Activities of Max ANDERSSON 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 (86)
Amendment 22 #
Proposal for a directive
Citation 1
Citation 1
Having regard to the Treaty on the Functioning of the European Union, and in particular Articles 16, 19 (2), 33, 43, 50, 53(1), 62, 77 (2), 78, 79, 83(1), 91, 100, 103, 109, 114, 153, 157, 168, 169, 192, 207 and 325(4) thereof and to the Treaty establishing the European Atomic Energy Community, and in particular Article 31 thereof,
Amendment 44 #
Proposal for a directive
Recital 19
Recital 19
Amendment 46 #
Proposal for a directive
Recital 22
Recital 22
(22) Persons who report information, particularly 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 freedom of information as well as media freedom and pluralism.
Amendment 47 #
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 theand their decision to refpore run thet it results in a risk of work-related or other retaliation (for instance, for breaching the duty of confidentiality or loyaltyUnion legislation on trade secrets). 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 retaliationare reporting or on whom they de facto depend for work.
Amendment 48 #
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 privilegedhave 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 ofall persons connected in a broad sense to the organisation where the breach has occurredto the report.
Amendment 52 #
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 activitiesvis-à-vis the legal or natural person reported on. 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 54 #
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 or constitute a danger or potential threat to the public interest.
Amendment 57 #
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 66 #
Proposal for a directive
Citation 1
Citation 1
Having regard to Article 294(2) andthe Treaty on the Functioning of the European Union, and in particular Articles 16, 19 (2), 33, 43, 50, 53(1), 62, 77 (2), 78, 79, 83(1), 91, 100, 103, 109, 114, 153, 157, 168, 169, 192, 207 and 325(4) of the Treaty on the Functioning of the European Union andthereof and to the Treaty establishing the European Atomic Energy Community, and in particular Article 31 thereof,
Amendment 70 #
Proposal for a directive
Recital 42
Recital 42
(42) Provided the confidentiality of the identity of the reporting person or its anonymity 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 anonymity nor confidentiality of the identity of the reporting person.
Amendment 71 #
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 or where relevant, anonymity, data protection and secrecy. These can be external reporting platform providers, external counsel or auditors or trade union representatives.
Amendment 72 #
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. The purpose of this Directive is to create a climate of trust that enables whistleblowers to report observed or suspected breaches of law, wrongdoing and threats to the public interest. By ‘blowing the whistle’ they play a key role in exposing and preventing breaches of the law and in safeguarding the welfare of society. However, potential whistleblowers are often discouraged from reporting their concerns or suspicions for fear of retaliation.
Amendment 79 #
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, iIt 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 81 #
Proposal for a directive
Recital 62
Recital 62
Amendment 84 #
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 whistleblowers are in a privileged position to disclose breaches, it is necessary to enhance enforcement by ensuring effective protection of whistleblowers from retaliation and introducingto ensure that there are effective reporting channels.
Amendment 84 #
Proposal for a directive
Recital 63
Recital 63
Amendment 86 #
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. Protection against retaliation should also be granted to natural or legal persons closely linked to the reporting person, irrespective of the nature of the activities, and whether they are paid or not. 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 87 #
Proposal for a directive
Recital 77 a (new)
Recital 77 a (new)
(77 a) Following an individual assessment, any third country national who reports information falling into the scope of this directive and suffers from a well-founded fear of persecution or would face a real risk of suffering serious harm because of the report and is unable or, owing to such fear, is unwilling to avail himself or herself of the protection of that country can be considered as qualifying as a refugee or beneficiary of subsidiary protection in accordance with chapters II and III of Directive2011/95/EU
Amendment 89 #
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 93 #
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 harmundermine to the public interest.
