Activities of Gilles LEBRETON related to 2018/0106(COD)
Legal basis opinions (1)
Protection of persons reporting on breaches of Union law
Amendments (44)
Amendment 43 #
Proposal for a directive
Recital 1
Recital 1
(1) Persons who work for an organisation or are in contact with it in the context of their work-related activities are often the first to know about threats or harm to the public interest which arise in this context. By ‘blowing the whistle’ they play a key role in exposing and preventing breaches of the law and in safeguarding the welfare of societysociety public interest. However, potential whistleblowers are often discouraged from reporting their concerns or suspicions for fear of retaliation.
Amendment 45 #
Proposal for a directive
Recital 2
Recital 2
(2) At Union level, reports by whistleblowers are one upstream component of enforcement of Union law: they feed national and Union enforcement systems with information leading to effective detection, investigation and prosecution of breachesmonitoring the correct application of Union law.
Amendment 50 #
Proposal for a directive
Recital 3
Recital 3
(3) In certain policy areas, breaches of Union law may cause serious harm to the public interest, in the sense of creating significant risks for the welfare of society. Where weaknesses of enforcement have been identified in those areas, and whistleblowers are in a privileged position to disclose breaches, it is necessary to enhanceprovide a minimum framework to strengthen law enforcement by ensuring effective protection of whistleblowers from retaliation and introducing effective reporting channels.
Amendment 57 #
Proposal for a directive
Recital 6
Recital 6
(6) Whistleblower protection is necessary to enhance the enforcement of Union law on public procurement. In addition to the need of preventing and detecting fraud and corruption in the context of the implementation of the EU budget, including procurement, it is necessary to tackle insufficient enforcement of rules on public procurement by national public authorities and certain public utility operators when purchasing goods, works and services. Breaches of such rules create distortions of competition, increase costs for doing business, violthreaten the interests of investors and shareholders and, overall, lower attractiveness for investment and create an uneven level playing field for all businesses across Europe, thus affecting the propefair functioning of the internal market.
Amendment 74 #
Proposal for a directive
Recital 1
Recital 1
(1) Persons who work for an organisation or are in contact with it in the context of their work-related activities are often the first to know about threats or harm to the public interest which arise in this context. By ‘blowing the whistle’ they play a key role in exposing and preventing breaches of the law and in safeguarding the welfare of society. However, potential whistleblowers are often discouraged from reporting their concerns or suspicions for fear of retaliation.
Amendment 85 #
Proposal for a directive
Recital 3
Recital 3
(3) In certain policy areas, breaches of Union law may cause serious harm to the public interest, in the sense of creating significant risks for the welfare ofto society. Where weaknesses of enforcement have been identified in those areas, and whistleblowers are in a privileged position to disclose breaches, it is necessary to enhance enforcement by ensuring effective protection of whistleblowers from retaliation and introducing effective reporting channels.
Amendment 88 #
Proposal for a directive
Recital 29
Recital 29
(29) Effective detection and prevention of serious harm to the public interest requires that the information reported which qualifies for protection covers not only unlawful activities but also abuse of law, namely acts or omissions which do not appear to be unlawful in formal terms but defeat the object or the purpose of the law as well as, more generally, on any reprehensible act detrimental to the public interest.
Amendment 94 #
Proposal for a directive
Recital 31
Recital 31
(31) Retaliation expresses the close (cause and effect) relationship that must exist between the report and the adverse treatment suffered, directly or indirectly, by the reporting person, so that this person can enjoy legal protection. Effective protection of reporting persons as a means of enhancing the enforcement of Union law requires a broad definition of retaliation, encompassing any act or omission occurring in the work-related context which causes them detriment without this definition being limitative and exhaustive.
Amendment 114 #
Proposal for a directive
Recital 44 a (new)
Recital 44 a (new)
(44 a) Respect for the confidentiality of the identity of the person issuing an alert or disclosure is an essential element in avoiding any self-censorship mechanism. This principle of confidentiality may be waived only in exceptional circumstances, (a) where the disclosure of information relating to the identity of the person issuing an alert or disclosure is a necessary and proportionate obligation required by Union or national law in the context of subsequent or ongoing investigations or judicial proceedings,(b) for the purpose of guaranteeing a right, such as the right of defence of the person concerned. In the event of a breach of the principle of confidentiality relating to the identity of the person who issued an alert or disclosure, appropriate sanctions should be provided for.
