39 Amendments of Isabella ADINOLFI related to 2018/0106(COD)
Amendment 111 #
Proposal for a directive
Recital 5
Recital 5
(5) Accordingly, common minimum standards ensuring effective whistleblower protection should apply in those 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 interest.
Amendment 112 #
Proposal for a directive
Recital 6
Recital 6
(6) Whistleblower protection is necessary to enhance the enforcement of Union law on public procurement. In addition to the need of preventing and detecting fraud and corruption in the context of the implementation of the EU budget, including procurement, it is necessary to tackle insufficient enforcement of rules on public procurement by national public authorities and certain public utility operators when purchasing goods, works and services. Breaches of such rules create distortions of competition, increase costs for doing business, violate the interests of investors and shareholders and, overall, lower attractiveness for investment and create an uneven level playing field for all businesses across Europe, thus affecting the proper functioning of the internal market. In most of the cases such breaches place the trust of citizens in public institutions under a serious threat, thus jeopardising the proper functioning of democracy.
Amendment 124 #
Proposal for a directive
Recital 24
Recital 24
(24) Persons need specific legal protection (legal, economic, social and psychological) 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, amongst others, 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 retaliationFurthermore, the protection should be granted to incentive citizens to report breaches of law in order to safeguard the public interest and proper functioning of democracy.
Amendment 129 #
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 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 131 #
Proposal for a directive
Recital 29
Recital 29
(29) Effective detection and prevention of serious harm to the public interest requires that the information reported which qualifies for protection covers not only unlawful activities but also abuse of law, namely acts or omissions which do not appear to be unlawful in formal terms but defeat the object or the purpose of the law.
Amendment 132 #
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 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 135 #
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, amongst others, 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 139 #
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 judicial authorities, regulatory or supervisory bodies in the areas concerned, law enforcement agencies, anti-corruption bodies and ombudsmen. 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 141 #
Proposal for a directive
Recital 38
Recital 38
Amendment 142 #
Proposal for a directive
Recital 39
Recital 39
Amendment 144 #
Proposal for a directive
Recital 40
Recital 40
(40) It should be clear that, in the case of private legal entities which do notfail to provide for internal reporting channels, reporting 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 145 #
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 size. In cases where internal channels are not provided in small public entities, Member States may provide for internal reporting within a higher level in the administration (that is to say at regional or central level).
Amendment 151 #
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 theseinternal reporting procedures as well as on procedures to report externally to relevant competent authorities. 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 161 #
Proposal for a directive
Recital 60
Recital 60
(60) 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 intentional 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 163 #
Proposal for a directive
Recital 62
Recital 62
(62) As a rule, reporting 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).
Amendment 172 #
Proposal for a directive
Recital 70
Recital 70
(70) Retaliatory measures are likely to be presented as being justified on grounds other than the reporting and it can be very difficult for reporting persons to prove the link between the two, whilst the perpetrators of retaliation may have greater power and resources to document the action taken and the reasoning. Therefore, once the reporting person demonstrates prima facie that he/she made a report or disclosure in line with this Directive and suffered a detriment, the burden of proof should shift to the person who took the detrimental action, who should then demonstrate that their the action taken was not linked in any way to the reporting or the disclosure.
Amendment 198 #
Proposal for a directive
Article 3 – paragraph 1 – point 4
Article 3 – paragraph 1 – point 4
(4) ‘information on breaches’ means evidence (confidential or otherwise) about actual breaches as well as reasonable suspicions about potential breaches which have not yet materialised;
Amendment 205 #
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 direct or indirect detriment to the reporting person;
Amendment 208 #
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 b and by any other persons who are in contact with thesuch 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 209 #
Proposal for a directive
Article 4 – paragraph 3
Article 4 – paragraph 3
Amendment 210 #
Proposal for a directive
Article 4 – paragraph 4
Article 4 – paragraph 4
Amendment 211 #
Proposal for a directive
Article 4 – paragraph 5
Article 4 – paragraph 5
Amendment 212 #
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 214 #
Proposal for a directive
Article 4 – paragraph 6 – point c a (new)
Article 4 – paragraph 6 – point c a (new)
(ca) private entities providing a public service or under public control;
Amendment 217 #
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, and where necessary the anonymity, of the identity of the reporting person, also in the digital environment, and prevents access to non-authorised staff members;
Amendment 230 #
Proposal for a directive
Article 6 – paragraph 1
Article 6 – paragraph 1
1. Member States shall designate the authorities competent to receive and handle reports. Such authorities shall have adequate financial and human resources to enable them to exercise the competences assigned to them.
