Whistleblowing- a key issue for all EU institutions and bodies
At the starting point of many fraud and corruption cases that have been exposed are most often…whistle-blowers. In the EU institutions and bodies, men and women who have the courage to speak up when they find something suspicious that most likely is an illegal act against the organisation they work for are proected by law. Nevertheless, becoming a whistle-blower requires courage and there are also certain rules and procedure that must be complied with by the whistle-blower. Christophe Lesauvage, principal manager in the Legal Service of the ECA, covers such questions, explaining why these rules are essential to enable whistle-blowers to speak up when needed and what specific arrangements are at the ECA.
By Christophe Lesauvage, ECA Legal Service
What is whistleblowing?
For the EU institutions and bodies, the possibility of whistleblowing is covered by the Staff Regulations of Officials of the EU and Conditions of Employment of Other Servants (referred to below as the ‘Staff Regulations’). EU organisations falling under the Staff Regulations can provide further details on whistleblowing through their internal rules. Alongside Article 22a of the Staff Regulations, therefore, whistleblowing at the ECA is governed by our internal rules on the forwarding of information in the event of serious irregularities. The mechanism was set up with the 2004 reform of the Staff Regulations to prevent and detect breaches of EU law that may adversely affect the interests of the European Union.
The ECA’s internal rules define ‘serious irregularity’ as any illegal activity, including suspected fraud or active or passive corruption, to the detriment of the EU’s interests, or any serious professional misconduct by a Member or a staff member, a seconded national expert, a trainee of an institution, an economic operator participating in an ECA public procurement procedure or a member of the staff of that economic operator, or a contractor of the ECA or a member of its staff.
Whistleblowing must be information about someone or something. This therefore excludes the reporting of rumour or hearsay, the origin of which is unknown or uncertain and the veracity of which is doubtful. Harassment, bullying and sexual harassment do not lend themselves to whistleblowing because they should be reported in the first instance by the person who experiences them and through specially established formal or informal procedures.
Irregularities which auditors find in the course of their audit must be reported via a specific internal channel. This is not considered whistleblowing but is an audit task carried out in accordance with the audit methodology defined by the Court.
Available whistleblowing channels
Whistleblowing channels follow the line of command and allow communication exclusively within the institution or institutions. In the case of the ECA, whistleblowers are required to send information concerning a serious irregularity to their immediate superior, who must in turn forward it to the Secretary-General. If there is a conflict of interest, the information should be sent directly to the Secretary-General or the President.
This purely internal reporting channel is preferred by the Staff Regulations and by the internal rules on the basis that the top management of the institution is best placed to rapidly investigate and remedy the problems encountered. The internal channel makes it possible to avoid making public suspicions of irregularity within the institution. This is a way of protecting the institution’s image. It also contributes to the general objective of protecting the EU’s interests.
Not an option but a duty
Certain channels outside the institution are also intended to receive information from whistleblowers. They include OLAF, the EU Ombudsman, the Presidents of the EU institutions and the inter-institutional panel specialising in financial irregularities referred to in Article 143 of the Financial Regulation. Reporting to journalists or the judicial authorities of a Member State is not in line with the rules in force at the ECA.
The whistleblowing system was established as an obligation for officials and other staff. In other words, whistleblowing is not an option but a duty. Persons who are aware of a serious irregularity and do not report it would normally be liable for failing to comply with their obligations under the Staff Regulations.
While making whistleblowing compulsory may be seen as a way of encouraging denunciations, it is also possible to see things from a different perspective. Being witness to serious irregularities or part of a system which is malfunctioning because of the behaviour of some individuals, but doing nothing about it, could amount to non-assistance to an institution in danger and in some cases even to complicity in wrongdoing.
Since the system was designed to prevent the institution from suffering any human, material or reputational damage, reporting should be done in accordance with the principle of proportionality: is whistleblowing the best way to protect the interests involved? In some cases, rather than raising the alert, it is advisable to speak to the alleged offender with a view to asking them to correct their attitude or repair any damage resulting from the irregularity. If the person stops their behaviour, the whistle blowing system has met its objective. The purpose is not to punish the person, but to stop the conduct. Any further consequences (sanctions, disciplinary procedures, etc.) are the responsibility of the institution or competent authorities.
Thus whistleblowing is ethical only if it is aimed at safeguarding the public interest and done selflessly with a view to making a positive contribution to the rule of law. Reporting should be done not only in good faith — the person doing the reporting should believe that the information they give is accurate — but it must also be free from any personal motivation of gain, harm or revenge. Informants who supply incorrect information — when they knew or should have known that it was incorrect — may be called to account under disciplinary, civil or criminal law for defamation.
In addition to the obligation to follow internal transmission channels, whistleblowing is subject to several formal requirements. Reports must be made in writing, using a form available on the ECA’s internal network and website.
