in order to make it clearer, more accessible, Freedoms. and ultimately, more operational. Among other Third precept, the transposition must aim to things, I’ve alerted the Government to the break the isolation whistleblowers all too often deficiencies and imbalances in the law and, find themselves in, including after the report in April 2018, presented an opinion before has been made. To ensure this, as the Directive Parliament on the difficulties created by the invites us to do, the regime must provide for combination with the law on trade secrets. an authority capable not only of monitoring Thanks to the efforts made by our whistleblowers, informing them, guiding them parliamentarians, above all by a number of and protecting them against any reprisals or members of the Committee on Legal Affairs, retaliatory measures they might be subjected the Community Directive was published in to, but also of following up reports made via the the European Union’s Official Journal on 26 various channels and making sure that reports November, providing a great opportunity are properly processed at the appropriate for each and every member of the Union to level. Such authority, which it is incumbent create or improve an exemplary whistleblower upon the public authorities to determine, must protection regime by the end of 2021. This is be assigned substantial competences, with an opportunity for France, which could finally special, strong powers of intervention based cross the stream without turning back. on mediation, which therefore go beyond the simple context of combating discrimination. A number of points seem to me to be essential Naturally, it’s up to the Government to choose for an effective transposition. this authority as it sees fit. The Defender of Rights is one possibility.

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On condition that it still remains the Defender The European Commission has announced of Rights, in other words independent and the creation of a participative platform along impartial, including in this area. It’s this with an expert group that will act as interface independence and impartiality that can give between governments and the Commission. it its strength but which may also impose The Defender of Rights will continue its considerable limitations. We can’t be both mission of defending whistleblowers’ rights judge and jury. If we’re automatically on the with the same determination, and will make full whistleblower’s side, we’re no longer the use of all the opportunities for improvement Defender of Rights, as, by definition, we’ll no provided by the Directive in order to propose longer be impartial. implementation of a more protective and effective system. It will in no case be possible to have real protection, follow-up of reports or processing To conclude, our present law contains of reports unless there is an authority with the advances and inadequacies alike. The relevant capacities. Directive provides France and other European Union members with bases for Finally, given the size of the task, the public decisive, irreversible progress. A patient, authorities must take the time required to interministerial method of transposition carry out the work involved in transposition. should enable achievement of the most Such work should be carried out in close ambitious law possible, and so serve truth, collaboration with all bodies active in the guarantee freedoms, freedom of expression in defence of whistleblowers. In this regard, particular, and fully re-establish the trust that I’ve undertaken to organise legal workshops has already been partly restored. It’s now up bringing together experts, witnesses and to the Government, members of parliament associations, which would act as forums for and senators to act, with the support of civil exchange aiming to produce recommendations society. that might be communicated to the Government and Parliamentary Assemblies.

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Contribution by Nicole Belloubet

Minister of Justice, Keeper of the Seals

As a member of the Government, and also in a However, although there seems to be ever personal capacity, I believe that whistleblower greater consensus on this subject in France protection is one of the most important and at European level, the road that has led us challenges that contemporary democracies to the present situation, with all its advantages have to meet. An important challenge because and inadequacies, has by no means been an it’s a matter of transparency and truth, and easy one. As you know, the concept of “the therefore of justice. right to notify” made its first appearance in 19th-century American legislation with the The reports made by individuals now referred adoption in 1863 of the False Claims Act, also to as whistleblowers serve to highlight facts, known as the Lincoln Law, a federal law which, and therefore truths, that would otherwise for the first time, set the principle of provision have remained hidden. By blowing the whistle, of legal protection to individuals who helped such individuals play a key role in revelation reveal fraudulent use of public money. But the and prevention of offences harmful to the rest of the world had to wait a long time for public interest, doing so in a variety of areas, dissemination of the concept and assertion of including public health, the environment, the legal protection that might be provided to integrity, and economic and financial affairs. such whistleblowers. Acting in all our interests, whistleblowers report via channels inside and external to an It wasn’t until 1982 that the International organisation, revealing serious violations of the Labour Organisation established the principle law in the widest sense of the term, and major of prohibition of termination without just cause risks that threaten the public interest. By so for an employee who had lodged a complaint doing, they contribute to better information of before the courts or taken action before a citizens and, in general, to the proper operation competent administrative authority to report of democracy. violations on the part of their employer or the administration. And in Europe, it was not until I’m therefore of the same opinion as the 2014 that the Council of Europe really started Council of Europe’s Parliamentary Assembly, to tackle the question and came up with a which, in its resolution of 1 October 2019, definition of the notion – which was not legally stated that “whistleblowers play an essential binding, incidentally. The definition covers “any role in any open, transparent democracy”. The person who reports or discloses information Council of Europe added that “the recognition on a threat or harm to the public interest in that is granted them and the effectiveness the context of their work-based relationship, of their protection in law and in practice whether it be in the public or private sector”. against all types of retaliation constitute real democratic markers”. As we know today, France pioneered such protection at national level. This being so, French positive law was one of the sources that inspired European work, which led to the proposed Directive on whistleblower