Amendment 233 #
Proposal for a directive
Article 6 – paragraph 2 – point a
Article 6 – paragraph 2 – point a
(a) establish independent and, autonomous, clear and transparent external reporting channels, which are both secure and ensure confidentiality, for receiving and handling information provided by the reporting person;
Amendment 243 #
Proposal for a directive
Article 7 – paragraph 1 – introductory part
Article 7 – paragraph 1 – introductory part
1. Dedicated external reporting channels shall be considered independent and, autonomous, clear and transparent if they meet all of the following criteria:
Amendment 245 #
Proposal for a directive
Article 7 – paragraph 1 – point c a (new)
Article 7 – paragraph 1 – point c a (new)
(ca) they are easily accessible, also to people with disabilities;
Amendment 254 #
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 to clarify the information reported or to provide additional information that is available to the reporting person;
Amendment 275 #
Proposal for a directive
Article 13 – paragraph 2 – point c
Article 13 – paragraph 2 – point c
Amendment 276 #
Proposal for a directive
Article 13 – paragraph 2 – point a
Article 13 – paragraph 2 – point a
(a) he or she first reported internally but no appropriate and effective action was taken in response to the report within the reasonable timeframe referred in Article 5;
Amendment 293 #
5. In judicial proceedings relating to a detriment suffered by the reporting person, and subject to him or her providing reasonable grounds to believe that the detriment was in retaliation for having made the report or disclosure, it shall be for the person who has taken the retaliatory measure to prove that the detriment was not a consequence of the report but was exclusively based on duly justified grounds.
Amendment 309 #
2. Member States shall provide for effective, proportionate and dissuasive penalties applicable to persons makingproven having intentionally made malicious or abusive reports or disclosures, including measures for compensating persons who have suffered damage fromunjustified direct damage from intentional malicious or abusive reports or disclosures.
Amendment 312 #
Proposal for a directive
Article 20 – paragraph 1
Article 20 – paragraph 1
1. Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive by 15 Ma January 20210, at the latest. They shall forthwith communicate to the Commission the text of those provisions.
Amendment 313 #
Proposal for a directive
Article 21 – paragraph 1
Article 21 – paragraph 1
1. Member States shall provide the Commission with all relevant information regarding the implementation and application of this Directive. On the basis of the information provided, the Commission shall, by 15 Ma January 20232, submit a report to the European Parliament and the Council on the implementation and application of this Directive.
Amendment 314 #
Proposal for a directive
Article 21 – paragraph 2 – point c a (new)
Article 21 – paragraph 2 – point c a (new)
(ca) the ascertained number of retaliatory measures against reporting persons;
Amendment 315 #
Proposal for a directive
Article 21 – paragraph 3
Article 21 – paragraph 3
3. The Commission shall, by 15 Ma January 20276, taking into account its report submitted pursuant to paragraph 1 and the Member States’ statistics submitted pursuant to paragraph 2, submit a report to the European Parliament and to the Council assessing the impact of national law transposing this Directive. The report shall evaluate the way in which this Directive has operated and consider the need for additional measures, including, where appropriate, amendments with a view to extending the scope of this Directive to further areas or Union acts.
Amendment 316 #
Proposal for a directive
Article 21 – paragraph 3 a (new)
Article 21 – paragraph 3 a (new)
3a. Such reports shall be made public and easily accessible.