Protecting the whistleblower
Can an alert be anonymous? In principle, the answer is no. Any person submitting information on the appropriate form must be identified at the time of transmission. That person then becomes an ‘informant’ within the meaning of the internal rules. This requirement is justified in terms of system efficiency and ethics. On the one hand, it affords whistleblowers the protection which is the keystone of the system. Without protection, there would be very little reporting since whistleblowers would fear professional or personal retaliation. However, if informants do not identify themselves, the institution will be unable to discharge its duty to protect them. Moreover, the ethical nature of anonymous submissions is far from clear. An informant who wants to remain hidden when they have no reason to fear reprisals may not be acting solely in the interests of the institution and with the conviction that their allegations are justified.
The informant’s identity must, however, be kept strictly confidential unless they personally authorise disclosure or if that is a requirement in the context of criminal proceedings that may result from a report of serious irregularities. In principle, neither OLAF nor the Court of Justice of the EU can require that an informant’s identity be disclosed.
The European Data Protection Supervisor (EDPS) has drafted guidelines on the protection of personal data when processing an alert in an ethical alert procedure. Provided that the conditions for forwarding the information laid down in the ECA’s internal rules have been complied with, and in particular that the informant has acted in good faith, protection of the whistleblower is guaranteed even if the information subsequently proves to be inaccurate.
EU Directive on the protection of whistleblowers
Within the EU, diverging approaches among Member States are about to be harmonised thanks to a Commission proposal for a Directive on the protection of whistleblowers reporting irregularities in certain areas of the law which are considered to be crucial for the health and safety of citizens, the stability of the financial system, the EU’s financial interests, etc. The Directive provides for the setting-up of early warning systems in companies with more than 50 employees or communities with more than 10 000 inhabitants. The text introduces important safeguards, such as an exemption from liability for breaches of contractual or legal restrictions on the disclosure of information. The Directive also contains a list of support measures to be put in place for whistleblowers.
Whistleblowing is not an obligation. Internal alerts are encouraged, but public whistleblowing, in particular by investigative journalists or via social networks, may also qualify for protection. Particularly in the event of a failure to act by the recipients of an alert or if the whistleblower has reasonable grounds to fear a manifest or imminent threat to a public interest, collusion between the authorities and their institution, or reprisals. The Directive establishes an obligation for authorities and undertakings to provide feedback within three to six months, as appropriate.
Since the Directive also covers infringements affecting the EU’s financial interests, staff members who are also EU citizens will be able to invoke the protection arising from the transposition of the Directive into national law if they report illegal conduct detrimental to those interests, as required by national law. It is therefore important that the Staff Regulations be aligned with the Directive on a number of fronts. It will also need to be adapted to the establishment of the European Public Prosecutor’s Office, which will be one possible transmission channel.
The European Parliament adopted a draft of the Directive in April 2019. It still needs to be approved by the Member States, but they are expected to adopt it by the end of the year.
Some views on the current system of internal whistleblowing
The system currently in place for the EU institutions has certain shortcomings which are likely to affect its effectiveness. For example, whistleblowers are not sufficiently informed about the follow-up to an alert and cannot therefore assess the utility of their approach in relation to the objective of protecting the EU’s interests. The response time of authorities following an alert could be shortened in such a way that whistleblowing could reasonably have the effect of ending the reported irregularity. More speed and feedback in the follow-up of reports would enhance the credibility of the system and users’ trust that it will contribute to more ethical governance.
Does the possibility of whistleblowing genuinely help to establish ethical governance within an institution? While whistleblowing certainly works as a deterrent and an incentive to abide by the rules, there is no certainty that this will be sufficient to ensure ethical governance. On the one hand, directing behaviour under the threat of repression is not strictly ethical and, on the other hand, ethical alerts will have no effect if the coercive system in general is not, or barely, applied to certain situations or persons.
The threat of an ethical alert allows irregularities to be stopped in certain cases; it also helps to ensure that the staff of the institution is more likely to comply with the rules, whatever the field (mission expenses, working time, conflicts of interest, outside activities, etc.). Fear of whistleblowing by a colleague, and therefore of being charged in disciplinary or criminal proceedings, has a deterrent effect.
Conversely, there is concern at the level of the EU institutions that, when the threat of sanctions is low, there is proportionally more inappropriate or irregular behaviour. In any event, a form of governance in which certain behaviour is motivated by the deterrent effect cannot be regarded as ethical. Compliance with the rules must be inspired by the duty of public officeholders to lead by example. And to act selflessly — a fortiori when they are part of the governance structure rather than because of the fear of being identified and punished. Ethical governance is the culmination of a long process. In this sense, whistleblowing is a prerequisite for compliance with the rules of the institutions, and will remain so as long as the ethical values of integrity, selflessness and exemplarity have not been sufficiently mainstreamed to drive the highest standards of behaviour.
This article was first published on the 2/2019 issue of the ECA Journal. The contents of the interviews and the articles are the sole responsibility of the interviewees and authors and do not necessarily reflect the opinion of the European Court of Auditors.
