eucrim 2018 / 3 THE EUROPEAN CRIMINAL LAW ASSOCIATIONS‘ FORUM focus: protection of whistleblowers and Collaborators with Justice Dossier particulier: La protection des lanceurs d’alerte et des collaborateurs de justice Schwerpunktthema: Schutz von Hinweisgebern und Informanten Guest Editorial Tiina Astola The European Commission’s Proposal for Strengthening Whistleblower Protection Georgia Georgiadou A Matter of Life and Death Whistleblowing Legislation in the EU Dr. Simone White État des lieux des programmes de protection des témoins et des collaborateurs de justice dans le domaine du crime organisé et du terrorisme David Chiappini La confiance mutuelle sous pression dans le cadre du transfert de personnes condamnées au sein de l’Union Européenne Dr. Tony Marguery 2018/ 3 ISSUE / Édition / AuSgAbe The Associations for European Criminal Law and the Protection of Financial Interests of the EU is a network of academics and practitioners. The aim of this cooperation is to develop a European criminal law which both respects civil liberties and at the same time protects European citizens and the European institutions effectively. Joint seminars, joint research projects and annual meetings of the associations’ presidents are organised to achieve this aim. Contents News* Articles protection of whistleblowers European Union and Collaborators with Justice Foundations Procedural Criminal Law 166 The European Commission’s Proposal 142 Fundamental Rights 155 Procedural Safeguards for Strengthening Whistleblower 146 Schengen 155 Data Protection Protection 157 Victim Protection Georgia Georgiadou Institutions 147 European Court of Justice (ECJ) Cooperation 170 A Matter of Life and Death 148 Europol 159 European Arrest Warrant Whistleblowing Legislation in the EU 148 Eurojust 161 Customs Cooperation Dr. Simone White 148 Frontex 161 Law Enforcement Cooperation 149 Agency for Fundamental Rights 177 État des lieux des programmes de protec- (FRA) tion des témoins et des collaborateurs de justice dans le domaine du crime organisé Specific Areas of Crime / et du terrorisme Substantive Criminal Law David Chiappini 150 Protection of Financial Interests Council of Europe 150 Money Laundering 182 La confiance mutuelle sous pression dans 153 Tax Evasion Foundations le cadre du transfert de personnes con- 153 Non-Cash Means of Payment 164 European Court of Human Rights damnées au sein de l’Union Européenne 154 Counterfeiting & Piracy Dr. Tony Marguery 154 Cybercrime Procedural Criminal Law Imprint * The news contain internet links referring to more detailed information. As of 2018, these links are being embedded into the news text. They can be easily accessed by clicking on the underlined text in the online version of the journal. If an external website features multiple languages, the Internet links generally refer to the English version. For other language versions, please navigate using the external website. Guest Editorial Dear Readers, Many recent scandals, such as Dieselgate, Luxleaks, the Pana- needed legal framework for ma Papers, and Cambridge Analytica, might never have come robust protection of whistle- to light if “insiders” had not had the courage to speak up about blowers across the EU. The wrongdoing occurring in their workplaces. These are only a proposed, common, minimum few examples of how whistleblowers help detect, investigate, standards strike a balance and remedy violations of law that can seriously damage the between the need to protect public interest and the welfare of our citizens and societies. whistleblowers and the need to discourage the reporting Those who help uncover illegal activities should not have to of malicious information and suffer any personal or professional disadvantages or even be prevent unjustified reputa- punished because of their actions. However, reality has repeat- tional damage. At the same edly shown that whistleblowers take high personal risks with time, these new standards help their jobs, their reputations, or even their health. They often safeguard the public’s right Tiina Astola end up paying a high price: many are fired, demoted, harassed, to access information and sued, or blacklisted. Without sufficient legal protection against to media freedom by protecting those who act as sources for retaliation and reliable avenues to report wrongdoing, it is only investigative journalists should their identity be revealed. natural that potential whistleblowers are reluctant to come for- ward with their concerns. Once adopted, the proposed rules are bound to make a differ- ence in workplace culture: both public servants and private Data from surveys and studies document this reluctance. The sector employees will have clear and easily accessible chan- 2017 Special Eurobarometer on corruption, for