Three years post-transposition: lessons, challenges, and tools for enhanced whistleblower protection
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Nathalie de Montigny, the lawyer who successfully defended a parliamentary assistant reporting a case of harassment involving a Member of the European Parliament (MEP), considers that a specific and comprehensive framework of rules for whistleblower protection within the European Parliament is still needed. Montigny, Founding Partner at the law firm Lexentia, offered her insights during the European Whistleblowing Institute’s online event “Three years post transposition: lessons for protection of whistleblowers?”, organized under BRIGHT Project, on December 12, 2024.
Montigny regrets the specific conditions of parliamentary assistants who “serve and please one single individual to whom they are assigned to and who retains the power to terminate their career within the European Parliament”. Because of this, parliamentary assistants may not benefit from enhanced protection through an exceptional framework that deviates from the usual standard rules applicable to this staff category.
In order to improve the situation, Montigny suggests a set of alternatives, including providing priority to whistleblowers over external candidates if a position is available, re-assignment to other positions even if this requires signing a new contract, and, at the “very minimum”, a specific compensation scheme for the loss of a chance to continue a career within the institutions.
Montigny remarked: “The best practices are clearly not to be found in the EU employment scheme and I’m not sure they would pass the test when considering the effectiveness of whistleblower protection.”
Implementation issues: awareness and incentives
Speaking about the transposition to national laws of the Whistleblower Directive, Simon Gerdemann, Head of the Chair for Commercial and Media Law at the University of Göttingen and EWI Fellow, noted that, in most EU Member States, the biggest issue is awareness: “When we have surveys asking employees about whether they know about whistleblower protection, in most sectors they don’t know what this is.”
Another significant issue highlighted by Gerdemann is the lack of incentives for employers: “Even those employers who comply with the Directive may not have incentives to spread the word. What that means in practice is that the work of NGOs remains absolutely critical to inform the public about whistleblowing laws and protection and to change the dynamic within the companies because legal measures cannot protect people from everything.”
The incentive that has been most effective in nudging companies to establish robust internal reporting channels is the fact that whistleblowers can bypass their employer’s reporting channels and go directly to their national competent authority. “Even those companies who are not intrinsically motivated to be legally compliant in the best way possible will be afraid that their employees will go to a whistleblowing authority if their internal procedures are not appealing enough”, noted Gerdemann.
Gender-focused whistleblowing initiatives still in early stages
Kate Kenny, Professor of Business and Society at the University of Galway and partner in BRIGHT Project, shared her report “Stakeholder mapping and civil society initiatives focusing on gender and whistleblowing”, co-authored by Taymi Milán. The report explores whether the protection against reprisals provided by the Whistleblower Directive takes into account specific characteristics of workers, including gender.
The answer is not satisfactory: out of the 27 actors with whistleblowing initiatives mapped by Kenny and Milán, only seven offer specific services considering gender as a specific aspect of whistleblowing. Kenny concluded that gender-focused whistleblowing initiatives are in the early stages and that organizations tend to link whistleblowing to a global governance agenda such as anti-corruption, press freedom, digital rights, and human rights.
Of the three types of approaches identified by Kenny and Milán, effective protection and assistance is the least developed of all. “While some organizations refer whistleblowers to specialized services, such as free legal assistance and psychosocial support, there is a significant gap in the availability of comprehensive services with a gender focus. More robust, integrated services are needed to protect and support whistleblowers effectively”, concluded Kenny.
Honest self-assessment encouraged
Wim Vandekerckhove, Professor of Business Ethics at EDHEC Business School and also a partner of BRIGHT Project, presented SUSA – Speak-Up Self-Assessment, a free online tool that can be used anonymously to measure the quality of organizational speak-up channels and culture. Noting that the requirements of the Whistleblower Directive are “very minimal”, Vandekerckhove said: “You can imagine organizations meeting those requirements and still messing it up. That’s bound to happen to organizations that are new to this.”
“[That’s why] we have developed a very simple and freely available online tool that integrity professionals can use to self-assess against the ISO standards and how well they align with the EU Directive”, Vandekerckhove said. The SUSA tool is currently available in seven languages and at the end of the self-assessment – which lasts around 45 minutes – the user is provided with a number of scores on five dimensions for ISO standard, another score for how well they align with the EU Directive, an estimate of how they perceive their organizational culture, and a guidance document.
Stressing the anonymous nature of the tool, Vandekerckhove encouraged users to be as honest as possible: “It’s anonymous. We know the assessment but we don’t know it’s yours. We have no way of knowing who took the assessment. We don’t track IP addresses, we don’t ask for names nor email addresses.”
This event is part of BRIGHT Project 101143234 – which is co-funded by the European Commission.
