CYIL vol. 15 (2024)

CYIL 15 ȍ2024Ȏ WHISTLEBLOWER PROTECTION IN EUROPE BETWEEN GUJA AND THE 2019 EU … 2. the public interest in the information disclosed; 3. the authenticity of the information disclosed; 4. the detriment to the employer; 5. whether the applicant acted in good faith; and 6. the severity of the sanction. Applying these criteria to the Guja case, in which protection was sought by an employee of the press department of the Moldovan Prosecutor General’s Office, the Grand Chamber concluded that the complainant’s freedom of expression had been violated. In its subsequent case law, the ECtHR has applied the Guja criteria to grant protection to both private 5 and public employees. 6 It has dealt with cases concerning, for example, illegal practices of the Romanian intelligence service, 7 mismanagement of public funds in a school, 8 undue pressure on a judge, 9 deficiencies in the care for the elderly, 10 inappropriate medical treatment, 11 problems in the procurement of goods transport, 12 serious concerns about the safety of the electricity grid, 13 deficiencies in the management of a public health facility, 14 corruption and plagiarism in a university, 15 and suspicions of active euthanasia in a hospital. 16 However, the development of the ECtHR’s jurisprudence has shown that the circumstances of a particular reporting can be very different and often do not fit into a simple solution model. While each of the six criteria set out in Guja may be reasonable in itself, in the light of practical application there may be a number of other relevant circumstances that need to be given due consideration. These circumstances have a significant impact on the weight given to each criterion. Indeed, the ECtHR itself has departed from its own Guja model on several occasions. 17 In the case of Balenovic v. Croatia , when the Croatian government attempted to prove that all six Guja criteria had been properly met, the ECtHR concluded that a distinction had to be made between a case where the legitimate aim of the interference was to prevent the disclosure of information received in confidence (as in Guja ) and a case where the legitimate aim was to protect the reputation and rights of others (as in Balenovic ). Therefore, in the case 5 ECtHR, Heinisch v. Germany (Application no. 28274/08, Judgment of 21 July 2011), Sosinowska v. Poland (Application no. 10247/09, Judgment of 18 October 2011), Balenovic v. Croatia (Application no. 28369/07, Judgment of 30 September 2010), Bathellier v. France (Application no. 49001/07, Judgment of 12 October 2010), Bargao a Domingos Correia v. Portugal (Applications no. 53579/09 a 53582/09, Judgment of 15 November 2012 ). 6 ECtHR, Bucur a Toma v. Romania (Application no. 40238/02, Judgment of 8 January 2013 ) , Kudeshkina v. Russia (Application no. 29492/05 , Judgment of 26 February 2009). 7 ECtHR, Bucur a Toma v. Romania (Application no. 40238/02, Judgment of 8 January 2013 ). 8 ECtHR, Marchenko v. Ukraine (Judgment of 19 February 2009). 9 ECtHR, Kudeshkina v. Russia (Application no. 29492/05 , Judgment of 26 February 2009). 10 ECtHR, Heinisch v. Germany (Application no. 28274/08, Judgment of 21 July 2011). 11 ECtHR, Sosinowska v. Poland (Application no. 10247/09, Judgment of 18 October 2011). 12 ECtHR, Balenovic v. Croatia (Application no. č. 28369/07, Judgment of 30 September 2010). 13 ECtHR, Bathellier v. France (Application no. 49001/07, Judgment of 12 October 2010). 14 ECtHR, Bargao a Domingos Correia v. Portugal (Applications no. 53579/09 a 53582/09, Judgment of 15 November 2012. 15 ECtHR, Aurelian Oprea v. Romania (Judgment of 19 January 2016). 16 ECtHR, Gawlik v. Liechtenstein (application no. 23922/19, Judgment of 16 February 2021). 17 For more details, see SCHEU, H. C. Pitfalls in Implementing the EU Whistleblower Directive. Wroclaw Review of Law, Administration & Economics, vol. 14, no. 1, 2024, pp. 1–17.

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