Amendment 95 #
Proposal for a directive
Article 1 – paragraph 1 – introductory part
Article 1 – paragraph 1 – introductory part
1. With a view to 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 or threats to the public interest, including:
Amendment 96 #
Proposal for a directive
Recital 9
Recital 9
(9) The importance of whistleblower protection in terms of preventing and deterring breaches of Union rules on transport safety which can endanger human lives has been already acknowledged in sectorial Union instruments on aviation safety38 and maritime transport safety39 , which provide for tailored measures of protection to whistleblowers as well as specific reporting channels. These instruments also include the protection from retaliation of the workers reporting on their own honest mistakes (so called ‘just culture’). It is necessary to complement and expand upon the existing elements of whistleblower protection in these two sectors as well as to provide such protection to enhance the enforcement of safety standards for other transport modes, namely road and railway transport. _________________ 38 Regulation (EU) No 376/2014 of the European Parliament and of the Council, of 3 April 2014, on the reporting, analysis and follow-up of occurrences in civil aviation (OJ L 122, p. 18). 39 Directive 2013/54/EU, of the European Parliament and of the Council, of 20 November 2013, concerning certain flag State responsibilities for compliance with and enforcement of the Maritime Labour Convention (OJ L 329, p. 1), Directive 2009/16/EC of the European Parliament and of the Council, of 23 April 2009, on port State control (OJ L 131, p. 57).
Amendment 97 #
Proposal for a directive
Recital 10
Recital 10
(10) Evidence-gathering, preventing, detecting and addressing environmental crimes and unlawful conduct or omissions as well as potential breaches against the protection of the environment remain a challenge and need to be reinforced as acknowledged in the Commission Communication "EU actions to improve environmental compliance and governance" of 18 January 201840 . Whilst whistleblower protection rules exist at present only in one sectorial instrument on environmental protection41 , the introduction of such protection appearis necessary to ensure effective enforcement of the Union environmental acquis, whose breaches can cause serious harm to the public interest with possible spill-over impacts across national borders. This is also relevant in cases where unsafe products can cause environmental harm. _________________ 40 COM(2018) 10 final. 41 Directive 2013/30/EU of the European Parliament and of the Council, of 12 June 2013, on safety of offshore oil and gas operations (OJ L 178, p. 66).
Amendment 100 #
Proposal for a directive
Recital 12
Recital 12
(12) Enhancing the protection of whistleblowers would also favour preventing and deterring breaches of Euratom rules on nuclear safety, radiation protection and responsible and safe management of spent fuel and radioactive waste and would be reinforce the enforcement of existing provisions of the revised Nuclear Safety Directive44 on the effective nuclear safety culture and, in particular, Article 8 b (2) (a), which requires, inter alia, that the competent regulatory authority establishes management systems which give due priority to nuclear safety and promote, at all levels of staff and management, the ability to question the effective delivery of relevant safety principles and practices and to report in a timely manner on safety issues. _________________ 44 Council Directive 2014/87/Euratom of 8 July 2014 amending Directive 2009/71/Euratom establishing a Community framework for the nuclear safety of nuclear installations (OJ L 219, 25.7.2014, p. 42–52).
Amendment 100 #
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 out in the Annex (Part I and Part II) as regards, including but not limited to the following areas:
Amendment 103 #
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 and terrorist financing, corruption and organized crime;
Amendment 105 #
Proposal for a directive
Article 1 – paragraph 1 – point a – point viii
Article 1 – paragraph 1 – point a – point viii
(viii) public health and public safety;
Amendment 106 #
(viii a) asylum and migration law;
Amendment 107 #
Proposal for a directive
Article 1 – paragraph 1 – point a – point ix a (new)
Article 1 – paragraph 1 – point a – point ix a (new)
(ix a) employment and working conditions;
Amendment 108 #
Proposal for a directive
Article 1 – paragraph 1 – point a – point ix b (new)
Article 1 – paragraph 1 – point a – point ix b (new)
(ix b) tax fraud, tax evasion and tax optimisation;
Amendment 109 #
Proposal for a directive
Article 1 – paragraph 1 – point a – point ix c (new)
Article 1 – paragraph 1 – point a – point ix c (new)
(ix c) violations of human rights or of the rights enshrined in the European Charter of Fundamental Rights;
Amendment 110 #
Proposal for a directive
Article 1 – paragraph 1 – point a – point ix d (new)
Article 1 – paragraph 1 – point a – point ix d (new)
(ix d) company law;
Amendment 111 #
Proposal for a directive
Article 1 – paragraph 1 – point b
Article 1 – paragraph 1 – point b
b) competition law, especially breaches of Articles 101, 102, 106, 107 and 108 TFEU and breaches falling within the scope of Council Regulation (EC) No 1/2003 and Council Regulation (EU) No 2015/1589;
Amendment 112 #
Proposal for a directive
Article 1 – paragraph 1 – point d
Article 1 – paragraph 1 – point d
d) breaches relating to the internal market, as referred to in Article 26(2) TFEU, particularly as regards acts which breach the rules of corporate tax or arrangements whose purpose is to obtain a tax advantage that defeats the object or purpose of the applicable corporate tax law.
