Activities of Michael DETJEN 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 (43)
Amendment 17 #
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, 33, 43, 50, 53(1), 62, 91, 100, 103, 109, 114, 153, 154, 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 20 #
Proposal for a directive
Citation 1 a (new)
Citation 1 a (new)
Having regard to initiative report of the European Parliament on legitimate measures to protect whistle-blowers acting in the public interest when disclosing the confidential information of companies and public bodies,
Amendment 30 #
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 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 but does not foresee the right to report breaches.
Amendment 34 #
Proposal for a directive
Recital 26
Recital 26
(26) Protection should, firstly, apply to persons having the status of 'workers', within the meaning of Article 45 TFEU, as interpreted by the Court of Justice of the European Union52 , i.e. persons who, for a certain period of time, perform or performed services for and under the direction of another person, in return of which they receive remuneration. Protection should thus also be granted to workers in non-standard employment relationships, including part- time workers and fixed-term contract workers, as well as persons with a contract of employment or employment relationship with a temporary agency, contractor or subcontractor or where the employee-like relationship is solely bound to directives, which are types of relationships where standard protections against unfair treatment are often difficult to apply. __________________ 52 Judgments of 3 July 1986, Lawrie-Blum, Case 66/85; 14 October 2010, Union Syndicale Solidaires Isère, Case C-428/09; 9 July 2015, Balkaya, Case C-229/14; 4 December 2014, FNV Kunsten, Case C- 413/13; and 17 November 2016, Ruhrlandklinik, Case C-216/15.
Amendment 38 #
Proposal for a directive
Recital 33 a (new)
Recital 33 a (new)
(33a) Whistleblowers should be protected also when they disclose information to the public, including through the media, as insufficient whistleblower protection would affect individuals’ freedom of expression as well as the public’s right to access information and media freedom.
Amendment 39 #
Proposal for a directive
Recital 33 b (new)
Recital 33 b (new)
(33b) In order to facilitate public disclosures and establish an open culture of reporting in line with the Council of Europe Recommendation CM/Rec (2014) 7 on the protection of whistleblowers, the conditions for public disclosures should be sufficiently flexible, allowing the media to fulfil its democratic role as vector of freedom of expression and information.
Amendment 70 #
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 the individual protection of persons reporting breaches 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 73 #
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 the following areas:
Amendment 76 #
Proposal for a directive
Article 1 – paragraph 1 – point a – point x a (new)
Article 1 – paragraph 1 – point a – point x a (new)
(xa) social rights, individual and collective workers' rights as well as the rights of their representatives;
Amendment 81 #
Proposal for a directive
Article 2 – paragraph 1 – point a
Article 2 – paragraph 1 – point a
(a) persons having or having had the status of a worker or an employee-like employment relationship, with the meaning of Article 45 TFEU;
Amendment 86 #
Proposal for a directive
Article 2 – paragraph 1 – point c
Article 2 – paragraph 1 – point c
(c) shareholders and persons belonging to the management body of an undertaking, including non-executive members, as well as volunteers and unpaid trainees;
Amendment 87 #
Proposal for a directive
Article 2 – paragraph 1 – point d a (new)
Article 2 – paragraph 1 – point d a (new)
(da) any person facilitating the report on possible breaches;
Amendment 88 #
Proposal for a directive
Article 2 – paragraph 1 – point d b (new)
Article 2 – paragraph 1 – point d b (new)
(db) family members of the reporting person;
Amendment 89 #
Proposal for a directive
Article 2 – paragraph 1 – point d c (new)
Article 2 – paragraph 1 – point d c (new)
(dc) any person presenting new information on the breach.
Amendment 92 #
Proposal for a directive
Article 3 – paragraph 1 – point 1
Article 3 – paragraph 1 – point 1
(1) ‘breaches’ means any actual or potential unethical or dishonest misconduct or 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 Annex;
Amendment 97 #
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 regardless of the employment status or business relationship 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 98 #
Proposal for a directive
Article 3 – paragraph 1 – point 10 a (new)
Article 3 – paragraph 1 – point 10 a (new)
(10a) ‘worker’ means a natural person who for a certain period of time performs services for and under the direction of another person in return for remuneration;
Amendment 103 #
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. Workers and their representatives shall be consulted on proposals to set up respective channels and procedures.
Amendment 105 #
Proposal for a directive
Article 4 – paragraph 2 a (new)
Article 4 – paragraph 2 a (new)
2a. Such channels must guarantee the anonymity of the reporting person as well as their personal information.
Amendment 107 #
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 119 #
Proposal for a directive
Article 5 – paragraph 3 a (new)
Article 5 – paragraph 3 a (new)
3a. It shall be ensured that a worker considering making a report is protected to discuss, be accompanied and represented by his/her trade union, including throughout the internal process.