Amendment 133 #
(29) Effective detection and prevention of serious harm to the public interest requires that the information reported which qualifies for protection covers not only unlawful activities but also abuse of law, namely acts or omissions which do not appear to be unlawful in formal terms but defeat the object or the purpose of the law and, more generally, any act of wrongdoing that is prejudicial to the public interest.
Amendment 143 #
Proposal for a directive
Recital 31
Recital 31
(31) Retaliation expresses the close (cause and effect) relationship that must exist between the report and the adverse treatment suffered, directly or indirectly, by the reporting person, so that this person can enjoy legal protection. Effective protection of reporting persons as a means of enhancing the enforcement of Union law requires a broad definition of retaliation, encompassing any act or omission occurring in the work-related context which causes them detriment, although this definition is not restrictive or exhaustive.
Amendment 163 #
Proposal for a directive
Article 1 – paragraph 1 – introductory part
Article 1 – paragraph 1 – introductory part
1. With a view to enhancing the enforcement of Union law and policies in specific areas, this Directive lays down common minimum standards for the protection of persons reporting on the following unlawfuillegal activities or abuse of law:
Amendment 166 #
Proposal for a directive
Recital 44 a (new)
Recital 44 a (new)
(44a) Keeping whistleblowers’ identity confidential is essential in order to avoid self-censorship. This principle of confidentiality can only be waived in exceptional circumstances in which disclosure of information about a whistleblower’s identity is a necessary and proportionate obligation under Union or national law in the context of investigations or subsequent or current judicial proceedings, to safeguard a right, such as the right of defence of the person concerned. Appropriate sanctions should be instituted which are to be applied in the event of a breach of the principle of confidentiality concerning the whistleblower’s identity.
Amendment 182 #
Proposal for a directive
Article 2 – paragraph 1 – introductory part
Article 2 – paragraph 1 – introductory part
1. This Directive shall apply to reporting persons acting in a disinterested manner, having had personal knowledge of the information and working in the private or public sector who acquired information on breaches in a work-related context including, at least, the following:
Amendment 196 #
Proposal for a directive
Article 2 – paragraph 2
Article 2 – paragraph 2
2. This Directive shall also apply to reporting persons whose work-based relationship is yet to begin in cases where information concerning a breach has been acquired during the recruitment process or other pre-contractual negotiation as well as informants whose working relationship has ended.
Amendment 206 #
Proposal for a directive
Article 3 – paragraph 1 – point 1
Article 3 – paragraph 1 – point 1
(1) ‘breaches’ means actual or potential unlawfuillegal activities or abuse of law relating to the Union acts and areas falling within the scope referred to in Article 1 and in the Annex;
Amendment 207 #
Proposal for a directive
Article 3 – paragraph 1 – point 2
Article 3 – paragraph 1 – point 2
(2) ‘unlawfuillegal activities’ means acts or omissions contrary to Union law;
Amendment 209 #
Proposal for a directive
Article 3 – paragraph 1 – point 3
Article 3 – paragraph 1 – point 3
(3) ‘abuse of law’ means acts or omissions falling within the scope of Union, a serious threat or damage to the general interest law which do not appear to be unlawfuillegal in formal terms but defeat the object or the purpose pursued by the applicable rules;
Amendment 216 #
Proposal for a directive
Article 3 – paragraph 1 – point 9
Article 3 – paragraph 1 – point 9
(9) ‘reporting person’ means a natural or legal person who reports or discloses information on breaches acquired in the context of his or her work-related activities;, i.e. who reveals or reports, in a disinterested and good faith, a fact of which he has personal knowledge and which constitutes: - a crime or misdemeanor; - a serious and manifest violation of a regularly ratified or approved international commitment by the European Union or a unilateral act of an international organisation taken on the basis of such a commitment, and the laws and regulations; - a threat or serious prejudice to the public interest.
