CYIL vol. 15 (2024)

HARALD CHRISTIAN SCHEU Introduction

Over the past two decades, the protection of whistleblowers has become a major concern of European human rights law. In its first whistleblower case, Guja v. Moldova , the Grand Chamber of the European Court of Human Rights (ECtHR) held in 2008 that a civil servant’s disclosure of unlawful conduct or wrongdoing in the workplace should, under certain circumstances, enjoy protection under the European Convention on Human Rights (ECHR). At the political level, the Parliamentary Assembly of the Council of Europe (CoE), in a Resolution of April 2010, recognized that whistleblowing is an opportunity to strengthen the fight against corruption and mismanagement and called on CoE Member States to develop comprehensive whistleblowing legislation. 1 Nine years later, in October 2019, the Parliamentary Assembly noted with satisfaction that its 2010 invitation had been followed by more than 20 member states, which had since adopted national legislation that either on a general level or at least partially protected whistleblowers. By 2019, however, it had become clear that the main initiative in the field of whistleblower protection had shifted from the Council of Europe to the competent bodies of the European Union, which were at that time finalizing a new EU Directive on whistleblower protection. Indeed, the Parliamentary Assembly noted these efforts and encouraged CoE Member States, which are also EU Member States, to transpose the new Directive into their national legislation as soon as possible. On 23 October 2019, the European Parliament and the Council finally adopted Directive 2019/1937 on the protection of persons who report breaches of Union law. 2 Since the EU has taken the initiative in the field of whistleblower protection, it is not surprising that, from the perspective of national legislation, its Directive will serve as the main point of reference in the member states. In fact, the CoE Resolutions have played virtually no role in the process of transposing the Directive into national law. Such an approach is certainly understandable when we consider that the EU standard is based on a legally binding Directive and involves relatively strict enforcement procedures, whereas the Council of Europe has to rely mainly on the political and moral authority of soft law documents. Nevertheless, it should not be forgotten that the standard of whistleblower protection developed by the ECtHR has not simply been replaced by the new EU Directive and national implementing legislation. At first glance, it is clear that some key elements of the ECtHR’s case law on whistleblower protection differ from the EU standard. Given that the ECtHR issues judgments that are binding on EU Member States, it is surprising how little attention has been paid to the problem of potentially divergent standards. In any event, the problem of different rules for whistleblowers in Strasbourg and Brussels remains an issue open to discussion and future clarification. 1 For a brief overview, see LEWIS, D. The Council of Europe Resolution and Recommendation on the Protection of Whistleblowers. Industrial law journal . 2010, vol. 39, no. 4, pp. 432–435. 2 In some academic literature the EU Whistleblower Directive has been praised as a milestone of human rights protection. See, for example, KAUFMANN, J., HÄFERER, K., GRIMHARDT, K. The new EU Whistleblowing Directive. Computer Law Review International . 2020, 21 (1), pp. 14–17. For a more critical assessment, see TEICHMANN, Fabian Maximilian a WITTMANN, Chiara. Whistleblowing: procedural and dogmatic problems in the implementation of Directive (EU) 2019/1937. Journal of financial regulation and compliance . 2022, vol. 30, no. 5, pp. 553–566.

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