Activities of Jean LAMBERT related to 2018/0106(COD)
Shadow opinions (1)
OPINION on the proposal for a directive of the European Parliament and of the Council on the protection of persons reporting on breaches of Union law
Amendments (64)
Amendment 19 #
Proposal for a directive
Citation 1
Citation 1
Having regard to the Treaty on the Functioning of the European Union, and in particular Articles 16, 33, 43, 50, 53(1), 62, 91, 100, 103, 109, 114, 153, 157, 168, 169, 192, 207 and 325(4) thereof and to the Treaty establishing the European Atomic Energy Community, and in particular Article 31 thereof,
Amendment 23 #
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. The purpose of this Directive is to create a climate of trust that enables whistleblowers to report observed or suspected breaches of law, as well as threats to the public interest. 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 25 #
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 introducingto ensure that there are effective reporting channels.
Amendment 31 #
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 32 #
Proposal for a directive
Recital 25
Recital 25
(25) Effective enforcement of Union law requires that protection is 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 ofall persons connected in a broad sense to the organisation where the breach has occurredto the report..
Amendment 35 #
Proposal for a directive
Recital 30 a (new)
Recital 30 a (new)
(30a) Protection should be given to individuals working at institutions within the Union, but also to individuals working in European entities located outside Union territory. It should also apply to officials as well as other employees and interns working at the institutions, agencies and bodies of the Union.
Amendment 46 #
Proposal for a directive
Recital 42
Recital 42
(42) Provided the anonymity or confidentiality 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 anonymity nor confidentiality of the identity of the reporting person.
Amendment 48 #
Proposal for a directive
Recital 43
Recital 43
(43) Third parties may also be authorised to receive reports on behalf of private and public entities, provided they offer appropriate guarantees of respect for independence, confidentiality, the possibility for anonymity data protection and secrecy. These can be external reporting platform providers, external counsel or auditors or trade union representatives.
Amendment 49 #
Proposal for a directive
Recital 44
Recital 44
(44) Internal reporting procedures should enable private legal entities to receive and investigate in full confidentiality and with respect of anonymity if appropriate reports by the employees of the entity and of its subsidiaries or affiliates (the group), but also, to any extent possible, by any of the group’s agents and suppliers and by any person who acquires information through his/her work-related activities with the entity and the group.
Amendment 52 #
Proposal for a directive
Recital 47
Recital 47
(47) Persons who are considering reporting breaches of Union law should be able to make an informed decision on whether, how and when to report. Private and public entities having in place internal reporting procedures shall provide information on these procedures as well as on procedures to report externally to relevant competent authorities. They should also provide information on rights guaranteed to whistleblowers, particularly their right to disclosure guaranteed by this Directive, and their right to turn to civil society organisations involved in whistleblower protection to this end, in particular those who provide strategic and legal advice to whistleblowers. Such information must be easily understandable and easily accessible, including, to any extent possible, also to other persons, beyond employees, who come in contact with the entity through their work-related activities, such as service-providers, distributors, suppliers and business partners. For instance, such information may be posted at a visible location accessible to all these persons and to the web of the entity and may also be included in courses and trainings on ethics and integrity.
Amendment 53 #
Proposal for a directive
Recital 48 a (new)
Recital 48 a (new)
(48a) In all cases, the reporting person should be informed of the investigation’s progress and should be able to access the draft report at least once so as to be able to revise it, comment on it and correct it if necessary, albeit with no obligation to do so. These comments must be incorporated and taken into account in the monitoring of the investigation. The reporting person should be informed of the investigation's outcome and should be able to revise and comment on the final report of the investigation. These comments must be included in the final report.
Amendment 58 #
Proposal for a directive
Recital 59
Recital 59
(59) The regular review of the procedures of competent authorities and the exchange of good practices between them and competent civil society organisations should guarantee that those procedures are adequate and thus serving their purpose.
Amendment 59 #
Proposal for a directive
Recital 61
Recital 61
(61) The requirement of a tiered use of reporting channels, as a general rule, is 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 exceptions to its application are necessary, allowing the reporting person to choose the most appropriate channel depending on the individual circumstances of the case. Moreover, iIt 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 One of the criteria for determining 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.
