15 Amendments of Mireille D'ORNANO related to 2018/0106(COD)
Amendment 204 #
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. Several recent examples of retaliation against whistleblowers have significantly contributed to these fears.
Amendment 206 #
Proposal for a directive
Recital 3
Recital 3
(3) In certain policy areas, breaches of Union law or the national law of the Member State concerned 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 enhance enforcement by ensuring effective protection of whistleblowers from retaliation and introducing effective reporting channels.
Amendment 208 #
Proposal for a directive
Recital 4
Recital 4
(4) Whistleblower protection currently provided in the European Union is fragmented across Member States and, uneven across policy areas and often seriously inadeqaute. The consequences of breaches of Union law with cross-border dimension uncovered by whistleblowers illustrate how insufficient protection in one Member State not only negatively impacts on the functioning of EU policies in that Member State but can also spill over into other Member States and the Union as a whole.
Amendment 209 #
Proposal for a directive
Recital 6
Recital 6
(6) Whistleblower protection is necessary in particular 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, violate 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 proper functioning of the internal market.
Amendment 210 #
Proposal for a directive
Recital 7
Recital 7
(7) In the area of financial services, where whistleblowing is particularly common, the added value of whistleblower protection was already acknowledged by the Union legislator. In the aftermath of the financial crisis, which exposed serious shortcomings in the enforcement of the relevant rules, measures for the protection of whistleblowers were introduced in a significant number of legislative instruments in this area34. In particular, in the context of the prudential framework applicable to credit institutions and investment firms, Directive 2013/36/EU35 provides for protection of whistleblowers, which extends also to Regulation (EU) No 575/2013 on prudential requirements for credit institutions and investment firms. _________________ 34 Communication of 8.12.2010 "Reinforcing sanctioning regimes in the financial services sector". 35 Directive 2013/36/EU of the European Parliament and of the Council of 26 June 2013 on access to the activity of credit institutions and the prudential supervision of credit institutions and investment firms, amending Directive 2002/87/EC and repealing Directives 2006/48/EC and 2006/49/EC (OJ L 176, 27.6.2013, p. 338).
Amendment 211 #
Proposal for a directive
Recital 8
Recital 8
(8) As regards the safety of products placed into the internal market, the primary source of evidence-gathering are businesses involved in the manufacturing and distribution chain, so that reporting by whistleblowers has a high added value, since they are much closer to the source of possible unfair and illicit manufacturing, import or distribution practices of unsafe products. That being so, whistleblowers can help to intensify the fight against fraud, protect the environment and improve the food safety of consumers. This warrants the introduction of whistleblower protection in relation to the safety requirements applicable both to ‘harmonised products’36 and to ‘non- harmonised products’37. Whistleblower protection is also instrumental in avoiding diversion of firearms, their parts and components and ammunition, as well as defence-related products, by encouraging the reporting of breaches, such as document fraud, altered marking or false declarations of import or export and fraudulent intra-communitarian acquisition of firearms where violations often imply a diversion from the legal to the illegal market. Whistleblower protection will also help prevent the illicit manufacture of homemade explosives by contributing to the correct application of restrictions and controls regarding explosives precursors. _________________ 36 The body of relevant ‘Union harmonisation legislation’ is circumscribed and listed in Regulation [XXX] laying down rules and procedures for compliance with and enforcement of Union harmonisation legislation, 2017/0353 (COD). 37 Regulated by Directive (EC) 2001/95 of the European Parliament and of the Council, of 3 December 2001, on general product safety (OJ L 11, p. 4).
Amendment 215 #
Proposal for a directive
Recital 13
Recital 13
(13) In the same vein, whistleblowers’ reports can be key tomust be able to play a key role in detecting and preventing, reducing or eliminating risks to public health and to consumer protection resulting from breaches of Union rules or national law which might otherwise remain hidden. The fact that numerous cases of fraud have been revealed which had a potential impact on consumer health underlines the importance of the role that whistleblowers can play in this respect. In particular, consumer protection is also strongly linked to cases where unsafe products can cause considerable harm to consumers. Whistleblower protection should therefore be introduced in relation to relevant Union rules adopted pursuant to Articles 114, 168 and 169 TFEU.