instance, in- nels for reporting. They should feel reassured that it is safe and dicated that 81 % of Europeans did not report corruption they acceptable for them to speak up in order to protect the public had experienced or witnessed. Similar results were revealed in interest. the Commission’s 2017 public consultation on whistleblow- er protection, where 85 % of respondents said they believed Providing strong whistleblower protection will contribute to that workers very rarely or rarely report concerns over threats the effective detection and prevention of violations of EU law and harm to the public because they fear legal and financial that may cause serious harm to the public interest. It will also consequences. Last but not least, the 2017 study by Milieu Ltd, strengthen transparency, good governance, accountability, and which was commissioned by the European Commission, esti- freedom of expression in the EU. mated the loss of potential benefits due to a lack of whistleblower protection in the area of public procurement to be in the range The Commission is currently supporting negotiations on the of €5.8 to €9.6 billion each year for the EU as a whole. proposal between the two co-legislators, the European Parlia- ment and the Council, with a view towards its adoption before A major factor contributing to this situation of underreport- the end of this legislative period. Since the proposal is still ing is currently the high level of fragmentation across the under scrutiny, it is too early to say whether and to what extent EU as regards whistleblower protection. This consistently led the Union’s efforts will pay off. One thing is clear: in the face EU institutions, civil society organisations, and trade unions to of recent scandals exposing weak controls in the area of bank- call for EU-wide legislation on the protection of whistleblow- ing and financial markets, nuclear safety, and environmental ers in the EU in both the public and private sectors. protection, the Union must act! With its proposal of 23 April 2018 for a “Directive on the Tiina Astola protection of persons reporting on breaches of Union law” Director-General – European Commission − Directorate-Gen- (COM(2018) 218 final), the Commission sets out a much eral for Justice and Consumers eucrim 3 / 2018 | 141 News Actualités / Kurzmeldungen pointing to an infringement of the Euro- pean ne bis in idem principle. Although the order of the Higher Re- gional Court of Innsbruck had become final, the defendants referred to Sec. 363a of the Austrian Code of Criminal Procedure and asked the Austrian Su- European Union* preme Court (Oberster Gerichtshof) for a rehearing of the criminal proceedings Reported by Thomas Wahl (TW) and Cornelia Riehle (CR) because the Higher Regional Court had wrongly neglected their fundamental rights according to EU law. Against this background, the Supreme ty of res judicata is limited to the ECHR, Court referred the question to the CJEU: Foundations the question arises as to whether it also whether EU law, in particular Art. 4(3) Fundamental Rights covers infringements of fundamental TEU in conjunction with the principles rights guaranteed by other legal sources, of equivalence and effectiveness inferred CJEU: No Rehearing for Alleged in particular the EU’s Charter of Funda- from it, obliges Sec. 363a of the Crimi- Infringements of EU Fundamental mental Rights (CFR). nal Code of Procedure to be applied to Rights The Facts of the Case and the Ques- alleged infringements of fundamental On 24 October 2018, the CJEU tion Referred rights guaranteed by EU law (in the case spot published a judgment on the This question was triggered by a case in at issue: Art. 50 CFR, Art. 54 CISA). light question of whether national Austria that concerned several defend- The CJEU’s Answer legislation laying down a remedy allow- ants who were alleged to have illegally The CJEU ruled that EU law must be ing criminal proceedings to be reheard obtained VAT refunds of over 835,000 interpreted such that a national court is in the event of infringement of the Swiss francs. The Swiss Prosecutor’s not required to extend to infringements ECHR must be extended to alleged in- Office submitted mutual legal assistance of EU law, in particular to infringements fringements of fundamental rights en- requests to the Austrian judicial authori- of the fundamental rights guaranteed in shrined in EU law (Case C-234/17 – XC, ties, with a view to the parties concerned Art. 50 CFR and Art. 54 CISA, a rem- YB and ZA). being questioned by the prosecution of- edy under national law permitting, only The Legal Question fice of Feldkirch, Austria. The requested in the event of infringements of the Member States often allocate a special defendants XC, YB, and ZA appealed ECHR