Activities of Barbara SPINELLI 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 (125)
Amendment 34 #
Proposal for a directive
Citation 1
Citation 1
Having regard to the Treaty on the Functioning of the European Union, and in particular Articles 9, 10, 11, 12, 15, 16, 33, 43, 50, 53(1), 62, 91, 100, 103, 109, 114, 168, 169, 192, 207, 325(4) and 3525(4) thereof and to the Treaty establishing the European Atomic Energy Community, and in particular Article 31 thereof,
Amendment 35 #
Proposal for a directive
Citation 6 a (new)
Citation 6 a (new)
Having regard to the Charter of Fundamental Rights of the European Union,
Amendment 36 #
Proposal for a directive
Citation 6 b (new)
Citation 6 b (new)
Having regard to the European Parliament resolution of 14 February 2017 on the role of whistleblowers in the protection of EU’s financial interests,
Amendment 37 #
Proposal for a directive
Citation 6 c (new)
Citation 6 c (new)
Having regard to the European Parliament resolution of 24 October 2017 on legitimate measures to protect whistle- blowers acting in the public interest when disclosing the confidential information of companies and public bodies,
Amendment 38 #
Proposal for a directive
Citation 6 d (new)
Citation 6 d (new)
Having regard to the European Convention on Human Rights,
Amendment 42 #
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 and in protecting the fundamental right to freedom of expression and information. However, potential whistleblowers are often discouraged from reporting their concerns or suspicions for fear of retaliation.
Amendment 48 #
Proposal for a directive
Recital 3
Recital 3
(3) In certain policy areas, bBreaches 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 and for the enjoyment of human rights and fundamental freedoms. Since whistleblowers are in a privileged position to disclose breaches, it is necessary to enhance enforcement by ensuringsure their effective protection of whistleblowers from retaliation and to introducinge effective and confidential reporting channels.
Amendment 55 #
Proposal for a directive
Recital 5
Recital 5
(5) Accordingly, common minimum standards ensuring effective whistleblower protection should apply in thoseto all EU acts and policy areas where i) there is a need to strengthen enforcement; ii) under- reporting by whistleblowers is a key factor affecting enforcement, and iii) breaches of Union law cause serious harm to the public interesta public interest may arise.
Amendment 64 #
Proposal for a directive
Recital 19
Recital 19
Amendment 68 #
Proposal for a directive
Recital 21
Recital 21
Amendment 71 #
Proposal for a directive
Recital 21 a (new)
Recital 21 a (new)
(21 a) Reporting persons who, in view of an overriding and compelling public interest, disclose information regarding national security and other classified information which Union law or the laws, regulations or administrative provisions in force in the Member State concerned require to be protected from unauthorised access for security reasons, should enjoy the mechanisms of protection provided for in this Directive.
Amendment 72 #
Proposal for a directive
Recital 22
Recital 22
(22) Persons who report information about threats or harm to the public interest obtained in the context of their work- related activities make use of their right to freedom of expression. The right to freedom of expression, enshrined in Article 11 of the Charter of Fundamental Rights of the European Union (‘the Charter’) and in Article 10 of the European Convention on Human Rights (ECHR), encompasses media freedom and pluralism.
Amendment 76 #
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 79 #
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-relatedtheir 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 connected in a broad sense to the organisation where the breach has occurred.
Amendment 82 #
Proposal for a directive
Recital 27
Recital 27
(27) Protection should also extend to people facilitating the reporting, intermediaries and investigative journalists, who disclose potential or occurred breach, as well as 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 also 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 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 83 #
Proposal for a directive
Recital 27 a (new)
Recital 27 a (new)
(27 a) Protection should also extend to people facilitating the reporting, intermediaries, investigative journalists, civil society organisations who, through their activities, guarantee the effective disclosure of the potential or occurred breach.
Amendment 84 #
Proposal for a directive
Recital 27 b (new)
Recital 27 b (new)
(27 b) Protection should also extend to any natural or legal person who is regularly or professionally engaged in the collection and dissemination of information to the public via any means of mass communication.
