Activities of Jeppe KOFOD 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 (26)
Amendment 37 #
Proposal for a directive
Recital 7
Recital 7
(7) In the area of financial services, the added value of whistleblower protection was already acknowledged by the Union legislator. In the aftermath of the financial crisis, which exposed serious shortcomings in the enforcement of the relevant rules, measures for the protection of whistleblowers were introduced in a significant number of legislative instruments in this area34 . In particular, in the context of the prudential framework applicable to credit institutions and investment firms, Directive 2013/36/EU35 provides for protection of whistleblowers, which extends also to Regulation (EU) No 575/2013 on prudential requirements for credit institutions and investment firms. However, a number of high profile cases involving European financial institutions have proven, that protection of whistleblowers within the full range of financial institutions still remain unsatisfactory and that fears of reprisals from both employers and authorities still prevent whistleblowers from coming forward with information on breaches of law. _________________ 34 Communication of 8.12.2010 "Reinforcing sanctioning regimes in the financial services sector". 35 Directive 2013/36/EU of the European Directive 2013/36/EU of the European Parliament and of the Council of 26 June 2013 on access to the activity of credit institutions and the prudential supervision of credit institutions and investment firms, amending Directive 2002/87/EC and repealing Directives 2006/48/EC and 2006/49/EC (OJ L 176, 27.6.2013, p. 338).
Amendment 42 #
Proposal for a directive
Recital 11
Recital 11
(11) Similar considerations warrant the introduction of whistleblower protection to build upon existing provisions and prevent breaches of EU rules in the area of food chain and in particular on food and feed safety as well as on animal health and welfare. The different Union rules developed in these areas are closely interlinked. Regulation (EC) No 178/200242 sets out the general principles and requirements which underpin all Union and national measures relating to food and feed, with a particular focus on food safety, in order to ensure a high level of protection of human health and consumers’ interests in relation to food as well as the effective functioning of the internal market. This Regulation provides, amongst others, that food and feed business operators are prevented from discouraging their employees and others from cooperating with competent authorities where this may prevent, reduce or eliminate a risk arising from food. The Union legislator has taken a similar approach in the area of ‘Animal Health Law’ through Regulation (EU) 2016/429 establishing the rules for the prevention and control of animal diseases which are transmissible to animals or to humans43 . Systematic breaches of Union law as regards animal welfare remains a significant issue across Member States, however, the number of whistleblowers in this field is very low, which indicates a need to further strengthen protections of would-be whistleblowers and ensuring safe and effective reporting channels for them to disclose their information. _________________ 42 Regulation (EC) No 178/2002 of the European Parliament and of the Council of 28 January 2002 laying down the general principles and requirements of food law, establishing the European Food Safety Authority and laying down procedures in matters of food safety (OJ L 31, p. 1). 43 OJ L 84, p. 1
Amendment 49 #
Proposal for a directive
Recital 18
Recital 18
(18) Certain Union acts, in particular in the area of financial services, such as Regulation (EU) No 596/2014 on market abuse49 , and Commission Implementing Directive 2015/2392, adopted on the basis of that Regulation50 , already contain detailed rules on whistleblower protection. Such existing Union legislation, including the list of Part II of the Annex, should be complemented by the present Directive, so that these instruments are fully aligned with its minimum standards whilst maintaining any specificities they provide for, tailored to the relevant sectors. This is of particular importance to ascertain which legal entities in the area of financial services, the prevention of money laundering and terrorist financing are currently obliged to establish internal reporting channels. As these cases often involve highly complex international corporate and financial constructions, which are likely to be within the remit of differing jurisdictions, provisions for a unified point of contact for whistleblowers should be adopted. _________________ 49 OJ L 173, p. 1. 50 Commission Implementing Directive (EU) 2015/2392 of 17 December 2015 on Regulation (EU) No 596/2014 of the European Parliament and of the Council as regards reporting to competent authorities of actual or potential infringements of that Regulation (OJ L 332, p. 126).
Amendment 51 #
Proposal for a directive
Recital 19
Recital 19
(19) Each time a new Union act for which whistleblower protection is relevant and can contribute to more effective enforcement is adopted, consideration should be given to whether to amend the Annex to the present Directive should be amended in order to place it under its scope.
Amendment 53 #
Proposal for a directive
Recital 20
Recital 20
(20) This Directive should be without prejudice to the protection afforded to employees when reporting on breaches of Union employment law. In particular, in the area of occupational safety and health, Article 11 of Framework Directive 89/391/EEC already requires Member States to ensure that workers or workers' representatives shall not be placed at a disadvantage because of their requests or proposals to employers to take appropriate measures to mitigate hazards for workers and/or to remove sources of danger. Workers and their representatives are entitled to raise issues with the competent national or European Union authorities if they consider that the measures taken and the means employed by the employer are inadequate for the purposes of ensuring safety and health.
Amendment 58 #
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 73 #
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, to ensure proper implementation and to ensure full, loyal and expeditious cooperation between competent authorities both within the Member State itself and with relevant authorities in other Member States. These may be 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 83 #
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 disclosuresensure swift action by competent authorities and safeguard evidence needed for further investigation and prosecution. 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. In such cases a reasoned argument for such a prolongation must be provided. In all cases an initial reply should be provided no later than 4 weeks from the date of the initial reporting and updates on actions taken and relevant new information should be provided monthly hereafter.
Amendment 85 #
Proposal for a directive
Recital 57
Recital 57
(57) Member States should ensure the adequate record-keeping of all reports of infringement and that every report is retrievable within the competent authority and that information received through reports could be used as evidence in enforcement actions where appropriate and made available to other Member States' or European Union authorities where relevant. It remains the responsibility of both the transmitting and receiving authorities to ensure full protection of whisteblowers and to ensure full, loyal and expeditious cooperation.
Amendment 90 #
Proposal for a directive
Recital 61
Recital 61
(61) The requirement of a tiered use of reporting channels, as a general rule, is necessary to ensure that the information gets to the persons who can contribute to the early and effective resolution of risks to the public interest as well as to prevent unjustified reputational damage from public disclosure. At the same time, some exceptions to its application are necessary, allowing the reporting person to choose the most appropriate channel depending on the individual circumstances of the case. Moreover, it is necessary to protect public disclosures taking into account democratic principles such as transparency and accountability, and fundamental rights such as freedom of expression and media freedom, whilst balancing the interest of employers to manage their organisations and to protect their interests with the interest of the public to be protected from harm, in line with the criteria developed in the case-law of the European Court of Human Rights57 . _________________ 57 One of the criteria for determining whether retaliation against whistleblowers making public disclosures interferes with freedom of expression in a way which is not necessary in a democratic society, is whether the persons who made the disclosure had at their disposal alternative channels for making the disclosure; see, for instance, Guja v. Moldova [GC], no 14277/04, ECHR 2008.
Amendment 95 #
Proposal for a directive
Recital 65
Recital 65
(65) Reporting persons 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.
Amendment 108 #
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 money laundering, tax evasion, tax avoidance and terrorist financing;
Amendment 133 #
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.
Amendment 140 #
Proposal for a directive
Article 5 – paragraph 1 – point d
Article 5 – paragraph 1 – point d
d) a reasonable timeframe, not exceeding three months following the report, to provide substantive feedback to the reporting person about the follow-up to the report, 4 weeks to provide initial feedback and 1 week to provide a confidential note of receipt;
Amendment 146 #
Proposal for a directive
Article 5 – paragraph 3
Article 5 – paragraph 3
3. The person or department referred to in point (b) of paragraph 1 may be the same person who is competent for receiving the reports. Additional persons may be designated as “trusted persons” from whom reporting persons and those considering reporting may seek confidential advice. These persons may, in particular, be workers' representatives.
Amendment 152 #
Proposal for a directive
Article 6 – paragraph 2 – point c
Article 6 – paragraph 2 – point c
c) transmit the information contained in the report to competent bodies, offices or agencies of the Union or other Member States, as appropriate, for further investigation, where provided for under national or Union law.
Amendment 153 #
Proposal for a directive
Article 6 – paragraph 2 – point c a (new)
Article 6 – paragraph 2 – point c a (new)
c a) cooperate fully, loyally and expeditiously with other Member States and EU authorities.
Amendment 154 #
Proposal for a directive
Article 6 – paragraph 3
Article 6 – paragraph 3
3. Member States shall ensure that competent authorities follow up on the reports by taking the necessary measures and investigate, to the extent appropriate, the subject-matter of the reports. The competent authorities shall communicate to the reporting person and all relevant other Member States and competent EU competent authorities, offices and agencies the final outcome of the investigations.
Amendment 157 #
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 informed, including competent authorities in other Member States.
Amendment 159 #
Proposal for a directive
Article 7 – paragraph 1 – point a a (new)
Article 7 – paragraph 1 – point a a (new)
a a) they are designed, set up and operated in a manner that ensures the confidentiality of the personal information of the reporting person or persons and effectively prevents access to non-authorised staff members of the competent authority and keeps information on which staff members have accessed this information and when;
Amendment 166 #
Proposal for a directive
Article 8 – paragraph 2 – point c
Article 8 – paragraph 2 – point c
c) maintaining confidential contact with the reporting person and/or their trusted representatives for the purpose of informing the reporting person of the progress and the outcome of the investigation.
Amendment 167 #
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 six months in duly justified cases, for giving substantive feed-back to the reporting person about the follow-up of the report and the type and content of this feed-back;, 4 weeks to provide initial feedback and 1 week to provide a confidential note of receipt.
Amendment 188 #
Proposal for a directive
Article 14 a (new)
Article 14 a (new)
Article 14 a Support for the reporting person or persons from an independent third party 1. Member States may provide for the person reporting or intending to make a report or a public disclosure to be given support in the procedure. Such support shall ensure the identity of the persons referred to in this paragraph remains confidential and may, in particular, take the form of: (a) free, impartial and confidential advice, especially on the scope of this Directive, the reporting channels and the protection granted to the reporting person and the rights of the concerned person; (b) legal advice in the event of a legal dispute; (c) psychological support; 2. This support may be provided by an independent administrative authority, trade unions or other organisations representing workers or an accredited body designated by the Member State, provided that it fulfils the following criteria: (a) it is properly constituted according to the law of a Member State; (b) it has a legitimate interest in ensuring compliance with the provisions laid down in this Directive; and (c) it is a not-for-profit entity.
Amendment 191 #
Proposal for a directive
Article 15 a (new)
Article 15 a (new)
Article 15 a Duty to preserve the confidentiality of the identity of the reporting person 1. The identity of the reporting person or persons may not be disclosed without their express consent. This duty of confidentiality also includes information which may be used to identify the reporting person. 2. A person who possesses or obtains the information referred to in paragraph 1 shall be duty-bound not to disclose it. 3. The circumstances in which, by way of derogation from paragraph 2, information germane to the identity of the reporting person may be disclosed shall be limited to exceptional cases where disclosure of such information is a necessary and proportionate obligation required by Union or national law in the context of subsequent investigations or judicial proceedings or to safeguard the freedoms of others including the right of defence of the concerned person, and in each case subject to appropriate safeguards under such laws. In such cases apropriate and effective steps must be taken to ensure the safety and well-being of the reporting person or persons. 4. In the cases referred to in paragraph 3, the person designated to receive the report shall inform the reporting person in due time before disclosing his or her identity and consult with them on other possible alternative courses of action. 5. The internal and external reporting channels shall be designed in such a way as to ensure the identity of the reporting person remains confidential and to prevent access by non-authorised persons. Information shall be kept on which staff members have accessed confidential information, including time and dates of such access.
Amendment 198 #
Proposal for a directive
Article 17 a (new)
Article 17 a (new)
Article 17 a Obligation to cooperate 1. Member States' authorities who are made aware of breaches of Union law, as covered by this directive, are obliged to expeditiously inform all other relevant Member States' authorities and/or EU offices and agencies and to cooperate with these in a loyal, effective and expeditious manner. 2. Member States' authorities who are notified by other Member States' authorities of potential breaches of union law, as covered by this directive, are required to provide a substantive response on actions taken in connection with said notification as well as an offical notification of receipt and a point of contact for further cooperation. 3. Member States' authorities are obliged to safeguard confidential information received, especially as related to the identity and other personal information of reporting persons. 4. Member States' authorities are obliged to provide confidential access to the information received from reporting persons and to facilitate requests for further information in a timely manner. 5. Member States' authorities are obliged to share all relevant information with other competent Member States authorities pertaining to breaches of Union or national law in international cases and to do so in a timely manner.
Amendment 206 #
Proposal for a directive
Annex I – part I – subpart G – point 4 – point iii a (new)
Annex I – part I – subpart G – point 4 – point iii a (new)
(iii a) Council Directive 2008/120/EC of 18 December 2008 laying down minimum standards for the protection of pigs.