Amendment 115 #
Proposal for a directive
Article 1 – paragraph 2
Article 1 – paragraph 2
2. Where specific rules on the reporting of breaches are provided for in sector-specific Union acts listed in Part 2 of the Annex, those rules shall apply. The provisions of this Directive shall be applicable for all matters relating to the protection of reporting persons not regulated in those sector-specific Union acts. This paragraph shall apply only in cases where the protection foreseen in sector- specific acts is higher than the one guaranteed by this Directive.
Amendment 116 #
Proposal for a directive
Recital 22
Recital 22
(22) Persons who report information, particularly 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 freedom of information as well as media freedom and pluralism.
Amendment 117 #
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 theand their decision to refpore run thet it results in a risk of work-related or other retaliation (for instance, for breaching the duty of confidentiality or loyaltyEU legislation on trade secrets). 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 retaliationare reporting or on whom they de facto depend for work.
Amendment 118 #
Proposal for a directive
Article 2 – paragraph 1 – introductory part
Article 2 – paragraph 1 – introductory part
1. This Directive shall apply to reporting persons workingand facilitators in the private or public sector who acquired information on breaches in a work-related context including, at least, the following:
Amendment 119 #
Proposal for a directive
Article 2 – paragraph 1 – point a
Article 2 – paragraph 1 – point a
a) persons having the status of worker, with the meaning of Article 45 TFEU, regardless of whether they are paid or unpaid;
Amendment 122 #
Proposal for a directive
Article 2 – paragraph 1 a (new)
Article 2 – paragraph 1 a (new)
1 a. Without prejudice to Articles 22a, 22b and 22c of Regulation No 31 (EEC), 11 (EAEC), this Directive shall also apply to the officials and the other servants of the European Union and the European Atomic Energy Community who report information on any of the breaches referred to in Article 1.
Amendment 124 #
Proposal for a directive
Article 2 – paragraph 2
Article 2 – paragraph 2
2. This Directive shall also apply to reporting persons whose work-based relationship is yet to begin in cases where information concerning a breach has been acquired during the recruitment process or other pre-contractual negotiation and whose work-based relationships that have terminated.
Amendment 130 #
Proposal for a directive
Article 3 – paragraph 1 – point 1
Article 3 – paragraph 1 – point 1
(1) ‘breaches’ means actual or potential unlawful activities, omissions or abuse of law relating to the Union acts and, notably in areas falling within the scope referred to in Article 1 and in the Annex;
Amendment 133 #
Proposal for a directive
Article 3 – paragraph 1 – point 3
Article 3 – paragraph 1 – point 3
(3) ‘abuse of law’ means acts or omissions falling within the scope of Union law which do not appear to be unlawful in formal terms but defeat the object or the purpose pursued by the applicable rules or represent a danger or a potential danger to the public interest;
Amendment 135 #
Proposal for a directive
Article 3 – paragraph 1 – point 4
Article 3 – paragraph 1 – point 4
(4) ‘information on breaches’ means evidenceinformation about actual breaches as well as reasonable suspicions about potential breaches which have not yet materialised;
Amendment 137 #
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 138 #
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 141 #
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 142 #
Proposal for a directive
Article 3 – paragraph 1 – point 9 a (new)
Article 3 – paragraph 1 – point 9 a (new)
(9 a) "facilitator" means a natural or legal person who contributes directly or indirectly to the reporting process;
Amendment 144 #
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 andor disclosure and which causes or may cause unjustified detriment to the reporting person, suspected reporting person or their family members, relatives and facilitators;
Amendment 153 #
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 mayshall 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 156 #
c a) private legal entities of any size whose conducted activities are likely to constitute a danger to the environment or to public health;
Amendment 160 #
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 an acknowledgment of the receipt of a report within 5 working days, that ensures the confidentiality or anonymity of the identity of the reporting person and prevents access to non- authorised staff members;
Amendment 161 #
Proposal for a directive
Article 5 – paragraph 1 – point d
Article 5 – paragraph 1 – point d
d) a reasonable timeframe, not exceeding three monthirty days following the report, to provide feedback to the reporting person about the follow-up to the report;
Amendment 162 #
Proposal for a directive
Recital 42
Recital 42
(42) Provided the anonymity or confidentiality 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 anonymity nor confidentiality of the identity of the reporting person.