Amendment 222 #
Proposal for a directive
Article 3 – paragraph 1 – point 12
Article 3 – paragraph 1 – point 12
(12) ‘retaliation’ means any threatened or actual act or omission prompted by the internal or external reporting which occurs in a work-related context and causes or may cause unjustified detriment to the reporting person, in good faith, reflecting a serious threat or injury to the public interest;
Amendment 223 #
Proposal for a directive
Article 1 – paragraph 1 – introductory part
Article 1 – paragraph 1 – introductory part
Amendment 243 #
Proposal for a directive
Article 5 – paragraph 1 – point b a (new)
Article 5 – paragraph 1 – point b a (new)
b a) a confidential notification of the receipt of the alert to the person issuing the alert within seven days of receipt;
Amendment 245 #
Proposal for a directive
Article 5 – paragraph 1 – point d
Article 5 – paragraph 1 – point d
d) a reasonable timeframe, not exceeding three months following the reporta period of between one and three months from the date of notification, to provide feedback to the reporting person about the follow-up to the report;
Amendment 248 #
Proposal for a directive
Article 2 – paragraph 1 – introductory part
Article 2 – paragraph 1 – introductory part
1. This Directive shall apply to reporting persons acting in a disinterested fashion who have personally gained knowledge of the information working in the private or public sector who acquired information on breaches in a work-related context including, at least, the following:
Amendment 270 #
Proposal for a directive
Article 2 – paragraph 2
Article 2 – paragraph 2
2. This Directive shall also apply to reporting persons whose work-based relationship is yet to begin in cases where information concerning a breach has been acquired during the recruitment process or other pre-contractual negotiation, as well as to reporting persons whose working relationship has ceased, as well as reporting persons whose employment has ceased.
Amendment 278 #
Proposal for a directive
Article 9 – paragraph 1 – point a a (new)
Article 9 – paragraph 1 – point a a (new)
a a) a confidential notification of the receipt of the alert to the person issuing the alert within seven days of receipt;
Amendment 285 #
Proposal for a directive
Article 3 – paragraph 1 – point 1
Article 3 – paragraph 1 – point 1
Amendment 289 #
Proposal for a directive
Article 3 – paragraph 1 – point 2
Article 3 – paragraph 1 – point 2
Amendment 291 #
Proposal for a directive
Article 10 – paragraph 1 – point g
Article 10 – paragraph 1 – point g
g) a statement clearly explaining that persons making information available to the competent authority in accordance with this Directive are not considered to be infringing any restriction on disclosure of information imposed by contract or by any legislative, regulatory or administrative provision, and are not to be involved in liability of any kind related to such disclosure. This statement however mentions three exceptions to this principle allow Member States to protect protected secrets on the basis of constitutional and conventional principles: (a) Secrets of national defence, (b) Secrets of the relationship between a lawyer and his client, (c) and medical confidentiality.
Amendment 294 #
Proposal for a directive
Article 3 – paragraph 1 – point 3
Article 3 – paragraph 1 – point 3
(3) ‘abuse of law’ means acts or omissions falling within the scope of Union law or a serious threat or damage to the public interest which do not appear to be unlawful in formal terms but defeat the object or the purpose pursued by the applicable rules;
Amendment 300 #
Proposal for a directive
Article 3 – paragraph 1 – point 9
Article 3 – paragraph 1 – point 9
9. ‘reporting person’ means a natural or legal person who reports or discloses information on breaches acquired in the context of his or her work-related activities;, in other words someone who discloses or reports, impartially and in good faith, an action he or she was personally aware of, and which constitutes: - a crime or an offence; - a serious and flagrant breach of an international commitment that is regularly ratified or approved by the European Union, or of a unilateral act of an organisation based on this commitment, as well as legal and regulatory provisions; - a serious threat or serious harm to public interest.
