Activities of Damian DRĂGHICI related to 2018/0106(COD)
Shadow opinions (1)
OPINION on the proposal for a directive of the European Parliament and of the Council on protection of persons reporting on breaches of Union law
Amendments (39)
Amendment 102 #
Proposal for a directive
Citation 6 a (new)
Citation 6 a (new)
Having regard to the Charter of Fundamental Rights of the European Union, in particular Article 11 on Freedom of expression and information,
Amendment 103 #
Proposal for a directive
Citation 6 b (new)
Citation 6 b (new)
Having regard to the European Parliament resolution of 14 February 2017 on the role of whistleblowers in the protection of EU’s financial interests,
Amendment 104 #
Proposal for a directive
Citation 6 c (new)
Citation 6 c (new)
Amendment 106 #
Proposal for a directive
Recital 2
Recital 2
(2) At Union level, reports by whistleblowers are one upstream component of enforcement of Union law and policies: they feed national and Union enforcement systems with information leading to effective detection, investigation and prosecution of breaches of Union law.
Amendment 108 #
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 enhance enforcement by ensuring effective protection of whistleblowers from retaliation and introducing safe and effective reporting channels.
Amendment 110 #
Proposal for a directive
Recital 5
Recital 5
(5) Accordingly, common minimum standards ensuring effective whistleblower protection should apply in those acts and policy areas where i) there is a need to strengthen enforcement; ii) under-reporting by whistleblowers is a key factor affecting enforcement, and iii) breaches of Union law cause serious harm to the public interest.
Amendment 114 #
Proposal for a directive
Recital 10
Recital 10
(10) Evidence-gathering, detecting and addressing environmental crimes and unlawful conduct against the protection of the environment remain a challenge and need to be reinforced as acknowledged in the Commission Communication "EU actions to improve environmental compliance and governance" of 18 January 201840. Whilst whistleblower protection rules exist at present only in one sectorial instrument on environmental protection41, the introduction of such protection appears necessary to ensure effective enforcement of the Union environmental acquis, whose breaches can cause serious harm to the public interest with possible spill-over impacts across national borders. This is also relevant in cases where unsafe products can cause environmental harm. _________________ 40 COM(2018) 10 final. 41 Directive 2013/30/EU of the European Parliament and of the Council, of 12 June 2013, on safety of offshore oil and gas operations (OJ L 178, p. 66).
Amendment 116 #
Proposal for a directive
Recital 14
Recital 14
(14) The protection of privacy and personal data is another area where whistleblowers are in a privileged position to disclose breaches of Union law which can seriously harm the public interest. Similar considerations apply for breaches of the Directive on the security of network and information systems45, which introduces notification of incidents (including those that do not compromise personal data) and security requirements for entities providing essential services across many sectors (e.g. energy, health, transport, banking, etc.) and providers of key digital services (e.g. cloud computing services). Whistleblowers' reporting in this area is particularly valuable to prevent security incidents that would affect key economic and social activities and widely used digital services. It helps ensuring the continuity of services which are essential for the functioning of the internal market and the wellbeing of society. _________________ 45 Directive (EU) 2016/1148 of the European Parliament and of the Council of 6 July 2016 concerning measures for a high common level of security of network and information systems across the Union.
Amendment 121 #
Proposal for a directive
Recital 22
Recital 22
(22) Persons who report information about threats or harm to the public interest obtained in the context of their work- related activities make use of their right to freedom of expression. The right to freedom of expression, enshrined in Article 11 of the Charter of Fundamental Rights of the European Union (‘the Charter’) and in Article 10 of the European Convention on Human Rights (ECHR), encompasses the right to receive and impart information as well as media freedom and pluralism.
