CYIL vol. 15 (2024)

CYIL 15 ȍ2024Ȏ WHISTLEBLOWER PROTECTION IN EUROPE BETWEEN GUJA AND THE 2019 EU … effective internal reporting mechanisms. However, following a proposal from the European Parliament, an amendment was included in the final version of the Directive in March 2019 which now treats internal and external reporting as essentially equivalent. The practical relevance of this difference is obvious since, in the light of Strasbourg case law, the whistleblower, before making information public, must carefully consider whether effective internal reporting channels are available. On the other hand, the Directive does not require that internal mechanisms be exhausted before external channels are used, even if they have been established in accordance with the Directive. 25 The second difference between Strasbourg case law and the Directive is related to the whistleblower’s motivation. The ECtHR has emphasized that the motive behind the whistleblower’s actions is a “determinant factor in deciding whether a particular disclosure should be protected or not” and that an act motivated by a personal grievance or a personal antagonism or the expectation of personal advantage, including pecuniary gain, would not justify a particularly strong level of protection. 26 Therefore, in the case of Langner v. Germany , 27 which concerned a dispute between a civil servant and a deputy mayor in Dresden, the ECtHR denied protection under Article 10 ECHR to a whistleblower whose motivation was questionable. According to the ECtHR, the applicant’s public statement was rather motivated by the applicant’s personal misgivings about his superior and his fear of losing his job. 28 The Whistleblower Directive does not contain such a condition. According to its recital 32, reporting persons should have reasonable grounds to believe, in light of the circumstances and the information available to them at the time of reporting, that the matters reported by them are true. This clause may serve as a safeguard against malicious, frivolous, or abusive reports. However, recital 32 also explicitly states that the motives of the reporting persons should be irrelevant in deciding whether they should receive protection. In other words, protection under the Directive is not excluded even in cases where the whistleblower is motivated by personal animosity or personal gain. The third difference concerns the subject of reporting. Whereas in Guja v. Moldova the ECtHR explicitly referred to the reporting (“signaling”) of “illegal conduct or wrongdoing in the workplace”, 29 in its subsequent case law the ECtHR extended the scope of protection to include the reporting of conduct that is legal but reprehensible. In the case of Heinisch v. Germany , the ECtHR found that the dissemination of information about the quality or deficiencies of institutional care is of vital importance with a view to preventing abuse. Thus, whistleblowers are protected under Article 10 ECHR also in cases where they do not report illegal actions. The approach of the EU Directive is comparatively narrow as protection is only granted to persons who report specific breaches of EU law. 30 According to Article 2 of the Directive, 25 See Articles 7–9 of the Directive on internal reporting channels and Articles 10–14 on external reporting channels. Public disclosures are dealt with by Article 15 of the Whistleblower Directive. 26 Guja v. Moldova , para. 77. 27 ECtHR, Langner v. Germany (Application no. 14464/11, Judgment of 17 September 2015). 28 Langner v. Germany , para. 47. 29 Guja v. Moldova , para. 72. 30 On the problematic scope of the EU Whistleblower Directive, see COLNERIC, N., GERDEMANN, S. Die Umsetzung der Whistleblower-Richtlinie in deutsches Recht – Rechtsfragen und rechtspolitische Überlegungen. HSI-Schriftenreihe (Band 34), Frankfurt am Main, 2020, p. 155.

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