50 Amendments of Dietmar KÖSTER related to 2018/0106(COD)

Proposal for a directive
Recital 1

(1) Persons who work or worked for an organisation or are or were 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 andare often the first to know about threats, harm or criminal or illegal activities. By ‘blowing the whistle’ they play a key role in unveiling violations of fundamental rights and in safeguarding the welfare of society. Whistleblowers play a crucial role in unveiling wrongdoing or unethical and dishonest conduct to the public interest that is not unlawful. It is often difficult for them to assess the lawfulness of facts. Therefore according to the European Court of Human Rights the legal assessment is not the task of the whistleblowers.4 It ins s~~afeguarding the welfare of society~~ufficient that they act in good faith that the facts are correct. However, potential whistleblowers are often discouraged from reporting their concerns or suspicions for fear of retaliation. 4 ECHR, V. section, 27.07.2011 - 28274/08, Heinisch/Germany.

2018/09/18
Committee: LIBE

Proposal for a directive
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 effective reporting channelsIf whistleblowers make a disclosure in the public interest, their effective protection from retaliation must be insured and effective internal and external reporting channels must be introduced.

2018/09/18
Committee: LIBE

Proposal for a directive
Recital 4

(4) Whistleblower protection currently provided in the European Union is fragmented across Member States and uneven across policy areas. ~~The consequences of breaches of Union law with cross-border dimension uncovered by whistleblowers illustrate how i~~Whistleblowers shall be protected if they disclose breaches of law or wrongdoing or misconduct in the public interest. 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.

2018/09/18
Committee: LIBE

Proposal for a directive
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 interestall Union and national laws and areas.

2018/09/18
Committee: LIBE

Proposal for a directive
Recital 9

(9) The importance of whistleblower protection in terms of preventing and deterring breaches of Union rules on transport safety which can endanger human lives has been already acknowledged in sectorial Union instruments on aviation safety38 and maritime transport safety39 , which provide for tailored measures of protection to whistleblowers as well as specific reporting channels. These instruments also include the protection from retaliation of the workers reporting on their own honest mistakes (so called ‘just culture’). Inter alia it is necessary to complement the existing elements of whistleblower protection in these two sectors as well as to provide such protection to enhance the enforcement of safety standards for other transport modes, namely road and railway transport. _________________ 38 Regulation (EU) No 376/2014 of the European Parliament and of the Council, of 3 April 2014, on the reporting, analysis and follow-up of occurrences in civil aviation (OJ L 122, p. 18). 39 Directive 2013/54/EU, of the European Parliament and of the Council, of 20 November 2013, concerning certain flag State responsibilities for compliance with and enforcement of the Maritime Labour Convention (OJ L 329, p. 1), Directive 2009/16/EC of the European Parliament and of the Council, of 23 April 2009, on port State control (OJ L 131, p. 57).

2018/09/18
Committee: LIBE

Proposal for a directive
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.

2018/09/18
Committee: LIBE

Proposal for a directive
Recital 18 a (new)

(18 a) Whistleblowers who report misconduct and violations of labour and social law are key to ensuring safe and just workplaces. Breaches of rules in an organisation that are reported by persons who work or worked there or by persons who were in contact with it, shall be ensured full protection under this regulation.

2018/09/18
Committee: LIBE

Proposal for a directive
Recital 20

(20) This Directive should be without prejudice to the protection afforded to employees when reporting on ~~breaches of Union employment~~misconduct or wrongdoing or on breaches of Union as well as national law. In particular, in the area of occupational safety and health, Article 11 of Framework Directive 89/391/EEC already requires Member States to ensure that workers or workers' representatives shall not be placed at a disadvantage because of their requests or proposals to employers to take appropriate measures to mitigate hazards for workers and/or to remove sources of danger. Workers and their representatives are entitled to raise issues with the competent national authorities if they consider that the measures taken and the means employed by the employer are inadequate for the purposes of ensuring safety and health.

2018/09/18
Committee: LIBE

Proposal for a directive
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 f~~Freedom of expression, is essential in a democratic society. and 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 media freedom and pluralism.

2018/09/18
Committee: LIBE

Proposal for a directive
Recital 24

(24) No employment relationship should restrict someone’s right to freedom of expression. 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.~~

2018/09/18
Committee: LIBE

Proposal for a directive
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 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. Protection should thus also be granted to persons whose employment contract has ended either through for example retirement or end of contract and paid and unpaid trainees. Finally, protection should also be granted to civil servants. _________________ 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.