Amendment 122 #
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 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 126 #
Proposal for a directive
Recital 25
Recital 25
(25) Effective enforcement of Union law requires that protection isprotection needs to be granted to the broadest possible range of categories of persons, who, irrespective of whether they are EU citizens or third- country nationals, by virtue of work-related activities (irrespective of the nature of these activities, whether they are paid or not), have privileged access to information about breaches that would be in the public’'s interest to report and who may suffer retaliation if they report them. Member States should ensure that the need for protection is determined by reference to all the relevant circumstances and not merely by reference to the nature of the relationship, so as to cover the whole range of persons connected in a broad sense to the organisation where the breach has occurred.
Amendment 127 #
Proposal for a directive
Recital 26
Recital 26
(26) Protection should, firstly, apply to persons having the status of 'workers', within the meaning of Article 45 TFEU, as interpreted by the Court of Justice of the European Union52, i.e. persons who, for a certain period of time, perform services for and under the direction of another person, in return of which they receive remuneration. Protection should thus also be granted to workers in non-standard employment relationships, including part- time workers, paid trainees and fixed-term contract workers, as well as persons with a contract of employment or employment relationship with a temporary agency, which are types of relationships where standard protections against unfair treatment are often difficult to apply. _________________ 52 Judgments of 3 July 1986, Lawrie-Blum, Case 66/85; 14 October 2010, Union Syndicale Solidaires Isère, Case C-428/09; 9 July 2015, Balkaya, Case C-229/14; 4 December 2014, FNV Kunsten, Case C- 413/13; and 17 November 2016, Ruhrlandklinik, Case C-216/15.
Amendment 128 #
Proposal for a directive
Recital 27
Recital 27
(27) Protection should also extend to further categories of natural or legal persons, who, whilst not being 'workers' within the meaning of Article 45 TFEU, can play a key role in exposing breaches of the law and may find themselves in a position of economic vulnerability in the context of their work-related activities. For instance, in areas such as product safety, suppliers are much closer to the source of possible unfair and illicit manufacturing, import or distribution practices of unsafe products; in the implementation of Union funds, consultants providing their services are in a privileged position to draw attention to breaches they witness. Such categories of persons, including self- employed persons providing services, freelance, contractors, sub-contractors and suppliers, are typically subject to retaliation in the form of early termination or cancellation of contract of services, licence or permit, loss of business, loss of income, coercion, intimidation or harassment, blacklisting/business boycotting or damage to their reputation. Shareholders and persons in managerial bodies, may also suffer retaliation, for instance in financial terms or in the form of intimidation or harassment, blacklisting or damage to their reputation. Protection should also be granted to candidates for employment or for providing services to an organisation who acquired the information on breaches of law during the recruitment process or other pre-contractual negotiation stage, and may suffer retaliation for instance in the form of negative employment references or blacklisting/business boycotting.
Amendment 130 #
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.
Amendment 133 #
Proposal for a directive
Recital 30
Recital 30
(30) Effective prevention of breaches of Union law requires that protection is also granted to persons who provide information about potential breaches, which have not yet materialised, but are likely to be committed. For the same reasons, protection is warranted also for persons who do not provide positive evidence but raise reasonable concerns or suspicions. At the same time, protection should not apply to the reporting of information which is already in the public domain or of unsubstantiated rumours and hearsay.
Amendment 137 #
Proposal for a directive
Recital 33
Recital 33
(33) Whistleblowers are, in particular, important sources for investigative journalists. Providing effective protection to whistleblowers from retaliation increases the legal certainty of (potential) whistleblowers and thereby encourages and facilitates whistleblowing also to the media. In this respect, protection of whistleblowers as journalistic sources is crucial for safeguarding the ‘watchdog’ role of investigative journalism and fostering a culture of accountability and transparency in democratic societies.
Amendment 138 #
Proposal for a directive
Recital 34
Recital 34
(34) It is for the Member States to identify the authorities competent to receive and give appropriate follow up to the reports on breaches falling within the scope of this Directive. These may be regulatory or supervisory bodies in the areas concerned, law enforcement agencies, anti-corruption bodies and ombudsmen. The authorities designated as competent shall be independent and have the necessary capacities and powers to impartially and objectively assess the accuracy of the allegations made in the report and to address the breaches reported, including by launching an investigation, prosecution or action for recovery of funds, or other appropriate remedial action, in accordance with their mandate.
