After Denmark, Sweden, Portugal, Malta, Cyprus, Latvia, Lithuania, Croatia and France, Ireland has now also implemented the necessary legislation. This also seemed to be the case in Romania. The President only had to sign the law. However, he did not do so; he sent it back to parliament. In the other EU Member States, including the Netherlands, the implementation is still in progress. Only in Hungary has the process not yet started.
A striking feature of the Irish legislation is its broad scope. Reporters of ‘relevant misconduct’ are protected. Labour disputes between the employer and employee do not fall within the scope of the law, unless there are abuses in the area of health and safety. The Labour Inspectorate monitors that organisations set up formal reporting procedures.
Employers who do not set up a reporting procedure are punishable. Disclosing the identity of a whistleblower is also a criminal offence, as is the obstruction of reporting. Fines can vary between EUR 75,000 and EUR 250,000 and in addition a prison sentence of up to two years can be imposed.
We in the Netherlands could learn something from this.
A number of provisions in the Act apply retroactively. We would not consider appropriate in the Netherlands.
In Romania, the new legislation also seemed to have been adopted. However, the Romanian president refused to sign the law and sent it back to parliament. The current version has been heavily criticised by NGOs and seems to violate the letter and spirit of the European directive. There is a risk that the EU will not pay out money from European funds because the directive has not yet been fully implemented.
For example, anonymous reporting is excluded from the law, as a result of which anonymous whistleblowers would not be protected. Now, whistleblowers who are anonymous do not need to be protected, as long as they remain anonymous. Problems only arise once the identity of the whistleblower is discovered. The EU directive leaves the handling of anonymous reports to the Member States, but it is intended that anonymous reporters should also be protected if their identity is revealed.
Furthermore, the principle that a whistleblower acts in good faith, previously laid down in a Romanian law from 2004, has been abandoned. It seems that this reduces the protection of whistleblowers, which is certainly not the intention of the European directive. Also, whistleblowers would have to report internally before being allowed to turn to the authorities. This is contradictory to the European directive. In the Netherlands, according to the current ‘House for Whistleblowers’ Act, whistleblowers must first report internally, but this principle has been abandoned as a result of the European Directive.
Furthermore, according to the draft law, whistleblowers in Romania had to wait three months after submitting their report before they could make any wrongdoing public. This too is contrary to the European Directive, which states that a whistleblower may disclose wrongdoing if he or she reasonably suspects that the chances of an effective response to the report are small. If a reporter has not heard anything about the issue after three months, this is certainly the case. However, it can also be the case earlier.
Earlier this year, The Integrity Coordinator spoke at a conference in Bucharest. There it struck us that there is still little mutual trust in Romanian society and a lot of fear for false whistleblower reports. This may still be the result of the period before the fall of the Berlin Wall in 1989, when the security service kept extensive records of the residents and encouraged people to spy on and tell on each other. However, this is certainly not the intention of the Whistleblower Protection Act. The President of Romania has now sent the law back to parliament. We are curious to see how this will progress.
The Integrity Coordinator has partner organisations in almost all EU countries. Do you have questions about the legislation in one of those countries? Or are you looking for an external integrity coordinator there? Contact us!