CYIL vol. 15 (2024)

CYIL 15 ȍ2024Ȏ WHISTLEBLOWER PROTECTION IN EUROPE BETWEEN GUJA AND THE 2019 EU … We can therefore conclude that the Grand Chamber in Halet v. Luxembourg not only ignored the potential impact of the Directive on European whistleblower protection, but also took the opportunity to widen the gap with regard to some criteria. This certainly was no accident. The complete ignorance of the EU Directive in the Court’s deliberations sends a strong message not only to the States Parties of the ECHR but also to the European Union and its Court of Justice. The Grand Chamber has opened the door for a future ruling that the implementation of the Directive by national authorities may be contrary to what is required by the ECHR. 43 The judgment in Halet v. Luxembourg can be read as a message to the EU legislature. It is obvious that the ECtHR does not consider the Whistleblower Directive as a factor that should lead to a change of the Guja model. On the contrary, it seems that the EU legislature, according to the Grand Chamber, has not sufficiently and correctly incorporated the Guja criteria in its legislation. The message to the EU Court of Justice may be even more relevant. In situations where the interests of the employee, their superior(s) and the employer conflict, the solution must be based on the balancing of those interests rather than on the mechanical application of a piece of legislation that may disproportionately prioritize law enforcement interests over the human rights of private individuals. The ECtHR has traditionally sought to strike the right balance between competing interests, focusing on the specific circumstances of the case. The Guja model may not be fully workable in all cases, and this can be seen as the main reason for the partial inconsistency of subsequent ECtHR jurisprudence. However, this flexible model is still a better tool for dealing with complex relations in the workplace than the rigid model introduced by the EU Directive. It will be up to the EU Court of Justice to find a way to reconcile the application of the EU Directive with the standards developed by the ECtHR. In this light, the protection of whistleblowers may open a new round in the conflict between the ECtHR and the EU Court of Justice. Last but not least, the judgment in Halet v. Luxembourg can be read as a message to the EU Member States. In addition to their undoubted obligation to implement EU law effectively and correctly, they must also act in accordance with Strasbourg jurisprudence. This means not only that they should prevent violations of the ECHR at the stage of application of EU law, but also that they should refuse to consent to EU Directives that are not fully in line with the case law of the ECtHR. 3. Conclusions In this article, we have focused on the standards of whistleblower protection developed by the ECtHR and EU legislation. Comparing the protection criteria established by the ECtHR in Guja v. Moldova with the model of the EU Whistleblower Directive, we see that, on the one hand, whistleblower protection under both regimes is based on some common

43 Vojtěch Hanzal predicted that there will be cases in which a whistleblower will be protected under Article 10 of the ECHR, but not under the national legislation transposing the EU Directive. He noted that such situations will be “detrimental to the legal certainty of both the whistleblower and the persons being reported”. HANZAL, V. Discussion on the European Court of Human Rights’ Decision in the Case of Halet v. Luxembourg and Its Implications. Societas et Iurisprudentia . 2023, vol. 11, no. 3, pp. 56–69, 68.

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