Mose Apelblat

Last week the European Ombudsman announced that it had launched an inquiry into the internal rules for whistleblowing which the EU institutions are required to adopt as of 1 January 2014. While this might be seen as good example of the Ombudsman’s own-initiative investigations, the inquiry is limited in scope and misses the Ombudsman’s own role in whistleblowing protection.

Whistleblowing is usually defined as unauthorised disclosure or reporting of corporate information to people and media outside the organisation (external disclosure). Whistleblowing, however, can also take place inside the organisation when for example an employee reports to his manager that wrong-doing or malpractice has occurred (internal disclosure).

It has been a hot topic in the European Commission since 1999 when 20 commissioners were forced to resign following the disclosure of irregularities. A single person, Paul van Buitenen, “blowed the whistle” and alarmed the European Parliament, which in its turn expressed its non-confidence in the entire College of Commissioners.

Buitenen was later elected to the European Parliament. He has described and justified his whistleblowing in a book: “Blowing the whistle – one man’s fight against fraud in the European Commission”. His whistleblowing was effective but he and his family paid a price in terms of personal suffering and economic uncertainty.

Following this incident, the Commission adopted new rules in the internal staff regulations. An official shall not suffer any “prejudicial effects” on the part of the institution as a result of having communicated information concerning “possible illegal activity, incl. fraud or corruption”, provided that he acted “reasonably and honestly”.

However, this doesn’t apply to information disclosed to the official in the course of proceedings in legal cases, whether pending or closed. It’s also obvious from the rules that the Commission prefers internal disclosure.

Protection isn’t guaranteed if an official discloses information even to the European Parliament or the European Court of Auditors without previously having disclosed it to OLAF or to his own institution. That said, the situation is surely better than it used to be when there was no protection whatsoever.

To assess the effectiveness of whistleblowing regulation in the EU one would need to ask some questions. How often does whistleblowing achieve its declared objective of putting an end to wrong-doing? How often does the whistle-blower remain unharmed and protected against replacement, dismissal, or other forms of retaliation by the employer?

When an employee blows the whistle the attention will be drawn to him/herself rather than to the issue that needs to be corrected. A double burden of proof will most often be laid on the whistle-blower – to prove that the allegations are true and that his/she has acted in good faith.

Therefore the odds are heavily against the whistle-blower as the following quotation shows (Glazer, “Whistleblowing”, in Psychology Today, Aug 1986):

“If you have God, the law, the press and the facts on your side, you have a 50 – 50 chance of winning.”
The inquiry by the European Ombudsman will obviously not deal with these questions which are more appropriate for an external audit. The inquiry is limited to the implementation of a new paragraph (22 c) in the staff regulations.

It requires the EU institutions to put in place a procedure for the handling of complaints made by officials concerning the way in which they were treated after or in consequence of whistleblowing. The procedure shall include rules for the “protection of the legitimate interests” of the officials concerned and of their privacy.

Is this enough? The European Ombudsman draws the attention to its own draft decision on internal rules concerning whistleblowing. In this decision the Ombudsperson herself shall protect a whistleblower against any acts of retaliation or reprisal. However, this applies only for the employees in the European Ombudsman institution.

There is a growing awareness that employees, both in the public and private sector, need an external supervisory body to protect them against negative consequences if they have acted in good faith and used accepted and authorised channels for reporting on wrong-doing and irregularities.

Employees should try to avoid whistleblowing for the simple reason that it’s never in their best interest to get entangled in whistleblowing. Nor is it in the interest of employers to receive negative publicity on not having prevented an irregularity. But it would be wishful thinking to think that we live in the best of worlds where no whistleblowing will ever have to happen.

There is definitely a public interest in the protection of employees disclosing criminal offences committed by companies or public bodies, in particular when public funds are involved or when there is a clear danger to health, safety and environment. Such protection can be given by Ombudsman institutions, e.g. by rulings against adverse measures against the whistle-blower.

Whistleblowing protection isn’t only an issue in the EU institutions but even more so in the member states where most corruption occurs. A study in 2012 by Transparency International (“Money, politics, power – corruption risks in Europe”) showed that the vast majority of EU member states haven’t introduced whistle-blower protection legislation.

Legislation, where is exists, reflects a piecemeal approach and is often inadequate. An EU directive on whistleblowing protection legislation might be required.

The best known example of legislation is the Public Interest Disclosure Act (PIDA) in United Kingdom. The act entered into force in 1999 and has been described as one of the world’s broadest whistleblowing laws. On the positive side is also the current discussion in the new network of Ombudsman institutions in the candidate countries to include whistleblowing protection among their tasks.

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