Amendment 128 #
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 while protecting her or his anonymity;
Amendment 138 #
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 withthat the information reported falls within the scope of this Directive. The protection covers whatever reporting channel was used; the individual circumstances of each case will determine the scope of this Directivemost appropriate channel.
Amendment 143 #
Proposal for a directive
Article 13 – paragraph 2 – introductory part
Article 13 – paragraph 2 – introductory part
2. A person reporting externally shall qualify for protection under this Directive where one of the following conditions is fulfilledn raising concerns about matters under national law implementing union law in particular when he or she was entitled to report directly to a competent authority by virtue of Union law :
Amendment 147 #
Proposal for a directive
Article 13 – paragraph 2 – point c
Article 13 – paragraph 2 – point c
(c) the use of internal reporting channels wasould not mandatory for the reporting person, in accordance with Article 4(2)have achieved the same results;
Amendment 149 #
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;
Amendment 151 #
Proposal for a directive
Article 13 – paragraph 2 – point e
Article 13 – paragraph 2 – point e
(e) he or she had reasonable grounds to believe that the use of internal reporting channels could jeopardise the effectiveness of investigative actions by competent authorities;
Amendment 153 #
Proposal for a directive
Article 13 – paragraph 2 – point f
Article 13 – paragraph 2 – point f
Amendment 155 #
Proposal for a directive
Article 13 – paragraph 2 – point f a (new)
Article 13 – paragraph 2 – point f a (new)
(fa) he or she has reasonable grounds to believe that the information reported was true at the time of reporting.
Amendment 159 #
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 one of the following conditions applies:
Amendment 162 #
Proposal for a directive
Article 13 – paragraph 4 – point b a (new)
Article 13 – paragraph 4 – point b a (new)
(ba) where the public has an overriding interest in being informed directly.
Amendment 166 #
Proposal for a directive
Article 14 – paragraph 1 – point c
Article 14 – paragraph 1 – point c
(c) transfer or restriction of duties, change of location of place of work, reduction in wages, change in working hour and allowances, change or reduction in working hours and working time arrangements;
Amendment 167 #
Proposal for a directive
Article 14 – paragraph 1 – point d
Article 14 – paragraph 1 – point d
(d) withholding of training and vocational training;
Amendment 170 #
Proposal for a directive
Article 14 – paragraph 1 – point h a (new)
Article 14 – paragraph 1 – point h a (new)
(ha) mandatory psychiatric or medical referrals;
Amendment 171 #
Proposal for a directive
Article 14 – paragraph 1 – point i
Article 14 – paragraph 1 – point i
(i) failure to convert a temporary or non-standard employment contract into a permanent one;
Amendment 174 #
Proposal for a directive
Article 14 – paragraph 1 – point n a (new)
Article 14 – paragraph 1 – point n a (new)
(na) actual, threatened or attempted retaliatory actions;
Amendment 176 #
Proposal for a directive
Article 14 – paragraph 1 – point n b (new)
Article 14 – paragraph 1 – point n b (new)
(nb) obstruction or cancellation of retirement benefits.
Amendment 190 #
Proposal for a directive
Article 15 – paragraph 3
Article 15 – paragraph 3
3. Reporting persons 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 192 #
Proposal for a directive
Article 15 – paragraph 5
Article 15 – paragraph 5
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 193 #
Proposal for a directive
Article 15 – paragraph 7
Article 15 – paragraph 7
7. In addition to the exemption from measures, procedures and remedies provided for in Directive (EU) 2016/943, in judicial proceedings, including for defamation, breach of copyright, breach of secrecy or for compensation requests based on private, public, or on collective labour law, reporting persons shall have the right to rely on having made a report or disclosure in accordance with this Directive to seek dismissal of proceedings.
Amendment 194 #
Proposal for a directive
Article 15 – paragraph 8 a (new)
Article 15 – paragraph 8 a (new)
8a. Reporting persons shall have access to psychological support.
Amendment 201 #
Proposal for a directive
Article 19
Article 19
Member States mayshall introduce or retain provisions more favourable to the rights of the reporting persons than those set out in this Directive and shall establish reporting systems on national provisions, without prejudice to Article 16 and Article 17(2).
Amendment 202 #
Proposal for a directive
Article 20 a (new)
Article 20 a (new)
Article 20a Non-regression clause 1. The implementation of this Directive shall under no circumstances constitute valid grounds for reducing the general level of protection already afforded when reporting on breaches other than those mentioned in Article 1. 2. This Directive is without prejudice to any other rights conferred on reporting persons by other legal acts of the Union.