Amendment 218 #
Proposal for a directive
Recital 21
Recital 21
(21) This Directive should be without prejudice to the protection of national security and other classified information which Union law or the laws, regulations or administrative provisions in force in the Member State concerned require, for security reasons, to be protected from unauthorised access. In particular, Moreover, the provision of this Directive should not affect the obligations arising from Commission Decision (EU, Euratom) 2015/444 of 13 March 2015 on the security rules for protecting EU classified information or Council Decision of 23 September 2013 on the security rules for protecting EU classified information. This Directive should also ensure that the information disclosed by whistleblowers is subject to treatment that cannot undermine the credibility of the authorities in charge of national security and public confidence in those authorities.
Amendment 219 #
Proposal for a directive
Recital 24
Recital 24
(24) Persons need specific legal protection where they acquire the information they report through their work- related activities and therefore run the risk of work-related retaliation (for instance, for breaching the duty of confidentiality or loyalty). The underlying reason for providing them with protection is their position of economic vulnerability, and that of their families, vis-à- vis the person on whom they de facto depend for work. When there is no such work-related power imbalance (for instance in the case of ordinary complainants or citizen bystanders) there is no need for protection against retaliation.
Amendment 221 #
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. Such acts or omissions must, however, be defined with caution and precision since, in the light of the definition given above, they do not constitute clear-cut breaches of legislation.
Amendment 222 #
Proposal for a directive
Recital 37
Recital 37
(37) For the effective detection and prevention of breaches of Union law it is vital that the relevant information reaches swiftly those closest to the source of the problem, most able to investigate and with powers to remedy it, where possible. This requires that legal entities in the private and the public sector establish appropriate internal procedures, in accordance with national law and the legal principles in force in the Member State concerned, for receiving and following-up on reports.
Amendment 226 #
Proposal for a directive
Recital 49
Recital 49
(49) Lack of confidence in the usefulness of reporting is one of the main factors discouraging potential whistleblowers. This warrants imposing a clear obligation on competent authorities to diligently follow-up on the reports received, and, within a reasonable timeframe, give feedback to the reporting persons about the action envisaged or taken as follow-up irrespective of the outcome of the investigation carried out on the basis of the report (for instance, closure based on lack of sufficient evidence or other grounds, launch of an investigation and possibly its findings and/or measures taken to address the issue raised; referral to another authority competent to give follow- up) to the extent that such information would not prejudice the investigation or the rights of the concerned persons.
Amendment 227 #
Proposal for a directive
Recital 50
Recital 50
(50) Follow up and feedback should take place within a reasonable timeframe; this is warranted by the need to promptly address the problem that may be the subject of the report, as well asto enhance whistle-blowers' confidence that their report was worthwhile, and to avoid unnecessary public disclosures. Such timeframe should not exceed three months, but could be extended to six months, where necessary due to the specific circumstances of the case, in particular the nature and complexity of the subject of the report, which may require a lengthy investigation.
Amendment 231 #
Proposal for a directive
Recital 66
Recital 66
(66) Where retaliation occurs undeterred and unpunished, it has a chilling effect on potential whistleblowers. A clear prohibition of retaliation in law has an important dissuasive effect, further strengthened by provisions for personal liability and penalties - proportionate but applied effectively - for the perpetrators of retaliation.
Amendment 232 #
Proposal for a directive
Recital 78
Recital 78
(78) Penalties are necessary to ensure the effectiveness of the rules on whistleblower protection. Penalties against those who take retaliatory or other adverse actions against reporting persons can discourage further such actions. Penalties against persons who make a false report or disclosure demonstrated to be knowingly false are necessary to deter further malicious reporting and preserve the credibility of the system, on condition, of course, that it has been demonstrated that such persons knew the report or disclosure not to be true. The proportionality of such penalties should ensure that they do not have a dissuasive effect on potential whistleblowers.