Amendment 86 #
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 or for supporting whistleblowers reporting. Retaliation against volunteers and 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 87 #
Proposal for a directive
Recital 28 a (new)
Recital 28 a (new)
(28 a) Protection should be also afforded to all individuals working within all the institutions, bodies and agencies of the Union as well as to individuals working in the European entities located outside the Union territory. European Union institutions, agencies and bodies should adopt and implement internal rules protecting whistleblowers in accordance with Articles 22a, 22b and 22c of Regulation No 31 (EEC), 11 (EAEC), (‘the Staff Regulations’).
Amendment 95 #
Proposal for a directive
Recital 31
Recital 31
(31) Retaliation expresses the close (cause and effect) relationship that must exist between the report and the adverse treatment suffered, directly or indirectly, by the reporting person, so that this person can enjoy legal protection. Effective protection of reporting persons as a means of enhancing the enforcement of Union law requires a broad definition of retaliation, encompassing any act or omission occurring in the work-related context which causes them detriment.
Amendment 97 #
Proposal for a directive
Recital 32 a (new)
Recital 32 a (new)
(32 a) Potential whistleblowers should be free to rely on the reporting channel of their choice, be it internal or external, or to decide to disclose information to the public domain, for example through the media, provided that the confidentiality and anonymity of their disclosure are fully safeguarded, that data protection is ensured and that the journalists, bloggers or media in general are never compelled to reveal the identity of their sources. Whistleblowers should be protected no matter what their choice of reporting channel is.
Amendment 102 #
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 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, with the possible assistance of law enforcement agencies. 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.
Amendment 103 #
Proposal for a directive
Recital 39 a (new)
Recital 39 a (new)
(39 a) Reporting persons should be allowed to freely choose the most appropriate channel of reporting and disclosure of information, be it internal or external, without any strict hierarchy among them.
Amendment 104 #
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 for internal reporting channels, rReporting persons should be able to report directly externally to the competent authorities and such persons should enjoy the protection against retaliation provided by this Directive.
Amendment 106 #
Proposal for a directive
Recital 41
Recital 41
(41) To ensure in particular, the respect of the public procurement rules in the public sector, the obligation to put in place internal reporting channels should apply to all public legal entities, at local, regional and, national level, whilst being commensurate with their sizeand EU level. In cases where internal channels are not provided in small public entities, Member States mayshould provide for internal reporting within a higher level in the administration (that is to say at regional or central level).
Amendment 110 #
Proposal for a directive
Recital 42
Recital 42
(42) Provided the confidentiality or anonymity 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.
Amendment 111 #
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, anonymity, data protection and secrecy. These can be media, external reporting platform providers, external counsel or auditors or trade union representatives.
Amendment 120 #
Proposal for a directive
Recital 50
Recital 50
(50) Follow up and feedback should take place within a reasonable timeframe; this is warranted by the need to promptly address the problem that may be the subject of the report, as well as to avoid unnecessary public disclosures. Such timeframe should not exceed three months, but could be extended to six months, where necessary due to the specific circumstances of the case, in particular the nature and complexity of the subject of the report, which may require a lengthy investigation.
Amendment 121 #
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, independent channels, separate from their normal public complaints systems, that should be user- friendly and allow for written and oral, as well as electronic and non-electronic reporting.
Amendment 122 #
Proposal for a directive
Recital 54
Recital 54
(54) Persons intending to report should be able to make an informed decision on whether, how and when to report. Competent authorities should therefore publicly disclose and make easily accessible information about the available reporting channels with competent authorities, about the applicable procedures and about the dedicated staff members within these authorities. All information regarding reports should be transparent, easily understandable and reliable in order to promote and not deter reporting. Potential whistleblowers should always be able to freely decide whether to use internal or external reporting channels.
Amendment 125 #
Proposal for a directive
Recital 58
Recital 58
(58) Protection of personal data of the reporting and concerned person, as well as confidentiality of information, is crucial in order to avoid unfair treatment, any harassment or intimidation, 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 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 126 #
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, including recommendations by civil society organisations, should guarantee that those procedures are adequate and thus serving their purpose.