Amendment 147 #
Proposal for a directive
Recital 45
Recital 45
(45) The most appropriate persons or departments within a private legal entity to be designated as competent to receive and follow up on reports depend on the structure of the entity, but, in any case, they shall be designated in close collaboration with the employees or employee representatives and their function should ensure absence of conflict of interest and independence. In smaller entities, this function could be a dual function held by a company officer well placed to report directly to the organisational head, such as a chief compliance or human resources officer, a legal or privacy officer, a chief financial officer, a chief audit executive or a member of the board.
Amendment 149 #
Proposal for a directive
Recital 46
Recital 46
(46) In the context of internal reporting, the quality and transparency of information provided on the follow up procedure to the report is crucial to build trust in the effectiveness of the overall system of whistleblower protection and reduces the likelihood of further unnecessaryjustified reports or public disclosures. The reporting person should be informed within a reasonable timeframe about the action envisaged or taken as follow up to the report (for instance, closure based on lack of sufficient evidence or other grounds, launch of an internal enquiry and possibly its findings and/or measures taken to address the issue raised, referral to a competent authority for further investigation) as far as such information would not prejudice the enquiry or investigation or affect the rights of the concerned person. Such reasonable timeframe should not exceed in total three months. Where the appropriate follow -up is still being determined, the reporting person should be informed about this and about any further feedback he/she should expect.
Amendment 153 #
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 as to avoid unnecessaryjustified 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 156 #
Proposal for a directive
Recital 53
Recital 53
(53) Dedicated staff members of the competent authorities, who are professionally trained on a regular basis, including on applicable data protection rules, would be necessary in order to receive and handle reports and to ensure communication with the reporting person, as well as following up on the report in a suitable manner.
Amendment 166 #
Proposal for a directive
Recital 62
Recital 62
(62) As a rule, reporting persons should first use the internal channels at their disposal and report to their employer. However, it may be the case that internal channels do not exist (in case of entities which are not under an obligation to establish such channels by virtue of this Directive or applicable national law) or that their use is not mandatory (which may be the case for persons who are not in an employment relationship), or that they were used but did not function properly (for instance the report was not dealt with diligently or within a reasonable timeframe, or no action was taken to address the breach of law despite the positive results of the enquiry).
Amendment 170 #
Proposal for a directive
Recital 65
Recital 65
(65) Reporting persons should be protected against any form of retaliation, whether direct or indirect, taken by their employer or customer/recipient of services and by persons working for or acting on behalf of the latter, including co-workers and managers in the same organisation or in other organisations with which the reporting person is in contact in the context of his/her work-related activities, where retaliation is recommended or tolerated by the concerned person. Protection should be provided against retaliatory measures taken vis-à-vis the reporting person him/herself but also those that may be taken vis-à-vis the legal entity he/she represents, such as denial of provision of services, blacklisting or business boycotting. Indirect retaliation also includes actions taken against relatives of the reporting person who are also in a work-related connection with the latter’s employer or customer/recipient of services and workers’ representatives or other persons and organisations who have provided support to the reporting person.
Amendment 179 #
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 report or disclosure demonstrated to be deliberately and knowingly false are necessary to deter further malicious reporting and preserve the credibility of the system. The proportionality of such penalties should ensure that they do not have a dissuasive effect on potential whistleblowers.
Amendment 183 #
Proposal for a directive
Recital 84
Recital 84
(84) The objective of this Directive, namely to strengthen enforcement in certain policy areas and acts where breaches of Union law can cause serious harm to the public interest through effective whistleblower protection, cannot be sufficiently achieved by the Member States acting alone or in an uncoordinated manner, but can rather be better achieved by Union action providing minimum standards of harmonisation on whistleblower protection. Moreover, only Union action can provide coherence and align the existing Union rules on whistleblower protection. Therefore, the Union may adopt measures in accordance with the principle of subsidiarity as set out in Article 5 of the Treaty on European Union. In accordance with the principle of proportionality, as set out in that Article, this Directive does not go beyond what is necessary in order to achieve this objective.