Amendment 162 #
Proposal for a directive
Article 5 – paragraph 1 – point d a (new)
Article 5 – paragraph 1 – point d a (new)
d a) the opportunity for the reporting person, with no obligation to do so, to look over, examine and comment on the final report at the end of the investigation, and that his/her comments must be included in the final report, and in the published version of the report, where applicable;
Amendment 164 #
Proposal for a directive
Article 5 – paragraph 2 – subparagraph 1 – point b
Article 5 – paragraph 2 – subparagraph 1 – point b
(b) physical meetings with the person or department designated to receive reports accompanied, if the reporting person requests it, by a union representative, by a representative of civil society or his/her legal representative.
Amendment 169 #
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 , for receiving and handling information provided by the reporting person and allow for anonymous reporting;
Amendment 170 #
Proposal for a directive
Article 6 – paragraph 2 – point b
Article 6 – paragraph 2 – point b
b) acknowledge receipt of the report within 5 working days, give feedback to the reporting person about the follow-up of the report within a reasonable timeframe not exceeding three months or six months in duly justified casewo months;
Amendment 171 #
Proposal for a directive
Article 6 – paragraph 2 – point b a (new)
Article 6 – paragraph 2 – point b a (new)
b a) gives the reporting person the opportunity, without compelling him/her, to look over, examine and comment on the draft report over the course of the investigation, and the final report before it is published at the end of the investigation and, where relevant, take his/her comments into account;
Amendment 176 #
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 in line with clear procedures for handling all disclosed information securely with due regard to confidentiality or anonymity and that the reporting person is informed.
Amendment 182 #
Proposal for a directive
Article 7 – paragraph 2 – point c
Article 7 – paragraph 2 – point c
c) physical meeting with dedicated staff members of the competent authority. accompanied, if the reporting person requests it, by a union representative by a representative of civil society or his/her legal representative.
Amendment 185 #
Proposal for a directive
Article 7 – paragraph 4
Article 7 – paragraph 4
4. Member States shall establish procedures to ensure that, where a report being initially addressed to a person whoor to an authority that has not been designated as responsible handler for reports that person is refrained from disclosing any information that might identify the reporting or the concerned person., clear procedures are established for handling all disclosed information securely with due regard to confidentiality or anonymity;
Amendment 187 #
Proposal for a directive
Recital 62
Recital 62
Amendment 190 #
Proposal for a directive
Recital 63
Recital 63
Amendment 204 #
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. The protection of whistleblowers provided for in this Directive shall prevail over 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 that, in case the alleged acquisition, use or disclosure of the trade secret was carried out for revealingcan reasonably be assumed to serve as proof of actual misconduct, wrongdoing or illegal activity, provided that the respondent acted for the purpose of protecting the general public interest. 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 207 #
Proposal for a directive
Article 13 – paragraph 1
Article 13 – paragraph 1
1. A reporting person 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 regardless of the reporting channel chosen.
Amendment 210 #
Proposal for a directive
Article 13 – paragraph 1 a (new)
Article 13 – paragraph 1 a (new)
1 a. A person who anonymously reported information on breach and whose identity was revealed shall also qualify for protection under this Directive.