Amendment 128 #
Proposal for a directive
Recital 60
Recital 60
(60) The reporting persons should enjoy the protection of this Directive when they turn to one of the internal or external reporting channels, with no mandatory hierarchy, or when they exercise their right to disclose information publicly to a journalist or a civil society organisation. To enjoy protection, the reporting persons 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. 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 130 #
Proposal for a directive
Recital 61
Recital 61
Amendment 132 #
Proposal for a directive
Recital 62
Recital 62
Amendment 134 #
Proposal for a directive
Recital 63
Recital 63
Amendment 136 #
Proposal for a directive
Recital 64
Recital 64
(64) Persons making a public disclosure directly should alwayso 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, not only in the 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 139 #
Proposal for a directive
Recital 65
Recital 65
(65) Reporting persons and intermediaries 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. 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. Protection should also be afforded in case of direct and/or indirect retaliation taken by third parties.
Amendment 141 #
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 workerindividuals 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 as provided for under national law.
Amendment 144 #
Proposal for a directive
Recital 74
Recital 74
(74) Action taken against reporting persons outside the work-related context, through proceedings, for instance, related to defamation, breach of copyright, trade secrets, confidentiality and personal data protection, can also pose a serious deterrent to whistleblowing. Directive (EU) 2016/943 of the European Parliament and of the Council58 exempts reporting persons from the civil redress measures, procedures and remedies it provides for, in case the alleged acquisition, use or disclosure of the trade secret was carried out for revealing misconduct, wrongdoing or illegal activity, provided that the respondent acted for the purpose of protecting the general public interestThe protection of whistleblowers provided for in this Directive should prevail over Directive (EU) 2016/943 of the European Parliament and of the Council58 and therefore whistleblowers meeting the requirements of this Directive should be exempted from the civil redress measures, procedures and remedies provided for in Directive (EU) 2016/943. Also in other proceedings, reporting persons should be able to rely on having made a report or disclosure in accordance with this Directive as a defence. In such cases, the person initiating the proceedings should carry the burden to prove any intent on the part of the reporting person to violate the law. _________________ 58 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 (OJ L 157, 15.6.2016, p. 1).
Amendment 146 #
Proposal for a directive
Recital 75
Recital 75
(75) A significant cost for reporting persons contesting retaliation measures taken against them in legal proceedings can be the relevant legal fees. Although they could recover these fees at the end of the proceedings, they might not be able to cover them up front, especially if they are unemployed and blacklisted. Assistance for criminal legal proceedings, particularly in accordance with the provisions of Directive (EU) 2016/1919 of the European Parliament and of the Council59 and more generally support to those who are in serious financial need might be key, in certain cases, for the effective enforcement of their rights to protection. _________________ 59 Directive (EU) 2016/1919 of the European Parliament and of the Council of 26 October 2016 on legal aid for suspects and accused persons in criminal proceedings and for requested persons in European arrest warrant proceedings (OJ L 297 4.11.2016, p. 1).
Amendment 149 #
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 152 #
Proposal for a directive
Recital 81
Recital 81
(81) In accordance with Article 26(2) TFEU, the internal market needs to comprise an area without internal frontiers in which the free and safe movement of goods and services is ensured. The internal market should provide Union citizens with added value in the form of better quality and safety of goods and services, ensuring high standards of public health and environmental protection as well as free movement of personal data. Thus, Article 114 TFEU is the appropriate legal basis to adopt the measures necessary for the establishment and functioning of the internal market. In addition to Article 114 TFEU, this Directive should have additional specific legal bases in order to cover the fields that rely on Articles 9, 10, 11, 12, 15, 16, 33, 43, 50, 53(1), 62, 91, 100, 103, 109, 168, 169, 207 and 207352 TFEU and Article 31 of the Euratom Treaty for the adoption of Union measures. Since this Directive also aims at better protecting the financial interests of the Union, Article 325(4) TFEU should be included as a legal basis.
Amendment 153 #
Proposal for a directive
Recital 82
Recital 82
(82) The material scope of this Directive is based on the identification of areas where the introduction of whistleblower protection appears justified and necessary on the basis of currently available evidence. Such material scope may be extended to further areas or Union acts, if this proves necessary as a means of strengthening their enforcement in the light of evidence that may come to the fore in the future or on the basis of the evaluation of the way in which this Directive has operatedUnion law as a whole.
