27 Amendments of Tomáš ZDECHOVSKÝ related to 2018/0106(COD)
Amendment 40 #
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. 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 whistle blowers are often discouraged from reporting their concerns or suspicions for fear of retaliation. in case they expose irregularities, mismanagement, misuse of funds, maladministration or potential corruption related to the activity of public and private bodies within the Union; they are not truly protected and do not feel protected; this is why many of them use other means to reveal the wrongdoing or even refrain from acting;
Amendment 46 #
Proposal for a directive
Recital 2
Recital 2
(2) At Union level, reports by whistleblowers and investigative journalists are one upstream component of enforcement of Union law: they feed national and Union enforcement systems with information leading to effective detection, investigation and prosecution of breaches of Union law.
Amendment 52 #
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; moreover, there is a lack of follow-up and proper settlement regarding whistle-blowing cases across Member States as well as within the European institutions. The consequences of breaches of Union law with cross-border dimension uncovered by whistleblowers illustrate how insufficient protection in one Member State or within the European bodies 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.
Amendment 61 #
Proposal for a directive
Recital 16
Recital 16
(16) The protection of the financial interests of the Union, which relates to the fight against fraud, corruption and any other illegal activity affecting the use of Union expenditures, the collection of Union revenues and funds or Union assets, is a core area in which enforcement of Union law needs to be strengthened. The strengthening of the protection of the financial interests of the Union also encompasses implementation of the Union budget related to expenditures made on the basis of the Treaty establishing the European Atomic Energy Community. Lack of effective enforcement in the area of the financial interests of the Union, including fraud and corruption at national level, causes a decrease of the Union revenues and a misuse of EU funds, which can distort public investments and growth and undermine citizens’ trust in EU action. Whistleblower protection isInvestigative journalists also play a crucial role in revealing wrongdoing connected to all these areas; they represent a very exposed group of professionals, often paying with their jobs, freedom and even with their lives disclosure of massive irregularities and corruption schemes; therefore, special measures to protect investigative journalists should be included in a horizontal legislative proposal for the protection of whistle-blowers. Investigative journalism and whistleblower protection are necessary to facilitate the detection, prevention and deterrence of relevant fraud and illegal activities.
Amendment 81 #
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 or other type of 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 investigative journalists who acquired and published information on corruption schemes, money laundering, fraud, misuse of public money, abuse of office and other irregularities; the same protection should apply 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 93 #
Proposal for a directive
Recital 13
Recital 13
(13) In the same vein, whistleblowers’ reports can be key to detecting and preventing, reducing or eliminating risks to public health and to consumer protection resulting from breaches of Union rules which might otherwise remain hidden. In particular, consumer protection is also strongly linked to cases where unsafe products can cause considerable harm to consumers, e.g. odometer fraud. Whistleblower protection should therefore be introduced in relation to relevant Union rules adopted pursuant to Articles 114, 168 and 169 TFEU.
Amendment 95 #
Proposal for a directive
Recital 19
Recital 19
(19) Each time a new Union act for which whistleblower protection is relevant and which can contribute to 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 98 #
Proposal for a directive
Recital 33
Recital 33
(33) Whistleblowers are, in particular, important sources for investigative journalists. Providing effective protection to whistleblowers from retaliationas well as to investigative journalists from retaliation and any form of harassment 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 in democratic societies.
Amendment 103 #
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, interns, 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 107 #
Proposal for a directive
Recital 42
Recital 42
(42) Provided the 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 confidentiality of the identity of the reporting person; anonymous reporting should be taken into consideration and protection of initially anonymous whistle-blowers should be put in place, in cases where such protection is required.
Amendment 111 #
Proposal for a directive
Recital 40
Recital 40
(40) It should be clear that, in the case of private legal entities which do not provide forithout appropriate internal reporting channels, reporting persons shouldmust be able to report directly externally to the competent authorities and such persons should enjoy the protection against retaliation provided by this Directive.
Amendment 121 #
Proposal for a directive
Recital 58
Recital 58
(58) Protection of personal data of the reporting and concerned person is crucial in order to avoid unfair treatment or reputational damages due to disclosure of personal data, in particular data revealing the identity of a person concerned. Hence, in line with the requirements of Regulation (EU) 2016/679 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data (General Data Protection Regulation, hereinafter also referred to as 'GDPR'), competent authorities and relevant bodies, offices or agencies of the Union should establish adequate data protection procedures specifically geared to the protection of the reporting person, the concerned person and any third person referred to in the report that should include a secure system within the competent authority with restricted access rights for authorised staff only.
Amendment 128 #
Proposal for a directive
Recital 62
Recital 62
(62) As a rule, rReporting 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)., or where there is a substantiated belief that the use of internal channels might hinder the reporting;
Amendment 130 #
Proposal for a directive
Recital 63
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; where they believe the internal channels lack independence; that their confidentiality would not be protected; 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. 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.
Amendment 135 #
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 and relevant bodies, offices or agencies of the Union should ensure that relevant information is provided in a user-friendly way and is easily accessible to the general public. 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 136 #
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. 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 anonymously 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 147 #
Proposal for a directive
Article 1 – paragraph 1 – point a – point ii
Article 1 – paragraph 1 – point a – point ii
(ii) financial services, prevention of tax evasion, money laundering and, terrorist financing; and financing of organized crime;
Amendment 177 #
Proposal for a directive
Article 5 – paragraph 1 – point a
Article 5 – paragraph 1 – point a
(a) independent 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;
Amendment 178 #
Proposal for a directive
Article 5 – paragraph 1 – point b
Article 5 – paragraph 1 – point b
(b) the designation of a specifically trained person or department competent for following up on the reports;
Amendment 274 #
Proposal for a directive
Article 7 – paragraph 3
Article 7 – paragraph 3
3. Competent authorities shall ensure that a report received by means other than dedicated reporting channels referred to in paragraphs 1 and 2 is promptly forwarded without modification to the dedicated staff members of the competent authority by using dedicated communication channels. Anonymous reporting shall be taken into account.
Amendment 324 #
Proposal for a directive
Article 13 – paragraph 4 – introductory part
Article 13 – paragraph 4 – introductory part
4. A person publicly disclosing information on breaches falling within the scope of this Directive, including investigative journalists, shall qualify for protection under this Directive where:
Amendment 339 #
Proposal for a directive
Article 14 – title
Article 14 – title
14 Prohibition of retaliation against reporting persons and investigative journalists
Amendment 342 #
Proposal for a directive
Article 14 – paragraph 1 – point g
Article 14 – paragraph 1 – point g
g) coercion, intimidation, harassment or ostracism at the workplace, in public or private life;
Amendment 348 #
Proposal for a directive
Article 14 – paragraph 1 – point k a (new)
Article 14 – paragraph 1 – point k a (new)
k a) abusive suing and disproportionate financial claims;
Amendment 363 #
Proposal for a directive
Article 15 – paragraph 8
Article 15 – paragraph 8
8. In addition to providing legal aid to reporting persons in criminal and in cross- border civil proceedings in accordance with Directive (EU) 2016/1919 and Directive 2008/52/EC of the European Parliament and of the Council63 , and in accordance with national law, Member States mayshall provide for further measures of legal and financial assistance and support for reporting persons in the framework of legal proceedings. _________________ 63 Directive 2008/52/EC of the European Parliament and of the Council of 21 May 2008 on certain aspects of mediation in civil and commercial matters (OJ L 136, 24.5.2008, p. 3).
Amendment 371 #
Proposal for a directive
Article 17 – paragraph 1 – point b
Article 17 – paragraph 1 – point b
b) take retaliatory measures against reporting persons or investigative journalists revealing wrondoing;
Amendment 372 #
Proposal for a directive
Article 17 – paragraph 1 – point c
Article 17 – paragraph 1 – point c
c) bring vexatious proceedings against reporting persons or investigative journalists revealing wrongdoing;