Amendment 307 #
Proposal for a directive
Article 3 – paragraph 1 – point 12
Article 3 – paragraph 1 – point 12
12. ‘retaliation’ means any threatened or actual act or omission prompted by the internal or external reporting which occurs in a work-related context and causes or may cause unjustified detriment to the reporting person acting in good faith who is reporting on a threat or serious harm to the public interest;
Amendment 355 #
Proposal for a directive
Article 5 – paragraph 1 – point b a (new)
Article 5 – paragraph 1 – point b a (new)
(ba) a confidential notification of receipt of the report to the reporting person within no more than seven days following receipt;
Amendment 356 #
Proposal for a directive
Article 15 – paragraph 4
Article 15 – paragraph 4
4. Persons reporting externally to competent authorities or making a public disclosure in accordance with this Directive shall not be considered to have breached any restriction on disclosure of information imposed by contract or by any legislative, regulatory or administrative provision, and incur liability of any kind in respect of such disclosure. However, three exceptions to this principle allow Member States to protect protected secrets on the basis of constitutional and conventional principles: (a) Secrets of national defence, (b) Secrets of the relationship between a lawyer and his client, (c) and medical confidentiality.
Amendment 359 #
Proposal for a directive
Article 5 – paragraph 1 – point d
Article 5 – paragraph 1 – point d
d) a reasonable timeframe, not exceeding a timeframe of between one month and three months following the reportnotification, to provide feedback to the reporting person about the follow-up to the report;
Amendment 369 #
Proposal for a directive
Article 17 – paragraph 1 – introductory part
Article 17 – paragraph 1 – introductory part
1. Member States shall provide for effective, proportionate and dissuasive appeals and/or penalties applicable to natural or legal persons that:
Amendment 381 #
Proposal for a directive
Article 17 – paragraph 2
Article 17 – paragraph 2
2. Member States shall provide for effective, proportionate and dissuasive appeals and/or penalties applicable to persons making malicious or abusive reports or disclosures, including measures for compensating persons who have suffered damage from malicious or abusive reports or disclosures.
Amendment 383 #
Proposal for a directive
Article 19 – paragraph 1
Article 19 – paragraph 1
Member States may introduce or readopt or maintain provisions more favourable to the rights of the reporting persons than those set outinformants and the rights of persons concerned by the alert than those provided for in this Directive, without prejudice to Articles 16 and Article 17(2)17(2), in order to enable Member States to provide effective guarantees of confidentiality.
Amendment 400 #
Proposal for a directive
Article 9 – paragraph 1 – point a a (new)
Article 9 – paragraph 1 – point a a (new)
(aa) a confidential notification of receipt of the report to the reporting person within no more than seven days following receipt;
Amendment 407 #
Proposal for a directive
Article 10 – paragraph 1 – point g
Article 10 – paragraph 1 – point g
g) a statement clearly explaining that persons making information available to the competent authority in accordance with this Directive are not considered to be infringing any restriction on disclosure of information imposed by contract or by any legislative, regulatory or administrative provision, and are not to be involved in liability of any kind related to such disclosure. This statement does, however, specify three exceptions to this principle that allow Member States to safeguard secrets protected under conventional and constitutional principles: a) secrets of national defence, b) secrets concerning relations between a lawyer and his/her client, c) medical confidentiality.
Amendment 482 #
Proposal for a directive
Article 15 – paragraph 4
Article 15 – paragraph 4
4. Persons reporting externally to competent authorities or making a public disclosure in accordance with this Directive shall not be considered to have breached any restriction on disclosure of information imposed by contract or by any legislative, regulatory or administrative provision, and incur liability of any kind in respect of such disclosure. However, three exceptions to this principle do allow Member States to safeguard secrets protected under conventional and constitutional principles: a) secrets of national defence, b) secrets concerning relations between a lawyer and his/her client, c) medical confidentiality.
Amendment 495 #
Proposal for a directive
Article 17 – paragraph 1 – introductory part
Article 17 – paragraph 1 – introductory part
1. Member States shall provide for remedies and/or effective, proportionate and dissuasive penalties applicable to natural or legal persons that:
Amendment 503 #
Proposal for a directive
Article 17 – paragraph 2
Article 17 – paragraph 2
2. Member States shall provide for remedies and/or effective, proportionate and dissuasive penalties applicable to persons making malicious or abusive reports or disclosures, including measures for compensating persons who have suffered damage from malicious or abusive reports or disclosures.
Amendment 510 #
Proposal for a directive
Article 19 – paragraph 1
Article 19 – paragraph 1
Member States may introduce or retain provisions more favourable to the rights of the reporting persons and the persons who are the subject of the report than those set out in this Directive, without prejudice to Article 16 and Article 17(2), to ensure Member States are able to provide genuine guarantees of confidentiality.