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protection in the European Union. France entrusted to the Defender of Rights, which was determined to live up to its international can receive reports and direct whistleblowers commitments, in particular the United Nations to the authorities competent to receive and Convention against Corruption, which, in its process their reports. Article 33, requires that States Parties ensure In this respect, I also note that, in July 2017, the whistleblower protection. But it should be Defender published a guide to orientation and understood that France’s adaptation of its legal protection of whistleblowers, an initiative much framework was carried out in fits and starts, to be commended. initiated by high-profile cases that led the French legislature to adopt various sectoral As regards their protection, French law now provisions designed to protect individuals who provides whistleblowers with at least three made reports in good faith. protective mechanisms. They’re protected against any possible retaliation on the part of These sectoral provisions included the their employers, at least in theory. They can’t adoption of the law of December 2011, which be excluded from recruitment procedures, instituted protection for individuals who access to internships or training courses, had helped reveal facts calling the safety of or be sanctioned, dismissed or subjected medicines and health products in general into to discriminatory measures, in particular question. The law followed on from the so- with regard to remuneration and promotion. called Mediator case. Their identities are also kept confidential. Another landmark legislative initiative followed The law stipulates that the report collection the so-called Cahuzac case, with enactment procedures implemented must ensure that a of the law of 11 October 2013 bearing on whistleblower’s identity remains confidential. transparency in public life and providing And finally, whistleblowers are granted protection for whistleblowers reporting criminal non-liability, as the law provides for conflict of interest situations. Hence, French criminal immunity for whistleblowers when legislation on ethical reports initially was they infringe legally protected trade secrets developed bit by bit, in fragmented fashion. when such revelations are necessary and In this respect, it was already the subject of proportionate to the protection of French criticism highlighting the lack of coherence, interests. clarity and accessibility of mechanisms in Therefore, we cannot but be satisfied to note force. As a result, the Conseil d'État (highest that this very comprehensive French law administrative court) was asked to draw up an helped inspire the Directive on protection of assessment in 2015. Its findings served as a persons who report breaches of Union law, basis for development of the procedures later which was recently published in the European introduced by the Sapin II Act of 9 December Union’s Official Journal of 26 November 2019. 2016. The system instituted by the Sapin II Act I should like to emphasise at this point that is itself partly the result of the consequences France took a very active part in negotiating of the LuxLeaks case, symbolised by Antoine the Directive, strongly advocating a wide scope Deltour. of application and high levels of protection. Determined to be a pioneer in a subject of Of course, as is the case with all European such importance, France used the 2016 legislation, the text is the result of compromise. law to provide itself with a comprehensive, It’s not for France to impose its wishes on the coherent and harmonised general regime for European Union’s 27 other Member States, protection of whistleblowers. So it was that and it’s not the European vision that I intend the Sapin II Act first of all introduced a broad to promote. Whatever the case, France was definition of whistleblower into positive law. It one of the countries most committed to then went on to create a common foundation, rapid completion of the text. On one hand, based on secure, tiered procedures enabling the Ministry of Justice’s experts assisted whistleblowers to issue their reports; in the Commission in drafting the proposal for this context a central role, key to ensuring a directive in 2017. On the other, the French the effectiveness of all its provisions, was