Amendment 60 #
Proposal for a directive
Recital 62
Recital 62
Amendment 61 #
Proposal for a directive
Recital 63
Recital 63
Amendment 63 #
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. Protection against retaliation should also be granted to natural or legal persons closely linked to the reporting person, irrespective of the nature of the activities, and whether they are paid or not. 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 who have provided support to the reporting person.
Amendment 64 #
Proposal for a directive
Recital 67
Recital 67
(67) Potential whistleblowers who are not sure about how to report or whether they will be protected in the end may be discouraged from reporting. Member States should ensure that relevant information is provided in a user-friendly way and is easily accessible to the general public and support the work of civil society organisations providing this information. Individual, impartial and confidential advice, free of charge, should be available on, for example, whether the information in question is covered by the applicable rules on whistleblower protection, which reporting channel may best be used and which alternative procedures are available in case the information is not covered by the applicable rules (‘signposting’). Access to such advice can help ensure that reports are made through the appropriate channels, in a responsible manner and that breaches and wrongdoings are detected in a timely manner or even prevented.
Amendment 65 #
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 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 75 #
Proposal for a directive
Article 1 – paragraph 1 – point a – introductory part
Article 1 – paragraph 1 – point a – introductory part
(a) breaches falling within the scope of the Union acts, and especially those set out in the Annex (Part I and Part II) as regards the following areas:
Amendment 77 #
Proposal for a directive
Article 1 – paragraph 1 – point a – point x a (new)
Article 1 – paragraph 1 – point a – point x a (new)
(xa) employment and working conditions
Amendment 84 #
Proposal for a directive
Article 2 – paragraph 1 – point a
Article 2 – paragraph 1 – point a
(a) persons having the status of worker or formal workers, with the meaning of Article 45 TFEU;
Amendment 90 #
Proposal for a directive
Article 2 – paragraph 2 a (new)
Article 2 – paragraph 2 a (new)
2a. Without prejudice to Articles 22a, 22b and 22c of Regulation No 31 (EEC), 11 (EAEC), this Directive shall also apply to the officials and the other servants of the European Union and the European Atomic Energy Community who report information on any of the breaches referred to in Article 1.
Amendment 95 #
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, who contributes, assists or aids to reveal or make public information on breaches as well as persons representing the reporting person and family and relatives of the reporting person;
Amendment 108 #
Proposal for a directive
Article 4 – paragraph 6 – point d a (new)
Article 4 – paragraph 6 – point d a (new)
(da) European Union institutions, agencies and bodies.
Amendment 109 #
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 members;. Recipients of disclosed information within the workplace shall include, but not be limited to:· – Line-managers, superiors or representatives of the organisation;· – Human resources, ethics officers, work councils or other bodies in charge of mediating· – conflicts at work, including conflicts of interest;· – Internal financial oversight bodies within the organisation; – Disciplinary bodies within the organisation.
Amendment 110 #
Proposal for a directive
Article 5 – paragraph 1 – point c
Article 5 – paragraph 1 – point c
(c) diligent follow up to the report by the designated person or department and appropriate and timely action if needed;
Amendment 111 #
Proposal for a directive
Article 5 – paragraph 1 – point d
Article 5 – paragraph 1 – point d
(d) a reasonable timeframe, not exceeding 30 days or three months following the reportin duly justified cases following the report with an acknowledgement of the receipt of report within 30 days, to provide feedback to the reporting person about the follow-up to the report;
Amendment 114 #
Proposal for a directive
Article 5 – paragraph 2 – subparagraph 1 – point b
Article 5 – paragraph 2 – subparagraph 1 – point b
(b) physical meetings with the person or department designated to receive reports accompanied, if the reporting person requests it, by a union representative and/or by a representative of civil society and/or his/her legal representative.
Amendment 118 #
Proposal for a directive
Article 5 – paragraph 3 a (new)
Article 5 – paragraph 3 a (new)
3a. Member States shall ensure the protection of report to an employer other than his or her direct employer where there are multiple organisations or employers involved and the worker reasonably believes the information relates solely or mainly to the conduct of that person or organisation, or is a matter for which that person or organisation has legal responsibility. Any such disclosure shall be treated as internal reporting.
