On December 18, 2015, the Official Journal of the European Union published the European Commission’s (EC’s) new Implementing Directive on whistleblowing under the European Union’s Market Abuse Regulation. Article 32 of the Market Abuse Regulation mandated that the EC should publish pan-European procedures whereby persons may bring new information to the attention of EU regulators and assist the latter in detecting and imposing sanctions for market abuse offences.
EU authorities have identified that whistleblowers may be deterred from reporting concerns to regulators in the European Union for fear of retaliation, discrimination or disclosure of personal data, and consequently the new Implementing Directive outlines arrangements to ensure the overall protection and the respect of the fundamental rights of whistleblowers and accused persons. However, persons who knowingly report wrong or misleading information to EU regulators will not be considered whistleblowers and therefore will not benefit from the protection mechanisms.
The Implementing Directive also outlines the following:
- mechanisms for anonymous reporting to EU regulators and the application of protection mechanisms where an anonymous whistleblower decides to reveal its identity to the EU regulator at a later stage (the Implementing Directive allows that whistleblowers should be free to report either through internal procedures, where such procedures exist, or directly to the relevant EU regulator);
- requirements for EU regulators to establish dedicated whistleblowing channels of communication, requiring that these are: (1) separated from general communication channels of the regulator, including those through which the regulator communicates internally and with third parties in its ordinary course of business, (2) designed, set up and operated in a manner that ensures the completeness, integrity and confidentiality of the information and prevents access to non-authorized staff members of the regulator, and (3) established with appropriate information storage retention facilities;
- measures for the protection of persons working under a contract of employment (such that whistleblowers should have access to comprehensive information and advice on the remedies and procedures available under national law to protect them against unfair treatment, including on the procedures for claiming pecuniary compensation, and that the relevant EU regulator should certify such persons as a whistleblower in the event of any employment disputes); and
- measures for the protection of personal data.
The Implementing Directive went into effect on January 7.
The Implementing Directive is available here.