The New EU Whistleblower Directive: The 27 member-states of the European Union must adopt new whistleblower laws by December 17, 2021. Each member-state is now separately debating how to implement whistleblower protections under its own laws.
International whistleblower law firm Kohn, Kohn & Colapinto, LLP has long supported enhanced whistleblower protections in Europe. While the scope of the EU Directive was under debate within the European Parliament, KKC submitted a comprehensive proposal for the Directive.
A KKC partner testified in the EU Parliament regarding the need to protect European employees who reported financial crimes to directly to law enforcement agencies.
Currently, KKC is taking the lead in promoting that all 27 member-states of the EU implement aggressive whistleblower protections. KKC drafted a 27-page memo addressing all of the major issues facing whistleblowers and provided specific recommendations for legislative action. This proposal has been officially filed with all EU member-states.
Additionally, KKC partners helped draft a follow-up submission to EU nations urging them to include climate-related crimes and frauds to the definition of a protected disclosure under the law.
KKC has also joined in a coalition of advocacy groups working to ensure that Europe finally enacts laws that will work in practice and provide, for the first time, real whistleblower protections to the people in Europe. Among the groups we are now working with include the National Whistleblower Center, Whistleblowing International, and the European Center for Whistleblower Rights.
KKC has also participated in conferences and other public meetings related to the Directive, including a major international conference.
Because the Directive sets forth the “common minimum standards” for whistleblower protection required by each European Union (“EU”) Member State, implementation of the Directive creates a unique opportunity for Member States to extend protections beyond these minimum standards.
KKC will continue to aggressively participate in the international movement within Europe and other nations to promote laws that create robust whistleblower programs that protect whistleblowers, incentivize the reporting of crimes or regulatory violations, and enable law enforcement agencies to effectively combat corruption.
Because the Directive sets forth the “common minimum standards” for whistleblower protection required by each European Union (“EU”) Member State, the Directive plainly permits Member States to extend protections beyond these minimum standards. Therefore, when implementing the Directive each Member State has an opportunity to create robust whistleblower programs that protect whistleblowers, incentivize the reporting of crimes or regulatory violations, and enable law enforcement agencies to effectively combat corruption.
In essence, Kohn, Kohn & Colapinto, LLP’s recommended best practices include:
- Expanding whistleblower protections to cover disclosures permitted under international anti-corruption conventions signed by Member States;
- Adopting language and procedures that have proven effective in protecting whistleblowers when implementing Articles 6-7, 11, 14-16, 19-21, and 23-24 of the Directive;
- Narrowly interpreting Article 22 of the Directive in order to ensure that whistleblowers are not chilled from making disclosures and their confidentiality is maintained; and
- Enacting whistleblower reward laws to combat specific legal violations, including foreign bribery, money laundering, tax evasion, government procurement fraud, and ocean pollution.
Kohn, Kohn & Colapinto’s 29-page comment going over, in detail, what the EU nations need to include in order to enact successful whistleblower laws.
What You Should Know
This directive, when applied, may fix some of these glaring holes in current European whistleblower laws. For example, this directive will require protection for any persons who disclose information to which they had privileged access and will protect whistleblowers who report internally, externally, or publicly. This directive also includes a more comprehensive list of retaliatory actions that are prohibited. Therefore, legislation enacting the Whistleblower Directive should ensure that all whistleblowers who report corporate fraud will receive more extensive protection.
Nevertheless, while this directive requires that a workplace whistleblower have access to legal remedies and compensation, there is no provision providing rewards for successful disclosures.
Therefore, when it comes to global financial institutions with a presence in the United States, whistleblowers are better off reporting to the United States Securities & Exchange Commission (“SEC”). The SEC Whistleblower Program, which contains comprehensive anti-retaliation regulations and unique whistleblower reward provisions, remains superior to most European whistleblowing regimes.
The U.S. Laws Can Be Used Today!
Whenever a major corruption scandal is exposed by a whistleblower it is absolutely necessary to screen that case and determine whether the whistleblower may be covered under the major U.S. whistleblower reward laws, such as the Foreign Corrupt Practices Act, the False Claims Act, the Internal Revenue Act, the Securities Exchange Act and the Commodity Exchange Act. These U.S. laws have expansive extraterritorial application. However, the ability of foreign nationals to qualify for a reward under U.S. law is not widely understood. This can cause whistleblowers to lose the opportunity to obtain multi-million-dollar rewards and stifle the ability of law enforcement officials to obtain access to the evidence they need to hold fraudsters accountable.
The U.S. laws also present a model for other nations to follow. It is incumbent upon anyone with information on frauds and corruption to understand how these laws work, how they can safely report large scale economic crimes.
Protect Yourself! Learn U.S Laws
Ireland, We’re Here For You
Kohn, Kohn & Colapinto, LLP believes that its recommendations are compatible with Ireland’s current anticorruption regime, which is uniquely strong within the EU. In Ireland, whistleblowers are protected by a fairly comprehensive series of laws that include, amongst other subjects, persons reporting: breaches of the Ethics Acts; violations of competition law; matters relating to workplace health & safety issues; corruption or malpractice amongst police; threats to the welfare of patients in health care; threats to consumers; breaches relating to chemicals; and violations of charities law.
Kohn, Kohn & Colapinto, LLP looks forward to a fruitful partnership with the country of Ireland founded on mutual goals of protecting whistleblowers and providing for the public welfare through the detection and disgorgement of fraud.