Amendment 121 #
Proposal for a directive
Article 6 – paragraph 2 – point b
Article 6 – paragraph 2 – point b
(b) give feedback to the reporting person about the follow-up of the report within a reasonable timeframe not exceeding threewo months or sixfour months in duly justified cases;
Amendment 122 #
Proposal for a directive
Article 6 – paragraph 2 – point b a (new)
Article 6 – paragraph 2 – point b a (new)
(ba) gives the reporting person the opportunity, without compelling him/her, to look over, examine and comment on the draft report over the course of the investigation, and the final report before it is published at the end of the investigation and, where relevant, take his/her comments into account;
Amendment 124 #
Proposal for a directive
Article 7 – paragraph 1 – point c a (new)
Article 7 – paragraph 1 – point c a (new)
(ca) guarantee free and independent advice and legal support for reporting persons and intermediaries.
Amendment 126 #
Proposal for a directive
Article 7 – paragraph 2 – point c
Article 7 – paragraph 2 – point c
(c) physical meeting with dedicated staff members of the competent authority accompanied, if the reporting person requests it, by a union representative and/or by a representative of civil society and/or his/her legal representative.
Amendment 130 #
Proposal for a directive
Article 9 – paragraph 1 – point b
Article 9 – paragraph 1 – point b
(b) a reasonable timeframe, not exceeding threewo months or sixfour months in duly justified cases, for giving feed-back to the reporting person about the follow-up of the report and the type and content of this feed-back;
Amendment 131 #
Proposal for a directive
Article 9 – paragraph 1 – point c a (new)
Article 9 – paragraph 1 – point c a (new)
(ca) giving the reporting person the opportunity, without compelling him/her, to look over, examine and comment on the draft report over the course of the investigation, and the final report before it is published at the end of the investigation and, where relevant, take his/her comments into account.
Amendment 135 #
Proposal for a directive
Article 10 – paragraph 1 – point g a (new)
Article 10 – paragraph 1 – point g a (new)
(ga) contact information of CSOs where legal advice can be obtained free of charge.
Amendment 139 #
Proposal for a directive
Article 13 – paragraph 1
Article 13 – paragraph 1
1. A reporting person shall qualify for protection under this Directive provided he or she has reasonable grounds to believe that the information reported was true at the time of reporting and that this information falls within the scope of this Directive and regardless of the reporting channel he or she chose.
Amendment 142 #
Proposal for a directive
Article 13 – paragraph 2 – introductory part
Article 13 – paragraph 2 – introductory part
2. A person reporting externallywho anonymously disclosed information that falls within the scope of this directive and whose identity was revealed shall also qualify for protection under this Ddirective where one of the following conditions is fulfilled :.
Amendment 144 #
Proposal for a directive
Article 13 – paragraph 2 – point a
Article 13 – paragraph 2 – point a
Amendment 145 #
Proposal for a directive
Article 13 – paragraph 2 – point b
Article 13 – paragraph 2 – point b
Amendment 146 #
Proposal for a directive
Article 13 – paragraph 2 – point c
Article 13 – paragraph 2 – point c
Amendment 148 #
Proposal for a directive
Article 13 – paragraph 2 – point d
Article 13 – paragraph 2 – point d
Amendment 150 #
Proposal for a directive
Article 13 – paragraph 2 – point e
Article 13 – paragraph 2 – point e
Amendment 152 #
Proposal for a directive
Article 13 – paragraph 2 – point f
Article 13 – paragraph 2 – point f
Amendment 156 #
Proposal for a directive
Article 13 – paragraph 3
Article 13 – paragraph 3
Amendment 160 #
Proposal for a directive
Article 13 – paragraph 4 – point a
Article 13 – paragraph 4 – point a
(a) he or she first reported internally and/or externally in accordance with Chapters II and III and paragraph 2 of this Article, but no appropriate action was taken in response to the report within the timeframe referred to in Articles 6(2)(b) and 9(1)(b); or
Amendment 161 #
Proposal for a directive
Article 13 – paragraph 4 – point b
Article 13 – paragraph 4 – point b
(b) he or she could not reasonably be expected to use internal and/or external reporting channels, due, for instance, to imminent or manifest danger for the public interest, or to the particular circumstances of the case, or where there is a risk of irreversible damage.
