CYIL vol. 15 (2024)

HARALD CHRISTIAN SCHEU the material scope covers the reporting of illegal conduct in such areas as public procurement, financial services, product safety, transport safety, protection of the environment, nuclear safety, food and feed safety, and public health. Actually, many EU Members States have extended the scope of protection beyond the standard defined in Article 2 of the Directive. 31 But none of them protect the reporting of lawful conduct. Therefore, it is obvious that cases of reporting legal but socially problematic or immoral conduct may be protected under Article 10 ECHR, but not under the Directive and the relevant transposing laws. 32 Last but not least, there is another aspect related to the principle of proportionality, which requires a careful balancing of the interests involved. Already in the case of Guja v. Moldova , the ECtHR pointed out that in this balancing exercise the damage suffered by the employer must be carefully weighed. 33 Thus, in the case of Gawlik v. Liechtenstein , the ECtHR, while not questioning that there was a public interest in the disclosure of information about the alleged practice of active euthanasia in a public hospital, concluded that the public interest in receiving such information did not outweigh the interest of the employer and the chief physician in protecting their reputations. 34 By contrast, the EU Directive does not presuppose such a proportionality test, as it refers only to the reputation and damage suffered by the whistleblower. Therefore, it seems irrelevant under the Directive whether a small private employer is in a more vulnerable position than a well-connected employee whose concerns are supported by an effective organizational structure. 2. The case of Halet v. Luxembourg . A (missed) opportunity to reconcile Strasbourg case law with the EU Directive For the purpose of this study, we can conclude that despite the lip service paid by the relevant EU bodies to the importance of the ECHR and Strasbourg jurisprudence, the EU Whistleblower Directive clearly deviates from the standard set by the ECtHR in four key respects. It was therefore very interesting to see how the ECtHR would react to the adoption of the Directive and its implementation into the national legal orders of EU Member States. Indeed, already in 2020, Dimitrios Kafteranis and Robert Brockhaus called upon the Court to review its case law and bring it in line with the Directive in order to ensure the same level of protection under Article 10 ECHR in all CoE Member States. They argued that the Directive is more whistleblower-friendly and guarantees a higher level of protection compared to the ECtHR case law. 35 After the adoption of the Directive, the case of Halet v. 31 On the problem of gold-plating in the context of the Whistleblower Directive, 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. 32 On the specific problems relating to the transposition of the EU Whistleblower Directive, see GERDEMANN, S. COLNERIC, N. The EU Whistleblower Directive and its Transposition: Part 1. European labour law journal , 2021, 12(2), pp. 193–210. 33 Guja v. Moldova , para. 76. 34 Gawlik v. Liechtenstein , paras. 79–80. 35 KAFTERANIS D., BROCKHAUS R., Time to reconsider Strasbourg’s whistleblower case law , https://europeanlawblog. eu/2020/09/21/time-to-reconsider-strasbourgs-whistleblower-case-law.

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