Amendment 155 #
Proposal for a directive
Recital 83
Recital 83
(83) Whenever subsequent EU legislation relevant for this Directive is adopted, it should specify where appropriate that this Directive will apply. Where necessary, Article 1 and the Annex should be amendedis adopted, it should fall under the scope of this Directive.
Amendment 158 #
Proposal for a directive
Recital 84
Recital 84
(84) The objective of this Directive, namely to strengthen enforcement in certain policy areas and acts where breaches of Union law can cause serious harm to the public interest through effective whistleblower protection, cannot be sufficiently achieved by the Member States acting alone or in an uncoordinated manner, but can rather be better achieved by Union action providing minimum standards of harmonisation on whistleblower protection. Moreover, only Union action can provide coherence and align the existing Union rules on whistleblower protection. Therefore, the Union may adopt measures in accordance with the principle of subsidiarity as set out in Article 5 of the Treaty on European Union. In accordance with the principle of proportionality, as set out in that Article, this Directive does not go beyond what is necessary in order to achieve this objective.
Amendment 159 #
Proposal for a directive
Recital 85
Recital 85
(85) This Directive respects fundamental rights and observes the principles recognised in particular by the Charter of Fundamental Rights of the European Union. Accordingly, this Directive must be implemented in accordance with those rights and principles. In particular, this Directive seeks to by ensureing full respect for, inter alia, freedom of expression and information, the right to protection of personal data, the freedom to conduct a business, the right to a high level of consumer protection, the right to fair and just working conditions, the right to a high level of human health protection, the right to a high level of environmental protection, the right to good administration, the right to an effective remedy and the rights of the defence.
Amendment 164 #
Proposal for a directive
Article 1 – paragraph 1 – introductory part
Article 1 – paragraph 1 – introductory part
1. With a view to ensuring and enhancing the enforcement of Union law and policies in specific areas, this Directive lays down common minimum standards for the protection of persons reporting on the following unlawful activities or abuse of law:
Amendment 167 #
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 set outincluded, but not limited to, in the Annex (Part I and Part II) as regards, inter alia, the following areas:
Amendment 169 #
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 corruption, tax evasion, tax avoidance money laundering and terrorist financing;
Amendment 178 #
Proposal for a directive
Article 1 – paragraph 1 – point d a (new)
Article 1 – paragraph 1 – point d a (new)
d a) breaches of the fundamental rights and freedoms enshrined in the Charter of fundamental rights of the European Union.
Amendment 180 #
Proposal for a directive
Article 1 – paragraph 2
Article 1 – paragraph 2
Amendment 185 #
Proposal for a directive
Article 2 – paragraph 1 – introductory part
Article 2 – paragraph 1 – introductory part
1. This Directive shall apply to reporting persons working in the private or public sector who acquired information on breaches in a work-related context including, at least, the following:
Amendment 189 #
Proposal for a directive
Article 2 – paragraph 1 – point a
Article 2 – paragraph 1 – point a
a) persons having the status of worker, and former worker with the meaning of Article 45 TFEU;
Amendment 192 #
Proposal for a directive
Article 2 – paragraph 1 – point d a (new)
Article 2 – paragraph 1 – point d a (new)
d a) Consultants, trainees, student workers, temporary workers and former employees.
Amendment 199 #
Proposal for a directive
Article 2 – paragraph 2 a (new)
Article 2 – paragraph 2 a (new)
2 a. This Directive shall also apply to persons facilitating the reporting such as intermediaries and any natural or legal person who is regularly or professionally engaged in the collection and dissemination of information to the public via any means of mass communication.
Amendment 202 #
Proposal for a directive
Article 2 – paragraph 2 b (new)
Article 2 – paragraph 2 b (new)
2 b. This Directive shall apply to officials as well as to other employees and interns working within the institutions, agencies and bodies of the European Union.