Amendment 175 #
Proposal for a directive
Article 14 – paragraph 1 – point n a (new)
Article 14 – paragraph 1 – point n a (new)
(na) mandatory psychiatric or medical referrals,
Amendment 177 #
Proposal for a directive
Article 14 – paragraph 1 – point n b (new)
Article 14 – paragraph 1 – point n b (new)
(nb) obstruction or cancellation of retirement benefits,
Amendment 178 #
Proposal for a directive
Article 14 – paragraph 1 – point n c (new)
Article 14 – paragraph 1 – point n c (new)
(nc) loss of benefits or status,
Amendment 179 #
Proposal for a directive
Article 14 – paragraph 1 – point n d (new)
Article 14 – paragraph 1 – point n d (new)
(nd) cancellation of duties,
Amendment 180 #
Proposal for a directive
Article 14 – paragraph 1 – point n e (new)
Article 14 – paragraph 1 – point n e (new)
(ne) suspension of revocation of security clearance,
Amendment 181 #
Proposal for a directive
Article 14 – paragraph 1 – point n f (new)
Article 14 – paragraph 1 – point n f (new)
(nf) retaliatory investigations,
Amendment 182 #
Proposal for a directive
Article 14 – paragraph 1 – point n g (new)
Article 14 – paragraph 1 – point n g (new)
(ng) failure by managers to make reasonable efforts to prevent retaliation,
Amendment 183 #
Proposal for a directive
Article 14 – paragraph 1 – point n h (new)
Article 14 – paragraph 1 – point n h (new)
(nh) initiation of retaliatory lawsuits or prosecutions.
Amendment 184 #
Proposal for a directive
Article 14 – paragraph 1 – point n i (new)
Article 14 – paragraph 1 – point n i (new)
(ni) wilful ignorance of the retaliation by a supervisor or supervisory body who are tasked with monitoring the protected person
Amendment 185 #
Proposal for a directive
Article 14 – paragraph 1 – point n j (new)
Article 14 – paragraph 1 – point n j (new)
(nj) breaching the confidentiality and anonymity of the reporting person and other persons protected by this Directive
Amendment 186 #
Proposal for a directive
Article 14 – paragraph 1 – point n k (new)
Article 14 – paragraph 1 – point n k (new)
(nk) denying the rights of defence, including excessive delays in the handling of cases within the place of work
Amendment 187 #
Proposal for a directive
Article 14 – paragraph 1 – point n l (new)
Article 14 – paragraph 1 – point n l (new)
(nl) and all other actions that could chill employees from exercise of rights protected by the Directive
Amendment 188 #
Proposal for a directive
Article 14 – paragraph 1 – point n m (new)
Article 14 – paragraph 1 – point n m (new)
(nm) furthermore, all recommendations for any of the retaliatory actions listed in this article.
Amendment 198 #
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 malicious or abusive reports or disclosures, including measures for compensating persons who have suffered damage from malicious or abusive reports or disclosures by retaining the protection and applying the rules of general law.
Amendment 200 #
Proposal for a directive
Article 17 a (new)
Article 17 a (new)
Article 17a No Waiver of Rights and Remedies The rights and remedies provided for under this Directive may not be waived or limited by any agreement, policy, form or condition of employment, including by any pre-dispute arbitration agreement. Any attempt to waive or limit these rights and remedies shall be considered void and unenforceable and may be subject to penalty or sanction.
Amendment 203 #
Proposal for a directive
Article 21 a (new)
Article 21 a (new)
Article 21a Updating the Annexes Whenever a new EU legal act falls into the material scope laid down in Article 1 (1) (a) or Article 1 (2), the Commission shall update the Annexes accordingly via a delegated act.
Amendment 205 #
Proposal for a directive
Annex I – part I – subpart J a (new)
Annex I – part I – subpart J a (new)