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authorities that participated took a flexible individuals who, usually acting on their own, approach in order to ensure that, despite have the courage to report breaches of the law major legal constraints, negotiations resulted harmful to the general interest. in a single instrument with a wide scope of The French Government was necessarily application that also covered a number of tax involved in the Directive’s drafting and issues. Finally, in collaboration with its partners negotiation, spurred by a determination to in the Council, France proposed further ensure that whistleblowers were provided alternative possibilities, worked to clarify the with maximum protection, while instituting text wherever necessary, and held numerous a mechanism that was legally sound and discussions with the text’s rapporteur at the proportionate to the different levels of the European Parliament. seriousness of the reports made. This was This is why I’m so pleased to see the text’s the dual ambition we pursued: maximum adoption and its recent publication in the protection and, at the same time, a tiered, Official Journal. Where did the Directive’s legally sound mechanism. essentials come from? What does it say? As you’ve said, the transposition period Initially, its adoption resulted from the is set at two years. In France, work on the shared finding that the protection granted transposition will necessarily take the form to whistleblowers in many European Union of modifications to the current regime with a Member States is still fragmented and view to bringing it into compliance with the inadequate. That’s why we first decided that a Directive’s provisions, which, in certain areas, common text needed to be drawn up. Where diverge from the provisions of the Sapin II Act. it does exist, sectoral protection is usually We shall therefore have to review the Sapin II limited to the fight against corruption and text in order to take account of the points in only concerns the public sector. Yet unequal question included in the European Directive. protection of whistleblowers within the By way of example, while the Sapin II Act European Union can only harm the conditions provides a very wide definition of the types of for fair competition that are necessary to offences that can be reported, the Directive proper operation of the single market. The focuses on breaches of EuropeanUnion inadequacy of national legislations within law in a specific range of sectors: public the European Union seemed likely to foster procurement, financial services, domestic the appearance of dangerous products on market, environment, nuclear power and public domestic markets and carry risks to public health. Quite a broad range all in all, but limited health and transport safety, the consequences nonetheless. This is a discordance that we of which might extend well beyond national shall have to give thought to, perhaps with a borders. view to sticking with our own scope. In contrast, it appeared that harmonised Conversely, the scope of persons protected by protective legislation would most probably the European Directive is wider than in French have beneficial effects in many areas, law. Furthermore, in addition to whistleblowers including the fight against pollution, who meet the Directive’s definition, the consideration of the environmental issues European text also provides protection to third involved in business activities, public health, parties who aren’t at the origin of the report. etc. Hence, the Directive enshrines the notion of It was in this context that, on 23 April 2018, the facilitator, defined as a “natural person who European Commission presented a proposal assists a reporting person in the reporting for a directive designed to set minimum process in a work-related context”. The standards for whistleblower protection in Directive also grants protection to third parties Member States. Its negotiation provided connected with whistleblowers who might be France with an opportunity to reassert subjected to retaliation in the context of their its commitment to effective protection of work, colleagues or relatives.

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It’ll therefore be necessary to rework the Lastly, the final precept, taking one’s time French text to bring it into compliance with and adopting a patient, interministerial the European Directive. Work on transposing transposition method. In the two years to the Directive should start in the very near come, we have enough time and patience to future. When the time is right, we shall bring do the work required by the European text. It in stakeholders involved in currently existing will be essential to take stock of the situation whistleblower protection systems. through a systematic but pragmatic approach to deficiencies and areas for improvement I’ve taken note of the four precepts touched identified in the present regime. In this upon by the Defender of Rights. No minimum respect, the work carried out by the European transposition. That’s not our intention. Colloquium [of 3 December 2019] organised Interministerial work, the Ministry of Justice by the Defender of Rights will be invaluable in should play its role to the full, you can count on helping us to make progress, providing a highly me, the Ministry of Justice is the Ministry of practical and very proactive analysis. the Law. Third precept: break whistleblowers’ Rest assured, I shall give careful consideration isolation. The Defender of Rights highlights the to the avenues for thought that have been creation of an authority taking responsibility outlined during today’s meeting. for whistleblowers and for dealing with their reports. When the Law of 2016 was enacted, the Constitutional Council was required to rule on the Defender of Rights’ role and found that it wasn’t within the Defender of Rights’ competence to provide whistleblowers with financial help, a provision originally included in the law but finally removed as a result.

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