Amendment 203 #
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 AnnexUnion law;
Amendment 211 #
Proposal for a directive
Article 3 – paragraph 1 – point 5
Article 3 – paragraph 1 – point 5
(5) ‘report’ means the provision of information relating to a breach which has occurred or is likely to occur in the organisation at which the reporting person works or has worked or in another organisation with which he or she is or was in contact through his or her work;
Amendment 215 #
Proposal for a directive
Article 3 – paragraph 1 – point 8
Article 3 – paragraph 1 – point 8
(8) ‘disclosure’ means making information on breaches acquired within the work-related context available to the public domain;
Amendment 217 #
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;
Amendment 220 #
Proposal for a directive
Article 3 – paragraph 1 – point 9 a (new)
Article 3 – paragraph 1 – point 9 a (new)
(9 a) ‘intermediary’ means a natural or legal person who facilitates the report or disclosure;
Amendment 221 #
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 223 #
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 which occurs in a work-related context and causes or may cause unjustified detriment to the reporting person, to his or her colleagues, relatives, personal contacts and to persons facilitating the reporting and disclosure;
Amendment 230 #
Proposal for a directive
Article 3 – paragraph 1 – point 14
Article 3 – paragraph 1 – point 14
(14) ‘competent authority’ means any nationalindependent authority entitled to receive reports in accordance with Chapter III and designated to carry out the duties provided for in this Directive, in particular as regards the follow up of reports.
Amendment 231 #
Proposal for a directive
Article 3 – paragraph 1 – point 14 a (new)
Article 3 – paragraph 1 – point 14 a (new)
(14 a) ‘personal information’ means any information relating to an identified or identifiable natural person (‘data subject’); an identifiable natural person is one who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that natural person, in accordance with Regulation (EU) 2016/679;
Amendment 232 #
Proposal for a directive
Article 3 – paragraph 1 – point 14 b (new)
Article 3 – paragraph 1 – point 14 b (new)
(14 b) ‘processing’ means any operation or set of operations which is performed on personal data or onsets of personal data, whether or not by automated means, such as collection, recording, organisation, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, erasure or destruction, in accordance with Regulation (EU)2016/679;
Amendment 233 #
Proposal for a directive
Article 4 – paragraph 1
Article 4 – paragraph 1
1. Member States shall ensure that legal entities in the private and in the public sector establish internal channels and procedures for reporting and following up on reports, following consultations with social partners, if appropriate and civil society organisations. As laid down in Articles 22a, 22b and 22c of Regulation No. 31(EEC), 11 (EAEC), the obligation to establish channels and procedures for reporting and following up on reports shall apply also to European Union institutions, agencies and bodies.
Amendment 235 #
Proposal for a directive
Article 4 – paragraph 2
Article 4 – paragraph 2
2. Such channels and procedures shall allow for reporting by employees of the entity. They may allow for reporting by other persons who are in contact with the entity in the context of their work-related activities, referred to in Article 2(1)(b), (c) and (d), but the use of internal channels for reporting shall not be mandatory for these categories of persons.
Amendment 236 #
Proposal for a directive
Article 4 – paragraph 3 – point c
Article 4 – paragraph 3 – point c
c) private legal entities of any size operating in the area of financial services or vulnerable to money laundering or terrorist financing, as regulated under the Union acts referred to in the Annex.law;
Amendment 238 #
Proposal for a directive
Article 4 – paragraph 6 – point a a (new)
Article 4 – paragraph 6 – point a a (new)
a a) European Union institutions, agencies and bodies;
Amendment 239 #
Proposal for a directive
Article 4 – paragraph 6 – point c
Article 4 – paragraph 6 – point c
c) municipalities with more than 10 000 inhabitants;
Amendment 242 #
Proposal for a directive
Article 5 – paragraph 1 – point b
Article 5 – paragraph 1 – point b
b) the designation of a person or, department or trade union representative competent for following up on the reports;
Amendment 249 #
Proposal for a directive
Article 5 – paragraph 1 – point e a (new)
Article 5 – paragraph 1 – point e a (new)
e a) the prompt acknowledgement of receipt of written reports to the postal or electronic address indicated by the reporting person.