2018/09/18
Committee: LIBE

Proposal for a directive
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 and actual or potential unethical or dishonest misconduct or wrongdoing.

2018/09/18
Committee: LIBE

Proposal for a directive
Recital 30

(30) Effective prevention of ~~breaches of Union~~misconduct or wrongdoing or of breaches of Union as well as national 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.

2018/09/18
Committee: LIBE

Proposal for a directive
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 have the necessary capacities and powers to 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. The staff serving in those agencies shall be specialized and have proper training and formation including on European and national data protection legislation.

2018/09/18
Committee: LIBE

Proposal for a directive
Recital 42

(42) Provided the confidentiality and anonymity of the identity of the reporting person is ensured, it is up to each individual private and public legal entity to define the kind of reporting channels to set up, such as in person, by post, by physical complaint box(es), by telephone hotline or through an online platform (intranet or internet). However, reporting channels should not be limited to those amongst the tools, such as in-person reporting and complaint box(es), which do not guarantee confidentiality and anonymity of the identity of the reporting person.

2018/09/18
Committee: LIBE

Proposal for a directive
Recital 48

(48) Effective detection and prevention of breaches of Union law requires ensuring that potential whistleblowers can easily and in anonymity and full confidentiality bring the information they possess to the attention of the relevant competent authorities which are able to investigate and to remedy the problem, where possible.

2018/09/18
Committee: LIBE

Proposal for a directive
Recital 48

(48) Effective detection and prevention of breaches of Union law requires ensuring that potential whistleblowers can easily, andonymously or in full confidentiality, bring the information they possess to the attention of the relevant competent authorities which are able to investigate and to remedy the problem, where possible.

2018/09/18
Committee: LIBE

Proposal for a directive
Recital 55

(55) Member States should ensure that competent authorities have in place adequate protection procedures for the processing of reports of infringements and for the protection of the personal data of the persons referred to in the report. Such procedures should ensure that the identity and anonymity of every reporting person, concerned person, and third persons referred to in the report (e.g. witnesses or colleagues) is protected at all stages of the procedure. This obligation should be without prejudice to the necessity and proportionality of the obligation to disclose information when this is required by Union or national law and subject to appropriate safeguards under such laws, including in the context of investigations or judicial proceedings or to safeguard the freedoms of others, including the rights of defence of the concerned person.

2018/09/18
Committee: LIBE

Proposal for a directive
Recital 60

(60) To enjoy protection, the reporting persons should reasonably believe, in light of the circumstances and the information available to them at the time of the reporting, that the matters reported by them are true. This reasonable belief should be presumed unless and until proven otherwise. This is an essential safeguard against malicious and frivolous or abusive reports, ensuring that those who deliberately and knowingly report wrong or misleading information do not enjoy protection. At the same time, it ensures that protection is not lost where the reporting person made an inaccurate report in ~~honest error~~good faith. In a similar vein, reporting persons should be entitled to protection under this Directive if they have reasonable grounds to believe that the information reported falls within its scope.

2018/09/18
Committee: LIBE

Proposal for a directive
Recital 61

(61) The ~~requirement of a tiered use of reporting channels, as a general rule, i~~use of the different reporting channels necessary to ensure that the information gets to the persons who can contribute to the early and effective resolution of risks to the public interest ~~as well as to prevent unjustified reputational damage from public disclosure~~. At the same time, some ~~exception~~rules to its application are necessary, allowing the reporting person to choose the most appropriate channel depending on the individual circumstances of the case. Moreover, it is necessary to protect public disclosures taking into account democratic principles such as transparency and accountability, and fundamental rights such as freedom of expression and media freedom, whilst balancing the interest of employers to manage their organisations and to protect their interests with the interest of the public to be protected from harm, in line with the criteria developed in the case-law of the European Court of Human Rights57 . _________________ 57 whether retaliation against whistleblowers making public disclosures interferes with freedom of expression in a way which is not necessary in a democratic society, is whether the persons who made the disclosure had at their disposal alternative channels for making the disclosure; see, for instance, Guja v. Moldova [GC], no 14277/04, ECHR 2008.. One of the criteria for determining

2018/09/18
Committee: LIBE

Proposal for a directive
Recital 62

(62) ~~As a rule, r~~Reporting persons ~~should~~can 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).