Amendment 212 #
Proposal for a directive
Article 13 – paragraph 2
Article 13 – paragraph 2
Amendment 215 #
Proposal for a directive
Article 13 – paragraph 4
Article 13 – paragraph 4
Amendment 217 #
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 meeting the conditions set out in Article 13, or any kinds of actions, whether direct or indirect, that could discourage reporting persons from exercising the rights protected by this Directive, including in particular in the form of:
Amendment 224 #
Proposal for a directive
Article 15 – paragraph 8 a (new)
Article 15 – paragraph 8 a (new)
8 a. Member States shall ensure that, following an individual assessment, any third country national who reports information falling into the scope of this directive and suffers from a well-founded fear of persecution or would face a real risk of suffering serious harm because of the report and is unable or, owing to such fear, is unwilling to avail himself or herself of the protection of that country can be considered as qualifying as a refugee beneficiary of subsidiary protection in accordance with chapters II and III of Directive 2011/95/EU.
Amendment 227 #
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 or take actions that uncover or aim at uncovering the identity of the reporting persons in case of anonymous reporting.
Amendment 229 #
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 out in the Annex (Part I and Part II) as regards, including but not limited to the following areas:
Amendment 229 #
Proposal for a directive
Article 17 – paragraph 2
Article 17 – paragraph 2
Amendment 253 #
Proposal for a directive
Article 2 – paragraph 1 – introductory part
Article 2 – paragraph 1 – introductory part
1. This Directive shall apply to reporting persons workingand facilitators in the private or public sector who acquired information on breaches in a work-related context including, at least, the following:
Amendment 284 #
Proposal for a directive
Article 3 – paragraph 1 – point 1
Article 3 – paragraph 1 – point 1
(1) ‘breaches’ means actual or potential unlawful activities, omissions or abuse of law relating to the Union acts and, notably in areas falling within the scope referred to in Article 1 and in the Annex;
Amendment 292 #
Proposal for a directive
Article 3 – paragraph 1 – point 3
Article 3 – paragraph 1 – point 3
(3) ‘abuse of law’ means acts or omissions falling within the scope of Union law which do not appear to be unlawful in formal terms but defeat the object or the purpose pursued by the applicable rules or represent a danger or a potential danger to the public interest;
Amendment 367 #
Proposal for a directive
Article 5 – paragraph 2 a (new)
Article 5 – paragraph 2 a (new)
2a. Reporting channels, including digital mechanisms, and institutional arrangements shall provide for safe, secure, confidential and anonymous disclosures.
Amendment 374 #
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, for receiving and handling information provided by the reporting person and allow for anonymous reporting;
Amendment 428 #
Proposal for a directive
Article 13 – paragraph 1
Article 13 – paragraph 1
1. A reporting person 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, regardless of the reporting channel.
Amendment 435 #
Proposal for a directive
Article 13 – paragraph 2 – introductory part
Article 13 – paragraph 2 – introductory part
2. A person reporting externallywho anonymously disclosed information that falls within the scope of this directive and whose identity was revealed shall also qualify for protection under this Ddirective where one of the following conditions is fulfilled :.
Amendment 436 #
Proposal for a directive
Article 13 – paragraph 2 – point a
Article 13 – paragraph 2 – point a
Amendment 437 #
Proposal for a directive
Article 13 – paragraph 2 – point b
Article 13 – paragraph 2 – point b
Amendment 449 #
Proposal for a directive
Article 13 – paragraph 4
Article 13 – paragraph 4
Amendment 494 #
Proposal for a directive
Article 16 a (new)
Article 16 a (new)
Article 16 a Rights of Persons Implicated Member States shall ensure that any findings or reports resulting from an assessment or an investigation of, or prompted by, one or more protected disclosure(s) does not unjustly prejudice any individual, whether directly or indirectly. The right to a fair hearing or trial shall also be fully respected.
Amendment 505 #
Proposal for a directive
Article 17 a (new)
Article 17 a (new)
Article 17 a No Waiver of Rights and Remedies The rights and remedies provided for under this Directive may not be waived or limited by any agreement, policy, form or condition of employment, including by any pre-dispute arbitration agreement. Any attempt to waive or limit these rights and remedies shall be considered void and unenforceable and may be subject to penalty or sanction.