EU Member States had the obligation to transpose Directive (EU) 2019/1937 of the European Parliament and of the Council of 23 October 2019 on the protection of persons who report breaches of Union law to their national law. Only seven out of twenty-seven Member States managed to do so in time, respecting the deadline of 17 December 2021.
The Whistleblowers Directive aims to offer an important protection against retaliation for persons, including workers, who report on breaches of Union law (which covers a vast array of legal provisions, from consumer protection to GDPR rules). Legal entities and governments were also asked to create internal reporting mechanisms to install formal procedures for whistleblowers. By 17 December 2021, authorities and legal entities (companies) of 250 or more workers should have established such an internal reporting mechanism. For smaller companies this obligation only enters into force on 17 December 2023.
Only Bulgaria, France, Lithuania, Malta, Austria, Portugal and Sweden had implemented the Directive as of 17 December 2021. This means that 20 Member States have failed to do so. Most of these Member States started too late with the preparations for the transposition and are still working out the details of the national systems. Sometimes political events like the political crisis in the Netherlands and the election of the new Chancellor in Germany have caused delays. In any case, the reporting employees will be faced with an unequal protection in the different Member States.
The Commission is expected to launch infringement procedures against the underperforming Member States. This procedure will take some months and can lead to the Commission referring the matter to the Court of Justice, which can impose penalties. To avoid this, the Member States are expected to finalise their transpositions in the course of 2022.
Key Action Points for Human Resources and In-house Counsel
- New whistleblower mechanisms in effect in 7 Member States.
- In the other 20 Member States, new rules are expected in the coming months.
- Prepare your company for the implementation of an internal reporting mechanism.