2018/09/18
Committee: LIBE

Proposal for a directive
Recital 63

(63) In other cases, internal channels could not reasonably be expected to function properly, for instance, where the reporting persons have valid reasons to believe that they would suffer retaliation in connection with the reporting; that their confidentiality would not be protected or their anonymous report would not be investigated; that the ultimate responsibility holder within the work- related context is involved in the breach; that the breach might be concealed; that evidence may be concealed or destroyed; that the effectiveness of investigative actions by competent authorities might be jeopardised or that urgent action is required (for instance because of an imminent risk of a substantial and specific danger to the life, health and safety of persons, or to the environment. In all such cases, persons reporting externally to the competent authorities and, where relevant, to bodies, offices or agencies of the Union shall be protected and anonymous reports shall be investigated upon, if well evidenced. Moreover, protection is also to be granted in cases where Union legislation allows for the reporting person to report directly to the competent national authorities or bodies, offices or agencies of the Union, for example in the context of fraud against the Union budget, prevention and detection of money laundering and terrorist financing or in the area of financial services.

2018/09/18
Committee: LIBE

Proposal for a directive
Recital 64

(64) Persons making a public disclosure directly should also qualify for protection where the public has an overriding interest in being informed directly or in cases where a breach remains unaddressed (for example, it was not properly assessed or investigated or no remedial action was taken) despite having been reported internally and/or externally following a tiered use of available channels; or in cases where reporting persons have valid reasons to believe that there is collusion between the perpetrator of the breach and the competent authority is reasonably suspected , that evidence may be concealed or destroyed, or that the effectiveness of investigative actions by competent authorities might be jeopardised; or in cases of imminent and manifest danger for the public interest, or where there is a risk of irreversible damage, including, inter alia, harm to physical integrity.

2018/09/18
Committee: LIBE

Proposal for a directive
Recital 71

(71) Beyond an explicit prohibition of retaliation provided in law, it is crucial that reporting persons who do suffer retaliation have access to legal remedies. The appropriate remedy in each case will be determined by the kind of retaliation suffered. It may take the form of actions for reinstatement (for instance, in case of dismissal, transfer or demotion, or of withholding of training or promotion) or for restauration of a cancelled permit, licence or contract; compensation for actual and future financial losses (for lost past wages, but also for future loss of income, costs linked to a change of occupation); compensation for other economic damage such as legal expenses and costs of medical and psychological treatment, and for intangible damage (pain and suffering).

2018/09/18
Committee: LIBE

Proposal for a directive
Recital 84

(84) The objective of this Directive, namely to strengthen enforcement in certain policy areas and acts where misconduct or wrongdoing or 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.

2018/09/18
Committee: LIBE

Proposal for a directive
Article 1 – paragraph 1 – introductory part

1. With a view to enhancing the enforcement of Union as well as national law and policies in specific areas, this Directive lays down common minimum standards for the protection of persons reporting on ~~the following~~misconduct of public interest, unlawful activities or abuse of law:

2018/09/18
Committee: LIBE

Proposal for a directive
Article 1 – paragraph 1 – point a

a) breaches falling within the scope of the Union acts set out in the Annex (Part I and Part II) as regards the following areas: (i) public procurement; (ii) financial services, prevention of money laundering and terrorist financing; (iii) product safety; (iv) transport safety; (v) protection of the environment; (vi) nuclear safety; (vii) food and feed safety, animal health and welfare; (viii) public health; (ix) consumer protection; (x) protection of privacy and personal data, and security of network and information systems.deleted

2018/09/18
Committee: LIBE

Proposal for a directive
Article 2 – paragraph 1 – point a

a) persons having or have had the status of worker, with the meaning of Article 45 TFEU, including persons having the status of civil servants;

2018/09/18
Committee: LIBE

Proposal for a directive
Article 2 – paragraph 1 – subparagraph 1 (new)

e) persons who are or were in contact with organisations.

2018/09/18
Committee: LIBE

Proposal for a directive
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;

2018/09/18
Committee: LIBE

Proposal for a directive
Article 5 – paragraph 1 – point e

e) clear, transparent and easily accessible information regarding the procedures and information on how and under what conditions reports can be made externally to competent authorities pursuant to Article 13(2) and, where relevant, to bodies, offices or agencies of the Union.

2018/09/18
Committee: LIBE

Proposal for a directive
Article 6 – paragraph 1

1. Member States shall designate the authorities competent to receive and handle reports. This includes designating specific, independent competent authorities entitled to receive and proceed reports on classified or sensitive information.