Amendment 185 #
1. With a view to protecting the public interest, safeguarding freedom of expression and 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 unlawful activities or abuse of law:
Amendment 203 #
(12) ‘retaliation’ means any threatened or actual act or omission prompted by the internal or external reporting or a public disclosure which occurs in a work-related context and causes or may cause unjustified detriment to the reporting person;
Amendment 207 #
Proposal for a directive
Article 4 – paragraph 1
Article 4 – paragraph 1
1. Member States shall ensure that legal entities in the private and in the public sector establish internal channels and procedures for reporting and following up on reports, following consultations with social partners, if appropriate.
Amendment 219 #
Proposal for a directive
Article 5 – paragraph 1 – point a
Article 5 – paragraph 1 – point a
(a) channels for receiving the reports which are designed, set up and operated in a manner that ensures the confidentiality of the identity of the reporting person and prevents access to non-authorised staff memberpersons;
Amendment 220 #
Proposal for a directive
Article 5 – paragraph 1 – point b
Article 5 – paragraph 1 – point b
(b) the designation, in close collaboration with employees or employee representatives, of a person or department competent for following up on the reports;
Amendment 228 #
Proposal for a directive
Article 5 – paragraph 3
Article 5 – paragraph 3
3. The person or department referred to in point (b) of paragraph 1 may be the same person who is competent for receiving the reports. Additional persons may be designated, in close collaboration with employees or employee representatives, as “trusted persons” from whom reporting persons and those considering reporting may seek confidential advice.
Amendment 235 #
Proposal for a directive
Article 6 – paragraph 2 – point a a (new)
Article 6 – paragraph 2 – point a a (new)
(aa) are independent and dispose over adequately qualified and trained staff and appropriate funding;
Amendment 244 #
Proposal for a directive
Article 7 – paragraph 1 – point b
Article 7 – paragraph 1 – point b
(b) they are designed, set up and operated in a manner that ensures the completeness, integrity and confidentiality of the information and prevents access to non-authorised staff members of the competent authoritypersons;
Amendment 249 #
Proposal for a directive
Article 8 – paragraph 1
Article 8 – paragraph 1
1. Member States shall ensure that competent authorities have staff members dedicated to handling reports. Dedicated staff members shall receive specific and regular training for the purposes of handling reports.
Amendment 250 #
Proposal for a directive
Article 8 – paragraph 2 – point a
Article 8 – paragraph 2 – point a
(a) providing any interested person with information on the procedures for reporting and on the protection to which he/she is entitled;
Amendment 252 #
Proposal for a directive
Article 9 – paragraph 1 – point a
Article 9 – paragraph 1 – point a
(a) the manner in which the competent authority may require the reporting person, or the reporting person, may request to clarify the information reported or to provide additional information that is available to the reporting person;
Amendment 289 #
Proposal for a directive
Article 14 – paragraph 1 – point j
Article 14 – paragraph 1 – point j
(j) failure to renew or early termination of the temporary employment or voluntary work contract;
Amendment 294 #
Proposal for a directive
Article 15 – paragraph 5
Article 15 – paragraph 5
5. In judicial proceedings relating to a detriment suffered by the reporting person, and subject to him or her providing reasonable grounds to believe that the detriment was in retaliation for having made the report or public disclosure, it shall be for the person who has taken the retaliatory measure to prove that the detriment was not a consequence of the report or public disclosure but was exclusively based on duly justified grounds.
Amendment 310 #
Proposal for a directive
Article 17 – paragraph 2
Article 17 – paragraph 2
2. Member States shall provide for effective, proportionate and dissuasive penalties applicable to persons making knowingly and deliberately malicious or abusive reports or disclosures, including measures for compensating persons who have suffered damage from such malicious or abusive reports or disclosures.