CYIL vol. 15 (2024)

CYIL 15 ȍ2024Ȏ WHISTLEBLOWER PROTECTION IN EUROPE BETWEEN GUJA AND THE 2019 EU … In this article, we briefly highlight the key differences between the standards established by the Strasbourg jurisprudence on the one hand and the EU Directive on the other. In light of the recent judgment of the Grand Chamber in Halet v. Luxembourg , the question arises whether the ECtHR is prepared to adapt its concept of whistleblower protection to the conditions set out in the Directive. In other words, will the ECtHR interpret Article 10 ECHR in line with the new elements of EU whistleblower law? Or will the ECtHR rather insist on its own different approach? This would mean that the Strasbourg Court could put EU Member States in a very uncomfortable situation, as strict implementation of the EU Directive could lead to violations of the ECHR. 1. Different European standards of whistleblower protection In this chapter we will focus on the main differences between whistleblower protection under the Strasbourg case law and the EU Whistleblower Directive. However, before looking at the diverging elements of protection, it is worth considering whether both approaches share the same common ground of human rights protection. 1.1 The human rights of whistleblowers as a common basis of protection While the case law of the ECtHR makes it absolutely clear that whistleblower protection is based on specific human rights norms (Article 10 ECHR), 3 the EU Directive builds upon a complex interplay of human rights aspects and other objectives. In its recital 2, the EU Directive states that “reports and public disclosures by whistleblowers are one upstream component of enforcement of Union law and policies” as they “feed national and Union enforcement systems with information, leading to effective detection, investigation and prosecution of breaches of Union law, thus enhancing transparency and accountability”. The preamble of the Directive also points out that effective whistleblowing can contribute, for example, to general product safety (recital 8), transport safety (recital 9), environmental protection (recital 10), or the functioning of the internal market (recital 18). The Directive’s treatment of human rights aspects is ambivalent. On the one hand, whistleblowing is presented as a means to expose human rights violations, in particular with respect to privacy and personal data protection (recital 14); on the other hand, the fundamental rights of the whistleblowers themselves need to be protected. Recital 31 therefore refers to the right to freedom of expression as enshrined in Article 11 of the EU Charter of Fundamental Rights and Article 10 of the ECHR. It also explicitly confirms that the Directive “draws upon the case law of the European Court of Human Rights” on the right to freedom of expression. One might say that such a clarification closes the circle between the EU standard and the Strasbourg standard of protection. However, when we look at the normative part of the EU Directive, it becomes less clear what it means to “draw upon” the case law of the ECtHR. Is the EU Directive to be interpreted in such a way as to ensure full compliance with the requirements of the Strasbourg jurisprudence? Or, by using the term “draws upon”, does

3 For a general overview of the complex interaction between whistleblowing and human rights protection, see SALORANTA, Juho. The EU Whistleblowing Directive: An Opportunity for (Operationalizing) Corporate Human Rights Grievance Mechanisms? Online. European business organization law review . 2021, vol. 22, no. 4, pp. 753–780.

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