Amendment 259 #
Proposal for a directive
Article 6 – paragraph 2 – point a
Article 6 – paragraph 2 – point a
a) establish independent and autonomous external reporting channels, which are both secure and ensure confidentiality, or anonymity for receiving and handling information provided by the reporting person or intermediaries;
Amendment 262 #
Proposal for a directive
Article 6 – paragraph 2 – point b
Article 6 – paragraph 2 – point b
b) give feedback to the reporting person or intermediaries about the follow- up of the report within a reasonable timeframe not exceeding three months or six months in duly justified cases;
Amendment 267 #
Proposal for a directive
Article 6 – paragraph 4
Article 6 – paragraph 4
4. Member States shall ensure that any authority which has received a report but does not have the competence to address the breach reported transmits it to the competent authority and that the reporting person is promptly informed.
Amendment 270 #
Proposal for a directive
Article 7 – paragraph 1 – point b
Article 7 – paragraph 1 – point b
b) they are designed, set up and operated in a manner that ensures the completeness, integrity and confidentiality of the information and, prevents access to non- authorised staff members of the competent authority and protects the identity of the reporting persons and of the intermediaries;
Amendment 276 #
Proposal for a directive
Article 8 – paragraph 2 – point c
Article 8 – paragraph 2 – point c
c) maintaining contact with the reporting person for the purpose of informing the reporting personand, whenever relevant, with those persons facilitating the reporting, such as intermediaries and investigative journalists, for the purpose of informing them of the progress and the outcome of the investigation.
Amendment 277 #
Proposal for a directive
Article 9 – paragraph 1 – point a
Article 9 – paragraph 1 – point a
a) the manner in which the competent authority may require the reporting person or the intermediary to clarify the information reported or to provide additional information that is available to the reporting person;
Amendment 280 #
Proposal for a directive
Article 9 – paragraph 1 – point b
Article 9 – paragraph 1 – point b
b) a reasonable timeframe, not exceeding three months or at most six 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 282 #
Proposal for a directive
Article 9 – paragraph 1 – point c
Article 9 – paragraph 1 – point c
c) the confidentiality regime applicable to reports, including a detailed description of the circumstances under which the confidential data of a reporting person may be disclosed and its conditions.
Amendment 285 #
Proposal for a directive
Article 9 – paragraph 2
Article 9 – paragraph 2
Amendment 287 #
Proposal for a directive
Article 9 – paragraph 3
Article 9 – paragraph 3
Amendment 288 #
Proposal for a directive
Article 10 – paragraph 1 – introductory part
Article 10 – paragraph 1 – introductory part
Member States shall ensure that competent authorities publish on their websites in at least two official languages of the European Union in a separate, easily identifiable and accessible section at least the following information:
Amendment 289 #
Proposal for a directive
Article 10 – paragraph 1 – point a
Article 10 – paragraph 1 – point a
a) the conditions under which reporting persons or intermediaries qualify for protection under this Directive;
Amendment 290 #
Proposal for a directive
Article 10 – paragraph 1 – point d
Article 10 – paragraph 1 – point d
d) the confidentiality regime applicable to reports, and in particular the information in relation to the processing of personal data in accordance with Article 5 and Article 13 of Regulation (EU) 2016/679, Article 13 of Directive (EU) 2016/680 and Article 11 of Regulation (EC) 45/2001, as applicable.
Amendment 295 #
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 for no longer that is necessary and proportionate for the reporting procedure.
Amendment 297 #
Proposal for a directive
Article 11 – paragraph 2
Article 11 – paragraph 2
2. Competent authorities shall promptly acknowledge the receipt of written reports to the postal or electronic address indicated by the reporting person, unless the reporting person or the intermediary, unless they explicitly requested otherwise or the competent authority reasonably believes that acknowledging receipt of a written report would jeopardise the protection of the reporting person’s or intermediaries' identity.
Amendment 298 #
Proposal for a directive
Article 11 – paragraph 3 – subparagraph 1 – introductory part
Article 11 – paragraph 3 – subparagraph 1 – introductory part
Where a recorded telephone line is used for reporting, subject to the consent of the reporting person or the intermediary, the competent authority shall have the right to document the oral reporting in one of the following ways:
Amendment 300 #
Proposal for a directive
Article 11 – paragraph 3 – subparagraph 2
Article 11 – paragraph 3 – subparagraph 2
The competent authority shall offer the possibility to the reporting person or the intermediary to check, rectify and agree the transcript of the call by signing it.
