The progress of the transposition procedures of the EU Directive on the protection of whistleblowers

The progress of the transposition procedures of the EU Directive on the protection of whistleblowers

Romanian authorities promise that, by the end of 2021, Romania will have a project to implement the EU Directive no.1937/2019, regarding the protection of people who report wrongdoings that affect public interest, without the risk or fear of reprisals or social stigma. The task is a difficult task, due to the fact Romania already has a law that addresses this aspect. Written in the period before the country joined the EU, the law ensures, on paper, high standards of protection for whistleblowers. Unfortunately, the law is either ignored, evaded, or insufficiently applied. As a result, whistleblowers are discouraged to act and to fulfil their role of active and responsible citizens.  

Experts say one of the reasons for the flawed implementation is that there’s no real interest in perfecting the instruments necessary for whistleblowing, as they can reveal corruption, human rights violations and breach of Community standards. As the current Romanian law was written during the pre-accession period to the EU, as a promise to the European institutions. But we had no awareness campaigns to convince the citizens – fearful and hesitant to talk about wrongdoing – of the value of this democratic instrument, how to use it safely and about its benefits.   

With a currently non-functional national law on whistleblowing, our interest is that the new European regulations must be adopted in a way that makes them more than just a bunch of legal texts that promise protection on paper, in a sort of legal utopian scenario, detached from the reality of whistleblowers in Romania and the problems they face. 

The Center for Independent Journalism is part of the newly established CivicAIP Network, which aims to promote the concept of whistleblowing in Romania as a fundamental way to ensure a responsible working environment in public and private organizations, defined by integrity and with immunity to abuses and discrimination. The Network is also interested in the transparent implementation of the European Directive for the protection of whistleblowers.

In an event organised in November 2020 by CivicAIP Network, Silviu Popa, a representative of the National Integrity Agency (ANI), declared that first we must emphasize the importance of whistleblowers. Then, in order to make this instrument functional and efficient, we must defuse the public’s reluctance regarding whistleblowing and have a public discussion about the protection offered to these people. The Directive tackles extensively this topic, but it’s up to the national legislation to bring effective transposing solutions for the EU law.

The ANI representative also underlined the fact that “not every law that sounds good on paper will also be efficient in reality”. The whistleblowing mechanisms are not simple, but rather complex, as they touch on sensible aspects of any organisation, public and private. The new norms must be adapted to national profiles and realities, in order to be efficient and actually implemented. 

The event brought together representatives from the NGO sector, experts in integrity and anti-corruption public campaigns, and representatives of public institutions relevant for the transposition and implementation procedures, like the Ministry of Justice and National Integrity Agency. The meeting already offered some of the answers we needed. 

What is the state of the transposition procedures in Romania?

Representatives from the Ministry of Justice say that they already formed a working group, at the beginning of this year, with the task of writing the text of the law to transpose the European Directive. A first draft was already sent for review to several institutions. The Ministry of Justice hopes to open the project for public debate before the end of the year.

In Romania, the transposition process is also monitored through the EU Whistleblowing Meter, an international instrument that follows the transposition procedures in various countries.    

What are the specific provisions for whistleblowing mechanisms and channels imposed by the new directive? 

The current national law allows whistleblowers to report in an alternativ or cumulative way, through internal and external channels. The directive encourages reporting especially through internal channels (although not exclusively or mandatory) in cases where the whistleblower is not afraid of reprisals and the report can be solved or addressed, and only then on external channels and only in certain circumstances. The aim of this recommendation was that the information from the report should reach the competent structures that can actually contribute to solving that respective problem. 

The Ministry of Justice mentioned this standard as a possible inferior one to the corollary one in the national law that’s in force at the present time in Romania, and is looking for solutions for such situations so that the transposition norms will not lower the level of these standards for whistleblowing mechanisms and procedures.            

What is the “competent authority” mentioned by the directive?

Anca Stroe (expert within the Ministry of Justice) says that it’s not yet clear if this “competent authority” will be a single entity or several. EU member states have different views on this, but the National Integrity Agency insists that in order to be functional such an institution needs to be sufficiently independent, to act as a filter for the whistleblowing tsunami that’s expected.      

Who will manage the whistleblowing channel?  

There’s a public discussion about outsourcing the whistleblowing channels to an outside administrator, independent and unbiased, that offers a stronger guarantee of integrity, objectivity and good faith. 

But if the administrator of the whistleblowing channel is to be chosen from among the members of the specific organisation, be it public or private, the most important thing will be that this person must have the trust of the collective and show integrity and good faith.

How will the reports be handled? What else must we know after the transposition? 

Each organisation will have to set up clear procedures for the administration of the whistleblowing system and the procedures in place, with a precise description of roles and competences for the administrators. 

The directive requires certain standards to be respected by the whistleblowing systems, regardless of the technical solution they choose to apply. Among them is the obligation that the procedures describing the concrete use and administration of a whistleblowing system must include solutions for a deadline of a maximum of 7 days since the filing of a complaint for its confirmation and a reasonable deadline of a maximum of 3 months since the confirmation of registration for feedback offered back to the whistleblower regarding the actions taken on that complaint.     

ISO standard 37002

It’s well known that ISO (the International Organization for Standardization, a network of national standards bodies from 163 countries which sets international standards) is working on Standard 37002 – Whistleblowing Management Systems – Guidelines. It’s estimated that the final draft of the document will be ready by the summer of 2021, before the end of the transposition process.  

Radu Răuță, a member of the working groups in the ISO technical committee 309, says that the elaboration process for this standard has a strong focus on protecting whistleblowers, but also the people named in the reports, to avoid cases of bad faith reporting. The ISO standard also covers the procedures for receiving and evaluating reports, for starting an investigation, advice for extending the number of reporting channels – email, phone, mail, etc. – and ways to protect the confidentiality of the whistleblower.

They are also working on setting procedures for compensating possible damages done by bad faith or just incorrect reporting. Another focus is on keeping a very clear record of all actions, in order to improve the system.  

The Center for Independent Journalism (CJI) is an ambassador for the whistleblowing mechanism Expanding Anonymous Tipping (EAT), a project based on the digital instrument GlobaLeaks. We reached out to potential beneficiaries of the project, which told us that they do not need new whistleblowing regulations if they will not meet the real needs of whistleblowers, and just be formal texts with no connection to reality. The talks helped us to formulate a wide list of questions and dilemmas on how the new directive can solve current problems. We’re now researching those answers. As an NGO, we can monitor the transposition procedure for the directive and react when necessary.