23 Amendments of Daniel BUDA related to 2018/0106(COD)
Amendment 71 #
Proposal for a directive
Recital 1
Recital 1
(1) Persons who work for an public or private organisation or are in contact with it in the context of their work-related activities are often the first to know about illegal activities or inadmissible practices that could result in threats or even 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 inactions harmful to the public interest, as well as safeguarding the welfare of society as a whole. However, potential whistleblowers are often discouraged from reporting their concerns or suspicions for fear of retaliation. In this connection, the importance of providing balanced and effective whistleblower protection in order to safeguard the public interest is increasingly acknowledged both at European and international level.
Amendment 86 #
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. 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. The absence of adequate and balanced protection for potential informants results in inadequate disclosure, making it impossible to prevent infringements of Union law, which could prove highly detrimental to the general interest.
Amendment 90 #
Proposal for a directive
Recital 5
Recital 5
(5) Accordingly, common minimum standards ensuring effective and balanced whistleblower protection should apply in those acts and policy areas where i) there is a need to strengthenthat have a manifest European dimension where i) there is a need to strengthen enforcement; there is a need to enhance 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 95 #
Proposal for a directive
Recital 5 a (new)
Recital 5 a (new)
(5a) Furthermore, the establishment of a set of common minimum standards at Union level for the protection of whistleblowers should ensure a balanced approach between, on the one hand, freedom of expression and information (enshrined in Article 11 of the Charter of Fundamental Rights of the European Union) and, on the other hand, guaranteed presumption of innocence and the right of defence (Article 48 of the Charter), focusing on the importance of guaranteed right to privacy and protection of personal data of both whistleblowers and those targeted in the reports.
Amendment 109 #
Proposal for a directive
Recital 19
Recital 19
(19) Each time a new Union act for which whistleblower protection is relevant and can contribute toessential and can have a major impact in terms of more effective enforcement is adopted, consideration should be given to whether to amend the Annex to the present Directive in order to place it under its scope.
Amendment 118 #
Proposal for a directive
Recital 24
Recital 24
(24) Persons acting in good faith and from selfless motives 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 121 #
Proposal for a directive
Recital 25
Recital 25
(25) EMore effective enforcement of Union law requires that protection is granted to the broadest possible range of categories of persons acting in good faith, 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 acting in good faith connected in a broad sense to the organisation where the breach has occurred.
Amendment 124 #
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 and fixed-term contract workers, as well as persons with a contract of employment or employment relationship with a temporary agency and those in precarious employment or with cross- border status, 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 137 #
Proposal for a directive
Recital 30
Recital 30
(30) Effective prevention of breaches of Union law requires that adequate and balanced protection is also granted to persons acting in good faith and for selfless motives who provide information about potential breaches, which have not yet materialised, but are likely to be committed and could be detrimental to the general interest. For the same reasons, protection is, under certain conditions, warranted also for persons who do not provide sufficient positive evidence but raise reasonable concerns or suspicions. At the same timeHowever, protection should not apply to the reporting of information which is already in the public domain or of unsubstantiated rumours and hearsay.
Amendment 146 #
Proposal for a directive
Recital 32
Recital 32
(32) Protection from retaliation as a means of safeguarding freedom of expression and media freedom should be provided both to persons acting in good faith who report information about acts or omissions within an organisation (internal reporting) or to an outside authority (external reporting) and to persons who, in compliance with the provisions of this directive, disclose such information to the public domain (for instance, directly to the public via web platforms or social media, or to the media, elected officials, civil society organisations, trade unions or professional/business organisations).
Amendment 150 #
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 and proportionate 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 that is proportional to the gravity of the reported offence in accordance with their mandate and their statutory terms of reference. The Commission shall encourage cooperation and exchanges of good practice between the Member State authorities with a view to ensuring proper and balanced implementation of the uniform whistleblower protection rules.
Amendment 156 #
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 and proportionate internal procedures for receiving and following-up on reportsgoverned by the principles of independence and impartiality for receiving and following-up on reports. Measures taken under these internal procedures shall provide adequate guarantees regarding confidentiality, data protection and privacy.
Amendment 182 #
Proposal for a directive
Recital 60
Recital 60
(60) To enjoy protection, the reporting persons should be acting in good faith and for selfless motives. In other words, they 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 and may indeed be held accountable under the national laws of the Member States. At the same time, it ensures that protection is not lost where the reporting person made an inaccurate report in honest error. 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.
Amendment 249 #
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 good faith and for selfless motives working in the private or public sector who acquired information on breaches in a work-related context including, at least, the following:
Amendment 272 #
Proposal for a directive
Article 2 – paragraph 2
Article 2 – paragraph 2
2. This Directive shall also apply to reporting persons acting in good faith and for selfless motives 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.
Amendment 282 #
Proposal for a directive
Article 3 – paragraph 1 – point 1
Article 3 – paragraph 1 – point 1
(1) ‘breaches’ means actual or potential unlawful 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 that could be seriously detrimental to the public interest;
Amendment 310 #
Proposal for a directive
Article 3 – paragraph 1 – point 12
Article 3 – paragraph 1 – point 12
(12) ‘retaliation’ means any threatened or actual, direct or indirect act or omission, prompted by the internal or, external reporting or by disclosure, which occurs in a work-related context and causes or may cause unjustified detriment to the reporting person;
Amendment 353 #
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 the identity of the concerned person and prevents access to non-authorised staff members; .
Amendment 354 #
Proposal for a directive
Article 5 – paragraph 1 – point b
Article 5 – paragraph 1 – point b
b) the designation of a person or department competent and impartial for following up on the reports;
Amendment 368 #
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, provided that impartiality and confidentiality safeguards are maintained. Additional persons may be designated as “trusted persons” from whom reporting persons and those considering reporting may seek confidential advice.
Amendment 409 #
Proposal for a directive
Article 10 – paragraph 1 – point g
Article 10 – paragraph 1 – point g
g) a statement clearly explaining that personsbona fide persons, disinterestedly 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.
Amendment 415 #
Proposal for a directive
Article 11 – paragraph 1
Article 11 – paragraph 1
1. Member States shall ensure that competent authorities keep records of every report received, in compliance with all the rules regarding confidentiality and personal data protection.
Amendment 492 #
Proposal for a directive
Article 16 – paragraph 3 a (new)
Article 16 – paragraph 3 a (new)
3a. Pursuant to national law, concerned persons who suffer prejudice, whether directly or indirectly, as a consequence of the reporting or disclosure of misleading or inaccurate information can turn against the persons making malicious or abusive reports or disclosures, with all the consequences arising from application of the national law.