2018/09/18
Committee: LIBE

Proposal for a directive
Article 6 – paragraph 2 – point a

a) establish independent and autonomous external reporting channels, which are ~~both~~ secure ~~and~~, ensure confidentiality and allow for anonymous disclosures, for receiving and ~~handl~~processing information provided by the reporting person;

2018/09/18
Committee: LIBE

Proposal for a directive
Article 6 – paragraph 2 – point c

c) transmit, while further ensuring confidentiality and/or anonymity of the reporting person, the information contained in the report to competent bodies, offices or agencies of the Union, as appropriate, for further investigation, where provided for under national or Union law.

2018/09/18
Committee: LIBE

Proposal for a directive
Article 7 – title

7 ~~Design~~Structure and functioning of external reporting channels

2018/09/18
Committee: LIBE

Proposal for a directive
Article 9 – paragraph 1 – point c

c) the confidentiality ~~regime~~measures applicable to reports, including a detailed description of the circumstances under which the confidential data of a reporting person may be disclosed.

2018/09/18
Committee: LIBE

Proposal for a directive
Article 9 – paragraph 2

2. The detailed description referred to in point (c) of paragraph 1 shall include the exceptional cases in which confidentiality of personal data may ~~not be ensur~~be breached, including where the disclosure of data is a necessary and proportionate obligation required under Union or national law in the context of investigations or subsequent judicial proceedings or to safeguard the freedoms of others including the right of defence ~~of the concerned person~~, and in each case subject to appropriate safeguards under such laws.

2018/09/18
Committee: LIBE

Proposal for a directive
Article 11 – paragraph 1

1. Member States shall ensure that competent authorities keep records of every report received. The reports will be stored only for as long as it is deemed necessary and proportionate after which they will be deleted.

2018/09/18
Committee: LIBE

Proposal for a directive
Article 13 – paragraph 4 – introductory part

4. A person publicly disclosing information on breaches falling within the scope of this Directive shall qualify for protection under this Directive where one of the following conditions is fulfilled:

2018/09/18
Committee: LIBE

Proposal for a directive
Article 13 – paragraph 4 – introductory part

4. A person making a publicly disclos~~ing information~~ure on breaches falling within the scope of this Directive shall qualify for protection under this Directive where any of the following are met:

2018/09/18
Committee: LIBE

Proposal for a directive
Article 13 – paragraph 4 – point b

b) he or she could not reasonably be expected to use internal and/or external reporting channels due to imminent or manifest danger for the public interest, urgent threat to public health, safety or the environment or to the particular circumstances of the case, or where there is a risk of irreversible damage.;

2018/09/18
Committee: LIBE

Proposal for a directive
Article 13 – paragraph 4 – point b

b) he or she could not reasonably be expected to use internal and/or external reporting channels due to ~~imminent or manifest danger for the public interest,~~a risk of collusion or cover-up or to the particular circumstances of the case, or where there is a risk of ~~irreversible~~significant damage.

2018/09/18
Committee: LIBE

Proposal for a directive
Article 13 – paragraph 4 – point b a (new)

b a) internal or external reporting channels were not available for the reporting person or the reporting person could not reasonably be expected to be aware of the availability of such channels;

2018/09/18
Committee: LIBE

Proposal for a directive
Article 13 – paragraph 4 – subparagraph 1 (new)

c) where the public has an overriding interest in being informed directly.

2018/09/18
Committee: LIBE

Proposal for a directive
Article 13 – paragraph 4 – point b b (new)

b b) he or she could not reasonably be expected to use internal or external reporting channels in light of the subject- matter of the report;

2018/09/18
Committee: LIBE

Proposal for a directive
Article 13 – paragraph 4 – point b c (new)

b c) he or she had reasonable grounds to believe that the use of internal and external reporting channels could jeopardise the effectiveness of investigative actions by competent authorities.

2018/09/18
Committee: LIBE

Proposal for a directive
Article 14 – paragraph 1 – point g

g) coercion, intimidation, harassment or ostracism ~~at the workplace~~;

2018/09/18
Committee: LIBE

Proposal for a directive
Article 14 – paragraph 1 – point n a (new)

n a) legal actions aimed to shut down critical speech by intimidating critics into silence and draining their resources.

2018/09/18
Committee: LIBE