Amendment 301 #
Proposal for a directive
Article 11 – paragraph 4
Article 11 – paragraph 4
4. Where an unrecorded telephone line is used for reporting, the competent authority shall have the right to document the oral reporting in the form of accurate minutes of the conversation prepared by the dedicated staff members. The competent authority shall offer the possibility to the reporting person or the intermediary to check, rectify and agree with the minutes of the call by signing them.
Amendment 303 #
Proposal for a directive
Article 11 – paragraph 5 – subparagraph 1 – introductory part
Article 11 – paragraph 5 – subparagraph 1 – introductory part
Where a person requests a meeting with the dedicated staff members of the competent authority for reporting according to Article 7(2)(c), competent authorities shall ensure, subject to the consent of the reporting person or the intermediary, that complete and accurate records of the meeting are kept in a durable and retrievable form. A competent authority shall have the right to document the records of the meeting in one of the following ways:
Amendment 305 #
Proposal for a directive
Article 11 – paragraph 5 – subparagraph 1 a (new)
Article 11 – paragraph 5 – subparagraph 1 a (new)
All reports are subject to the processing of personal data in accordance with Article 5 and Article 13 of Regulation (EU) 2016/679, Article 13 of Directive (EU) 2016/680 and Article 11 of Regulation (EC) 45/2001.
Amendment 306 #
Proposal for a directive
Article 11 – paragraph 5 – subparagraph 2
Article 11 – paragraph 5 – subparagraph 2
The competent authority shall offer the possibility to the reporting person or the intermediary to check, rectify and agree with the minutes of the meeting by signing them.
Amendment 307 #
Proposal for a directive
Article 13 – title
Article 13 – title
Conditions for the protection of reporting persons and intermediaries
Amendment 310 #
Proposal for a directive
Article 13 – paragraph 1
Article 13 – paragraph 1
1. A reporting person or the intermediary 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 312 #
Proposal for a directive
Article 13 – paragraph 2 – introductory part
Article 13 – paragraph 2 – introductory part
2. A person reporting externally or internally shall qualify for protection under this Directive where one of the following conditions is fulfilled :.
Amendment 313 #
Proposal for a directive
Article 13 – paragraph 2 – point a
Article 13 – paragraph 2 – point a
Amendment 314 #
Proposal for a directive
Article 13 – paragraph 2 – point b
Article 13 – paragraph 2 – point b
Amendment 315 #
Proposal for a directive
Article 13 – paragraph 2 – point c
Article 13 – paragraph 2 – point c
Amendment 316 #
Proposal for a directive
Article 13 – paragraph 2 – point d
Article 13 – paragraph 2 – point d
d) he or she could not reasonably be expected to use internal reporting channels in light of the subject-matter of the report;eleted
Amendment 318 #
Proposal for a directive
Article 13 – paragraph 2 – point e
Article 13 – paragraph 2 – point e
Amendment 320 #
Proposal for a directive
Article 13 – paragraph 2 – point f
Article 13 – paragraph 2 – point f
Amendment 322 #
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 21.
Amendment 326 #
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 shall qualify for protection under this Directive where:.
Amendment 327 #
Proposal for a directive
Article 13 – paragraph 4 – point a
Article 13 – paragraph 4 – point a
Amendment 331 #
Proposal for a directive
Article 13 – paragraph 4 – point b
Article 13 – paragraph 4 – point b
Amendment 340 #
Proposal for a directive
Article 14 – title
Article 14 – title
Prohibition of retaliation against reporting persons and intermediaries
Amendment 341 #
Proposal for a directive
Article 14 – paragraph 1 – introductory part
Article 14 – paragraph 1 – introductory part
Member States shall take the necessary measures to prohibit any form of retaliation, whether direct or indirect, against reporting persons, intermediaries and relatives of the reporting person meeting the conditions set out in Article 13, including in particular in the form of:
Amendment 343 #
Proposal for a directive
Article 14 – paragraph 1 – point g
Article 14 – paragraph 1 – point g
g) coercion, intimidation, physical and verbal violence, harassment or ostracism at the workplace;
Amendment 346 #
Proposal for a directive
Article 14 – paragraph 1 – point i
Article 14 – paragraph 1 – point i
i) failure to convert an internship or a temporary employment contract into a permanent one;
Amendment 351 #
Proposal for a directive
Article 15 – title
Article 15 – title
Measures for the protection of reporting persons and intermediaries against retaliation
Amendment 352 #
Proposal for a directive
Article 15 – paragraph 1
Article 15 – paragraph 1
Amendment 353 #
Proposal for a directive
Article 15 – paragraph 2
Article 15 – paragraph 2
2. Comprehensive and independent information and advice shall be easily accessible to the public, free of charge, on procedures and remedies available on protection against retaliation in at least two official languages of the European Union. This independent role could be performed, for example, by civil society organisations and/or trade unions.
