10 Amendments of Luke Ming FLANAGAN related to 2018/0106(COD)
Amendment 92 #
Proposal for a directive
Recital 7 a (new)
Recital 7 a (new)
(7a) It should be noted, however, that prior to the banking collapse in Ireland, a whistleblower from one particular bank reported personally to the then Regulator1, whose office was in the Central Bank, his serious concerns re major breeches of Financial Regulations; if acted on at the time, he claims this could have exposed what was happening right across the Irish banking sector; instead, there was no action taken and he was subsequently squeezed out of the industry; 1 https://www.irishtimes.com/business/finan cial-services/jonathan-sugarman-ireland- has-destroyed-the-lives-of-whistleblowers- 1.3047366
Amendment 100 #
(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 - these must not be accepted as reason for retaliation in any form). 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 101 #
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-related 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. This protection should be likewise extended to those reporting on activities of EU institutions or their agents/agencies, when those activities take place outside the EU. 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 108 #
Proposal for a directive
Recital 33
Recital 33
(33) Whistleblowers are, in particular, important sources for investigative journalists. Providing effective protection to whistleblowers from retaliation increases the legal certainty of (potential) whistleblowers and thereby encourages and facilitates whistleblowing also to the media. In this respect, protection of whistleblowers as journalistic sources is crucial for safeguarding the ‘watchdog’ role of investigative journalism in democratic societies. In this context also, investigative journalists who use whistleblower sources must themselves be given the same protection as their whistleblower sources;
Amendment 119 #
Proposal for a directive
Recital 49
Recital 49
(49) LAlong with the very real and very reasonable fear of retaliation, lack of confidence in the usefuleffectiveness of reporting is one of the main factors discouraging potential whistleblowers. This warrants imposing a clear obligation on competent authorities to diligently follow-up on the reports received, and, within a reasonable timeframe, give feedback to the reporting persons about the action envisaged or taken as follow-up (for instance, closure based on lack of sufficient evidence or other grounds, launch of an investigation and possibly its findings and/or measures taken to address the issue raised; referral to another authority competent to give follow- up) to the extent that such information would not prejudice the investigation or the rights of the concerned persons.
Amendment 124 #
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 shouldall 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 127 #
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)., or that the reporting persons fear that the use of such channels exposes them to the risk of retaliation (see next paragraph);
Amendment 131 #
Proposal for a directive
Recital 63
Recital 63
(63) In othersome cases, internal channels could not reasonably be expected to function properly, for instance, where the reporting persons have valid reasons to believe that they would suffer retaliation in connection with the reporting; that their confidentiality would not be protected; that the ultimate responsibility holder within the work-related context is involved in the breach; that the breach might be concealed; that evidence may be concealed or destroyed; that the effectiveness of investigative actions by competent authorities might be jeopardised or that urgent action is required (for instance because of an imminent risk of a substantial and specific danger to the life, health and safety of persons, or to the environment. In all such cases, persons reporting externally to the competent authorities and, where relevant, to bodies, offices or agencies of the Union shall be protected. Moreover, protection is also to be granted in cases where Union legislation allows for the reporting person to report directly to the competent national authorities or bodies, offices or agencies of the Union, for example in the context of fraud against the Union budget, prevention and detection of money laundering and terrorist financing or in the area of financial services.
Amendment 133 #
Proposal for a directive
Recital 66
Recital 66
(66) Where retaliation occurs undeterred and unpunished, it has a chilling effect on potential whistleblowers. A clear prohibition of retaliation in law has an important dissuasive effect, furtherand must be strengthened by provisions for personal liability and penalties for the perpetrators of retaliation., and for those in management positions who facilitate and/or ignore such retaliation;
Amendment 137 #
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 shouldall shift to the person who took the detrimental action, who shouldmust then demonstrate that their the action taken was not linked in any way to the reporting or the disclosure.