The European Commission has proposed new rules to strengthen protection for whistleblowers reporting breaches of EU law. This article gives a Danish perspective on the proposal.

By:​ Elsebeth Aaes Jorgensen

Firm: Norrbom Vinding

The reason for the proposed new EU rules is that whistleblowers can play an important role in uncovering unlawful activities in companies and organisations. However, few EU countries have rules adequately protecting whistleblowers.

In Denmark, statutory protection for whistleblowers only exists in a few sectors, including in financial institutions and auditing firms. The enactment of the Danish Money Laundering Act in 2017 also introduced regulation of whistleblower protection in law firms, estate agencies and gambling providers. In these sectors, employees who have filed a report through a whistleblowing scheme enjoy special protection against ‘unfavourable treatment’ or ‘unfavourable consequences’, such as dismissal.

In light of a number of recent scandals, including the Cambridge Analytica revelations, the EU has focused on strengthening the rules on protection for whistleblowers. Consequently, the Commission has proposed a directive to protect whistleblowers who report breaches of EU law in various areas, including health, environmental safety, product safety and personal data.

The proposal aims to protect whistleblowers from retaliation based on their reporting. For example, according to these rules, the burden of proof will be reversed in cases where a whistleblower claims to have suffered retaliation. The rules also provide access to free advice for whistleblowers and adequate remedies to prevent retaliation in such situations.

In addition, it is proposed to impose a number of obligations on employers to implement reporting channels that ensure confidentiality. Such systems must include reporting channels both within and outside the organisation, and – in special circumstances – reporting to the competent authorities and public or media reporting must also be possible. Further, the Commission's proposal involves an obligation to respond to and follow up on whistleblowers’ reports within three months.

It is proposed that the rules will apply to companies with more than 50 employees or a turnover of more than EUR 10 million. It is also proposed that the rules will apply to all state and regional administrations and municipalities with over 10,000 inhabitants.

The proposed Directive is a minimum standards directive, meaning that the Directive will only set the minimum standards for how member states are to design their national provisions so as to ‎comply with the Directive. If it is adopted, member states will have until 15 May 2021 to adjust their national legislation to comply with the rules of the Directive.