30 Amendments of António MARINHO E PINTO related to 2018/0106(COD)
Amendment 77 #
Proposal for a directive
Recital 1 a (new)
Recital 1 a (new)
(1a) The present Directive aims at enhancing the exercise of freedom of expression and the freedom of the media enshrined in Article 11 of the Charter of Fundamental Rights of the European Union by setting up protection measures for persons reporting breaches of EU law. It should be highlighted that these freedoms are the cornerstone of the investigative journalism and the principle of the confidentiality of sources of information.
Amendment 126 #
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 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 persons whose work-based relationship ended, 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 130 #
Proposal for a directive
Recital 28
Recital 28
(28) Effective whistleblower protection implies protecting also further categories of persons who, whilst not relying on their work-related activities economically, may nevertheless suffer retaliation for exposing breaches. Retaliation against volunteers and paid or unpaid trainees may take the form of no longer making use of their services, or of giving a negative reference for future employment or otherwise damaging their reputation.
Amendment 131 #
Proposal for a directive
Recital 28 a (new)
Recital 28 a (new)
(28a) Persons who facilitate the reporting and investigative journalists could play a crucial role in exposing breaches of EU law and potentially suffer from retaliation measures. Therefore, they should also be entitled to enjoy the protection measures provided for in this Directive.
Amendment 139 #
Proposal for a directive
Recital 30
Recital 30
(30) Effective prevention of breaches of Union 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 well-grounded 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.
Amendment 141 #
Proposal for a directive
Recital 30 a (new)
Recital 30 a (new)
(30a) However, in order to prevent unjustified reputational damages a clear distinction should also be made between deliberate false accusations, intended to harm the reported person or entity, and the reporting of information for which the person had reasonable grounds to believe that it was true. The Directive is without prejudice to national laws applicable in the first case, such as defamation.
Amendment 153 #
Proposal for a directive
Recital 34 a (new)
Recital 34 a (new)
(34a) The designated competent authorities should provide accurate information and appropriate advice to any person, reporting or reported, requesting such an information or advice for example on the protection measures, the appropriateness of the reporting channels and the scope of the Directive.
Amendment 174 #
Proposal for a directive
Recital 52
Recital 52
(52) In order to allow for effective communication with their dedicated staff, it is necessary that the competent authorities have in place and use specific channels, separate from their normal public complaints systems, that should be user- friendly, confidential and allow for written and oral, as well as electronic and non- electronic reporting.
Amendment 175 #
Proposal for a directive
Recital 53
Recital 53
(53) Dedicated staff members of the competent authorities, who are professionally trained, including on applicable data protection rules, would be necessary in order to handle reports and to ensure communication with the reporting person, as well as following up on the report in a suitable manner, as well as to provide information and advice to any interested person.
Amendment 189 #
Proposal for a directive
Recital 62
Recital 62
(62) As a rule, reporting persons should first use the internal and/or external 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 and/or to the competent authority. Moreover, protection is also to be granted in cases where Union legislation allows for the reporting person to report directly to the 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 bareach of law despite the positive results of the enquiry)financial services.
Amendment 192 #
Proposal for a directive
Recital 63
Recital 63
Amendment 193 #
Proposal for a directive
Recital 64
Recital 64
(64) Persons making a public disclosure directly should also qualify for protection 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.
Amendment 198 #
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, notably through the competent authorities, 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 199 #
Proposal for a directive
Recital 69
Recital 69
(69) It should not be possible to waive the rights and obligations established by this Directive by contractual means. Individuals’ legal or contractual obligations, such as loyalty clauses in contracts or confidentiality/non-disclosure agreements, cannot be relied on to preclude workers from reporting, to deny protection or to penalise them for having done so. At the same time, this Directive should not affect the protection of legal and other professional privilege, such as professional or medical secrecy, as provided for under national law.
Amendment 202 #
Proposal for a directive
Recital 72
Recital 72
(72) The types of legal action may vary between legal systems but they should ensure as full and effective a remedy as possible. Remedies should not discourage potential future whistleblowers. For instance, allowing for compensation as an alternative to reinstatement in case of dismissal might give rise to a systematic practice in particular by larger organisations, thus having a dissuasive effect on future whistleblowers.
Amendment 262 #
Proposal for a directive
Article 2 – paragraph 1 – point c
Article 2 – paragraph 1 – point c
(c) shareholders and persons belonging to the management body of an undertaking, including non-executive members, as well as volunteers and paid or unpaid trainees;
Amendment 274 #
Proposal for a directive
Article 2 – paragraph 2
Article 2 – paragraph 2
2. This Directive shall also apply to reporting persons whose work-based relationship has ended or is yet to begin in cases where information concerning a breach has been acquired during the recruitment process or other pre- contractual negotiation.
Amendment 281 #
Proposal for a directive
Article 2 a (new)
Article 2 a (new)
Article 2a Journalists and persons facilitating the reporting This Directive shall apply to persons facilitating the reporting and to investigative journalists.
Amendment 293 #
Proposal for a directive
Article 3 – paragraph 1 – point 3
Article 3 – paragraph 1 – point 3
(3) ‘abuse of law’ means acts or omissions falling within the scope of Union law which do not appear to be unlawful in formal terms but defeat the object or the purpose pursued by the applicable rules and which represent a risk of serious harm to the public interest;
Amendment 305 #
Proposal for a directive
Article 3 – paragraph 1 – point 10
Article 3 – paragraph 1 – point 10
(10) ‘work-related context’ means current or past work activities in the public or private sector through which, irrespective of their nature, persons may acquire information on breaches and within which these persons may suffer retaliation if they report them.
Amendment 311 #
Proposal for a directive
Article 3 – paragraph 1 – point 12
Article 3 – paragraph 1 – point 12
(12) ‘retaliation’ means any threatened or actual act or omission prompted by the internal or external reporting or by the public disclosure which occurs in a work- related context and causes or may cause unjustified detriment to the reporting person;
Amendment 386 #
Proposal for a directive
Article 6 a (new)
Article 6 a (new)
Article 6 a Obligation to provide information The designated competent authorities shall provide clear information about the appropriate reporting channels and the scope of the Directive to any person requesting such an advice.
Amendment 397 #
Proposal for a directive
Article 8 – paragraph 2 – point a
Article 8 – paragraph 2 – point a
a) providing any interested person with information on the procedures for reporting in accordance with Article 6a;
Amendment 408 #
Proposal for a directive
Article 10 – paragraph 1 – point g
Article 10 – paragraph 1 – point g
g) a statement clearly explaining that persons 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. , except if they are knowingly reporting wrong information or acting in breach of Directive(EU) 2016/943 of the European Parliament and of the Council of 8 June 2016 on the protection of undisclosed know-how and business information (trade secrets)against their unlawful acquisition, use and disclosure.
Amendment 429 #
Proposal for a directive
Article 13 – paragraph 1
Article 13 – paragraph 1
1. A person reporting personinternally or/and externally 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.
Amendment 433 #
Proposal for a directive
Article 13 – paragraph 2
Article 13 – paragraph 2
Amendment 447 #
Proposal for a directive
Article 13 – paragraph 3
Article 13 – paragraph 3
3. A person reporting to relevant bodies, offices or agencies of the Union on breaches falling within the scope of this Directive shall qualify for protection as laid down in this Directive under the same conditions as a person who reported externally in accordance with the conditions set out in paragraph 2.
Amendment 455 #
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 486 #
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 may provide for further measures of legal and financial assistance and support, including psychological, 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 504 #
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 knowingly wrong, including measures for compensating persons who have suffered damage from malicious or abusive reports or disclosures.