Debating a European Directive on whistleblowing in Brussels

26th June 2017

Our Head of Policy Andrew Pepper-Parsons was in Brussels this month (June) taking part in two separate, and quite different events debating whether there should be a European Directive on whistleblowing.

Europe is keen to hear the UK experience on whistleblowing as they deliberate on what they should do after the controversy the Lux Leaks revelations, trial and convictions. This is not really that surprising given the Public Interest Disclosure Act (PIDA) is nearly 20 years old and last year saw 1, 436* of people rely on it at tribunal.

On 6 June in Brussels I took part in a panel Q&A held by Accountancy Europe for an event titled “Making Whistleblowing Work for Everyone!” There were three panels, the first was a whistelblowers experience from the financial sector, the second was a short presentation from the legislators, a representative from the European Commission and an MEP representing the European Parliament view, outlining their views on a future directive. The Commission Official gave very little away in terms of their intentions for any future directive (unsurprising given they have only just closed a public consultation and considering the various responses) whereas the MEP was more strident in pushing her view that Lux Leaks case showed the need for a European response.

I was on the third and final panel called “Making it Work” talking about whistleblowing on a more practical level with researchers, experts and practitioners. I answered questions on our exciting new benchmarking project for internal whistleblowing arrangements and on how the employment tribunal is grappling with the public interest test.

The most interesting contribution though came from Eric Ben-Artzi a Deutsch Bank whistleblower who reported fraud at the bank to the US Securities and Exchange Commission in 2008. The bank was fined $55 million and Ben-Artzi was entitled to a portion of the fine through a whistleblowing reward scheme. Even though Ben-Artzi had been forced out of the bank and suffered for raising his concerns, he refused the reward on the basis that the real victims were the shareholders and they would receive nothing from the fine. His overriding message was a simple one which was whistleblowing laws need to be implemented robustly, he believes the US has some good protection on paper but it’s implementation meant the wrong incentives were in place which did not change the behaviour of those at the most senior positions within financial services. Accountancy Europe produced a wide ranging debate on whistleblowing, a great way to be introduced to the topic.

The next day I was invited to an experts workshop arranged by the European Commission to discuss the options for the EU directive. The workshop drew together academics, lawyers and civil society experts in whistleblowing from Britain, Ireland, France, and Holland and sat them in a room with EU Commission officials who are deciding whether there needs to be European wide protection, and what form this should take.

The workshop was a lively discussion of various issues including the problems a directive would resolve, the legal basis which could be used to justify an EU response and of course the specifics of the protection that should be included in any law. There was a lot of debate over the wisdom of including a public interest test in the directive; our view is that the inclusion of such a test can cause more problems than they solve which in European context may well be even more problematic given the different legal traditions and jurisdictions.

My conclusion from both events is whistleblowing and the protection of whistle-blowers is now seen as part and parcel of functioning democracy, there is though a lively debate on the need for and potential form of a directive on whistleblowing protection. There appears to be no consensus among the various interested parties and political actors as to a way forward while everyone waits for what comes out of the European Commission’s consultation and deliberations.

Andrew Pepper-Parsons