CYIL vol. 15 (2024)

HARALD CHRISTIAN SCHEU the preamble refer to the ECHR as a source of inspiration that can be modified or partially replaced by new EU rules? The latter understanding seems to be supported by recital 109 of the preamble, which states that it is essential that the Directive be implemented in accordance with the EU Charter of Fundamental Rights, and in particular Article 11 thereof. As recital 109, in addition to the freedom of expression and information, also lists rights such as the right to protection of personal data, the freedom to conduct a business, the right to a high level of consumer protection, the right to a high level of human health protection, the right to a high level of environmental protection, the right to good administration, the right to an effective remedy, and the rights of defense, it opens a wide space for legal considerations that go beyond Article 10 ECHR and the relevant ECHR case law. In light of these ambiguities and potentially divergent standards, we need to briefly recall how whistleblower protection has been conceived by the ECtHR. 1.2 The Guja model of whistleblower protection and subsequent ECtHR case law The ECtHR’s whistleblower jurisprudence is based upon the freedom of expression which is enshrined in Article 10(1) ECHR. It includes the freedom to hold opinions and to receive and impart information or ideas without interference by public authorities and regardless of frontiers. There is no doubt that Article 10 ECHR also applies to whistleblowers who try to draw attention to unlawful behavior within a private or public organization. Article 10(2) ECHR lists the conditions under which a Contracting State may restrict freedom of expression, specifically on the basis of law, in accordance with the principle of proportionality 4 and in the interests of national security, territorial integrity or public safety, the prevention of disorder or crime, the protection of health or morals, the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary. In short, Article 10 ECHR, on the one hand, covers a broad range of expressions, including public speech by employees, and, on the other hand, gives States Parties a relatively wide margin of discretion to impose restrictive measures in order to protect legitimate interests, including those of employers. Competent authorities, such as national courts, must strike a fair balance between the interests of reporting employees and the legitimate interests of the employers concerned. This is certainly no easy task. It is therefore not surprising that when the European Court of Human Rights had to consider the impact of Article 10 ECHR on the protection of whistleblowers for the first time in Guja v. Moldova , the Chamber relinquished jurisdiction in favor of the Court’s Grand Chamber. The Chamber found that the first whistleblower case raised a serious question affecting the interpretation of the Convention within the meaning of Article 30 ECHR. In its 2008 judgment, the Grand Chamber attempted to provide useful guidance to employers and competent authorities dealing with whistleblowing cases. Ultimately, it developed the notorious model of whistleblower protection based on a total of six criteria (often referred to as the “Guja criteria”): 1. whether the applicant had alternative channels for disclosure;

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4 According to Article 10(2) ECHR, the interference has to be necessary in a democratic society.