Amendment 354 #
Proposal for a directive
Article 15 – paragraph 3
Article 15 – paragraph 3
3. Reporting persons and intermediaries shall have access to effective assistance from competent authorities before any relevant authority involved in their protection against retaliation, including, where provided for under national law, certification of the fact that they qualify for protection under this Directive.
Amendment 358 #
Proposal for a directive
Article 15 – paragraph 6
Article 15 – paragraph 6
6. Reporting persons and intermediaries shall have access to remedial measures against retaliation as appropriate, including interim relief pending the resolution of legal proceedings, in accordance with the national frameworkcovering all direct, indirect, and future consequences of any detriment, including, as appropriate: a) making any provision to act taken in breach of Article 14 void; b) the reinstatement of the reporting person with equal salary, status, duties and working conditions; c) the transfer of the reporting person to a new department or supervisor; d) compensation for lost past, present, or future earnings and status; e) compensation for pain and suffering; f) compensation for economic losses particularly in the case of dismissal; g) compensation for other economic damage such as legal expenses and costs of medical treatment, for psycho-social and non-material damage; h) interim relief pending the resolution of legal proceedings.
Amendment 362 #
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, social 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 365 #
Proposal for a directive
Article 15 a (new)
Article 15 a (new)
Article 15 a Whistleblowing Authorities 1) Member States shall designate one or several authorities responsible for the oversight and enforcement of the protection of persons reporting on breaches of Union law. 2) Member States shall ensure that the entity or entities mentioned in paragraph 1 are independent and have sufficient power and resources to operate effectively. 3) The entity or entities shall: a) Receive and diligently follow up on complaints of retaliation from reporting persons; b) Receive and diligently follow up on complaints of inappropriate follow-up of reports and disclosures; c) Provide advice and support to reporting persons and persons designated to receive reports; d) Publish procedural guidelines regarding the procedures for internal and external reporting and follow-up of reports as it considers appropriate; e) Monitor and review external reporting procedures; f) Collect and publish data and information regarding the protection of persons reporting on breaches of Union law, including statistics mentioned in article 21(2); g) Conduct public awareness programmes aimed at informing workers and the general public about the making of reports and disclosures.
Amendment 370 #
Proposal for a directive
Article 17 – paragraph 1 – point b
Article 17 – paragraph 1 – point b
b) take retaliatory measures against reporting persons or intermediaries, also outside the work-related relation;
Amendment 373 #
Proposal for a directive
Article 17 – paragraph 1 – point d
Article 17 – paragraph 1 – point d
d) breach the duty of maintaining the confidentiality of the identity of reporting persons. without having obtained their consent;
Amendment 377 #
Proposal for a directive
Article 17 – paragraph 1 – point d a (new)
Article 17 – paragraph 1 – point d a (new)
d a) do not fulfil their obligation to follow-up on a report;
Amendment 379 #
Proposal for a directive
Article 17 – paragraph 1 – point d b (new)
Article 17 – paragraph 1 – point d b (new)
d b) do not fulfil their obligation to provide feedback to the reporting person about the follow up to the report.
Amendment 380 #
Proposal for a directive
Article 17 – paragraph 2
Article 17 – paragraph 2
Amendment 385 #
Proposal for a directive
Article 21 – paragraph 2 – introductory part
Article 21 – paragraph 2 – introductory part
2. Without prejudice to reporting obligations laid down in other Union legal acts, Member States shall, on an annual basis, submit the following statistics on the reports referred to in Chapter III to the Commission, if they are available at a central level in the Member State concerned: